0001 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 - - - - 4 TONI L. BIANCHI, Executrix of the Estate of FRANCES R. 5 BRONCACCIO, Deceased, 6 Plaintiff, 7 vs. CASE NO. 370551 8 KAISER FOUNDATION HEALTH PLAN OF OHIO, et al., 9 Defendants. 10 - - - - 11 12 Deposition of NICHOLAS J. JOURILES, M.D., 13 taken as if upon cross-examination before Judi Sadler, 14 Registered Professional Reporter and Notary Public 15 within and for the State of Ohio, at the offices of 16 Bonezzi, Switzer, Murphy & Polito, 1400 Leader 17 Building, 526 Superior Avenue, Cleveland, Ohio, at 18 4:10 p.m. on Wednesday, March 7, 2001, pursuant to 19 notice and/or stipulations of counsel, on behalf of the 20 Plaintiff in this cause. 21 22 - - - - 23 WARE REPORTING SERVICE 24 21860 Crossbeam Lane Rocky River, Ohio 44116 25 (216) 533-7606 FAX (440) 333-0745 0002 1 I N D E X 2 Witness: Cross 3 NICHOLAS J. JOURILES, M.D. 4 By Mr. Hirshman 4 5 - - - - 6 E X H I B I T S 7 (No exhibits were marked.) 8 - - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. Mark W. Ruf, Esq. 3 Linton & Hirshman Hoyt Block Building, Suite 300 4 700 West St. Clair Avenue Cleveland, Ohio 44113 5 (216) 771-5803 6 On behalf of the Plaintiff: 7 Susan M. Reinker, Esq. 8 Bonezzi, Switzer, Murphy & Polito 1400 Leader Building 9 526 Superior Avenue Cleveland, Ohio 44114 10 (216) 875-2767 11 On behalf of the Defendants: 12 - - - - 13 14 15 16 17 18 19 20 21 22 23 24 25 0004 1 NICHOLAS J. JOURILES, M.D., of lawful age, called 2 by the Plaintiff for the purpose of cross-examination, 3 as provided by the Rules of Civil Procedure, being by 4 me first duly sworn, as hereinafter certified, deposed 5 and said as follows: 6 CROSS-EXAMINATION OF NICHOLAS J. JOURILES, M.D. 7 BY MR. HIRSHMAN: 8 A. Why don't you state your name just for the record. 9 It's Nicholas Jouriles, J-o-u-r-i-l-e-s. 10 Q. And your date of birth? 11 A. 1-2-56. 12 Q. Okay. And your home address? 13 A. 398 Bentleyville Road, Moreland Hills, Ohio. 14 Q. And tell us a little bit about what your profession 15 and where you're employed. 16 A. I'm an emergency physician employed at MetroHealth. 17 Q. MetroHealth Medical Center? 18 A. Correct. 19 Q. What is your position there? 20 A. I am the residency director for emergency medicine. 21 Q. You're the residency director, meaning you're in 22 charge of the residency program? 23 A. Correct. 24 Q. For emergency physicians? 25 A. Correct. 0005 1 Q. And in addition to that, are you a staff physician? 2 A. Correct. 3 Q. So in addition to being the director of the 4 residency program, you also do your allotted share 5 of rotations in the emergency room? 6 A. In the emergency department, yes. 7 Q. In the emergency department. And how many would 8 that be in a given week? How many hours of actual 9 emergency room physician work do you do? 10 A. 20 hours per week. 11 Q. And your duties as a director of the residency 12 program entail doing what? 13 A. Administrative responsibilities for the residency, 14 teaching for residency, keeping track of all the 15 residents and filling out the necessary forms. 16 Q. So it's a -- it's more than simply an honorary 17 title. There seems to be a lot associated with 18 performing those functions -- 19 A. That's correct. 20 Q. -- in terms of administrative work, et cetera? 21 Can you tell me what other duties you have 22 other than those that we've already outlined, if 23 any, in your professional life on a weekly basis? 24 A. I guess I'm not sure what you're asking. 25 Q. Well, for instance, I'm looking at your CV and I 0006 1 note that in addition to the duties that you've set 2 forth at Metro you also seem to have certain 3 functions at the Cleveland Clinic and certain 4 functions at Allen Memorial Hospital? 5 A. As part of my duty as a residency director, we see 6 patients at the Clinic, as well, and I supervisor 7 my residents at the Clinic, as well. So I do have 8 staff privileges at the Clinic. There was a period 9 of time that I had staff privileges at Allen and 10 that's no longer. 11 Q. Allen is affiliated with the Clinic or not? 12 A. No. 13 Q. It's an independent entity? 14 A. That, I'm not sure about. 15 Q. It is. It's one of the few these days. 16 So you don't really spend much time at the 17 Cleveland Clinic other than -- I don't want to put 18 words in your mouth. Am I correct in suggesting 19 that you don't actually do rotations at the 20 Cleveland Clinic? 21 A. That's incorrect. 22 Q. You do? 23 A. My residents spend time at the Clinic and I spend 24 time seeing patients and teaching at the Clinic. 25 Q. All right. How much time do you spend at the 0007 1 Cleveland Clinic? 2 A. It varies from month to month. 3 Q. Give me an average over a year's span, if you 4 would, a monthly average over a year's span as to 5 the amount of time you spend at the Cleveland 6 Clinic. 7 A. Between two and five days per month every month for 8 the whole year. 9 Q. And by "days," do you mean an eight-hour shift? 10 A. A full day. 11 Q. Is a full day eight hours a day? 12 A. Plus administrative time typically, yes. 13 Q. When you say the Cleveland Clinic, we're talking 14 about the Cleveland Clinic emergency department, 15 obviously? 16 A. Correct. 17 Q. If I understand correctly the Cleveland Clinic has 18 two emergency departments, one's Kaiser, one's not; 19 fair statement? 20 A. Correct. 21 Q. Which one are you associated with? 22 A. The Cleveland Clinic part. 23 Q. You don't have any associations whatsoever with the 24 Kaiser emergency room? 25 A. No. 0008 1 Q. Okay. They're right next door to each other, if 2 I'm not mistaken? 3 A. Correct. 4 Q. Two doors, you can walk in one and get one set of 5 doctors, you can walk in the other and get another 6 set of doctors; is that correct? 7 A. That is correct. 8 Q. And by virtue of the role that you play at the 9 Cleveland Clinic, are you familiar with the way 10 that this Kaiser emergency room functions? 11 A. No. 12 Q. Do you have any input into the way that the Kaiser 13 room functions? 14 A. No. 15 Q. Do you have any -- is there ever any overflow from 16 one room to another when circumstances require it 17 because of overload at one room? 18 A. Not by design. 19 Q. Well, by practicality I guess is what I'm asking. 20 A. I mean, there are times when emergency departments 21 go on divert. The patients get diverted elsewhere, 22 but that's not an ongoing policy of either place. 23 Q. And when that divert function occurs at one of 24 those two emergency rooms, at the Cleveland Clinic 25 it's a very easy divert because you just have to go 0009 1 through a door right next door, I take it? 2 A. That isn't necessarily what happens. 3 Q. So sometimes a diversion occurs to an emergency 4 room on the other side of town even though there's 5 an emergency room right next door? 6 A. Sometimes. 7 Q. Why would that occur? 8 A. I don't know. 9 Q. All right. So the protocols that are used at the 10 Cleveland Clinic are totally different than 11 protocols used at the Kaiser emergency room at the 12 Cleveland Clinic? 13 A. That, I don't know. 14 Q. Okay. Do you know any of the folks at the 15 Cleveland Clinic Kaiser emergency room? In other 16 words, do you know the folks who are responsible 17 for running that room? 18 A. I've met the director, Peter King. 19 Q. Peter King. You've met him more than once? 20 A. Yes. 21 Q. Give me some idea as to what your relationship with 22 him is. And I use the term relationship without 23 knowing whether that's a correct designation or 24 not. I guess you'll tell me what it is. 25 A. We say hi to each other. 0010 1 Q. All right. So when you are at the Cleveland Clinic 2 on your -- I think you said four or five times a 3 month when you're on that rotation? 4 A. Two to five times a month. 5 Q. -- two to five times a month, it's on those 6 occasions that you'll typically run into Dr. King? 7 A. On occasion. 8 Q. Okay. As I look at your CV, I also note that 9 you've got certain titles associated with the 10 department of surgery at Case Western Reserve 11 University? 12 A. Uh-huh, yes. 13 Q. You learned that rule. You were told that rule, 14 you've got to answer yes or no. 15 Have you been deposed on many occasions? 16 A. No. 17 Q. No, okay. That is a rule that we -- it's one of 18 the unbending rules. You've got to answer yes or 19 no or in sentences, otherwise this lady is not 20 going to pick it up. 21 Tell me a little bit about what your role is 22 in the department of surgery at Case. 23 A. Every faculty member at MetroHealth has to have an 24 appointment at the medical school. There is not a 25 department of emergency medicine at this medical 0011 1 school, so my academic apointment is through the 2 department of surgery and I function as an 3 associate professor at the department of surgery at 4 the medical school. 5 Q. But your training is not as a surgeon? 6 A. No. 7 Q. And you don't hold yourself out as a surgeon? 8 A. No. 9 Q. And you don't hold yourself out as one who is in a 10 position to make -- to render opinions on medical 11 matters of a surgical nature; fair statement? 12 A. I am an expert on emergency medicine. 13 Q. All right. So what I suggested is correct, you 14 don't hold yourself out as someone who is in a 15 position to render opinions about, number one, 16 let's say the appropriateness of surgery under 17 various circumstances? 18 A. There is an overlap between emergency medicine and 19 surgery. 20 Q. Okay. Let me ask you this. You're not a 21 cardiothoracic surgeon? By virtue of the fact 22 you're not a surgeon, all the more fact you're not 23 a cardiothoracic surgeon? 24 A. Correct. 25 Q. And when it comes to determinations on patients of 0012 1 yours as to whether surgery will be done or won't 2 be done, ultimately that's a surgical question 3 that's dealt with by the surgeon who is going to be 4 doing the procedure; fair statement? 5 A. I need to know when surgery is indicated for my 6 patients, but ultimately whether the surgery gets 7 done is up to the surgeon. 8 Q. All right. Do you feel that you are in a position 9 to render opinions -- that you have the requisite 10 expertise to render opinions regarding the 11 mortality associated with surgical procedures on 12 the aorta to repair a dissecting aneurysm -- an 13 aortic dissection, I should say? 14 A. The literature on that is not part of my specialty. 15 Part of my specialty is to know when the mortality 16 is low or high, not by any given technique or not 17 by any given presentation. 18 Q. All right. So you have general information 19 regarding mortality rates associated with repairs 20 of the aortic dissection, but when it comes to 21 determining whether a particular patient presents 22 in a way that fits within those figures or not, you 23 would defer to a cardiothoracic surgeon; fair 24 statement? 25 A. It's my specialty to know when people need to go to 0013 1 the operating room and what their general mortality 2 is. 3 Q. Let me ask you this. What's the general mortality, 4 as you understand it, for patients who undergo 5 surgery to repair an aortic dissection? 6 A. I don't know the answer to that, but in general, 7 it's very high. I can't give you the specific 8 number. 9 Q. You can't give me a specific number as to what the 10 mortality rate is for that procedure, correct? 11 A. Correct. 12 Q. And therefore, you would defer to others who have 13 more specialized knowledge in that area when it 14 comes to answering that question; fair statement? 15 MS. REINKER: I'll stipulate I'm not 16 going to ask him that at trial, if that 17 changes anything. 18 MR. HIRSHMAN: Well, it's a simple 19 question. I think he can probably respond 20 to it, as well. 21 A. Each patient's mortality needs to be 22 individualized. 23 Q. I understand. And you're not the one to do that? 24 You would defer to a cardiothoracic surgeon to 25 engage in that individualization? 0014 1 A. Correct. 2 Q. All right. You're certified in advanced cardiac 3 life support, I see? 4 A. I'm not sure whether I am currently or not. 5 Q. You've taken the course. It says original 6 certification, 1984? 7 A. Right. I've taken it several times, but I'm not 8 sure if I have current certification. 9 Q. You're familiar with the program and the protocols 10 associated with it? 11 A. Yes, yes. 12 Q. Okay. I note that you did your training under 13 Dr. Peter Rosen? 14 A. Correct. 15 Q. That's the same Rosen that wrote the Emergency 16 Medicine text? 17 A. Yes. 18 Q. And I note that elsewhere in your CV you have 19 indicated that you have written a chapter in 20 Dr. Rosen's book? 21 A. Correct. 22 Q. Okay. Fifth edition, has that come out yet? 23 A. No. 24 Q. Was that a yes? 25 A. The fifth edition has not come out yet. The fourth 0015 1 edition is the current edition. 2 Q. What's the fourth edition's publication date? 3 A. The copyright date is 1998. 4 Q. All right. Do you use Rosen's Emergency Medicine 5 text within the course of your practice? 6 A. I use many textbooks. 7 Q. That's certainly one of them, I would presume? 8 A. It is. 9 Q. You have a lot of respect for that man, I would 10 imagine -- 11 A. Yes. 12 Q. -- fair statement? Okay. 13 Tell me something about Dr. Rosen, if you 14 would; what his credentials are and what makes him 15 the luminary that he is. 16 MS. REINKER: Objection as to 17 relevance. 18 Q. Go ahead. 19 A. Dr. Rosen has trained most of the leaders in the 20 specialty and wrote the first -- edited the first 21 definitive textbook in the specialty ever. 22 Q. Okay. How old is he now? 23 A. Peter is in his 60s. 24 Q. Okay. Still actively practicing? 25 A. He is semiretired. 0016 1 Q. Okay. What is Emerg/Index? I see that you've 2 written a number of articles that are associated 3 with either Micromedics or Emerg/Index which seem 4 to -- I'm guessing they're somehow related to each 5 other. 6 A. The Micromedics Company has an electronic database 7 with information, one of which is Emerg/Index, 8 which are electronic reference materials similar to 9 an electronic textbook. 10 Q. So you've written various -- you've written on 11 various subjects for that enterprise? 12 A. I've written mostly with my residents chapters for 13 that enterprise. 14 Q. In other words, you and a resident combine your 15 efforts and write a chapter? Are these called 16 books are these book chapters that we're talking 17 about here? 18 A. They are referenced as book chapters. 19 Q. Okay. And it's the joint work product of the two 20 of you that ends up with the result being published 21 electronically? 22 A. Yes. 23 Q. Who is M.R. Jouriles? 24 A. I'm sorry? 25 Q. Who is M.R. Jouriles? 0017 1 A. May I see? 2 Q. Sure, yeah. 3 A. Okay. That's my wife. 4 Q. Is she a physician, as well? 5 A. No. 6 Q. Urticaria is the subject of that chapter? 7 A. Correct. 8 Q. Urticaria is what? 9 A. Itching skin. 10 Q. Does she have a particular expertise in itching 11 skin? 12 A. She has a particular interest in it. 13 Q. Okay. So you and she combined your efforts to 14 write the chapter on urticaria? 15 A. Yes. 16 Q. Dr. Panacek is somebody who you've written with 17 extensively? 18 A. I've written articles with Dr. Panacek. 19 Q. Did you go to school together? 20 A. No. 21 Q. Did you work together at University Hospitals? 22 A. Yes. 23 Q. Have you ever been employed at Kaiser? 24 A. No. 25 Q. What familiarity do you have with CDUs? 0018 1 A. There is a CDU at the Cleveland Clinic where our 2 patients from the Clinic spend time, and that CDU 3 is shared with Kaiser. And so I've taken care of 4 patients in the CDU at the Cleveland Clinic. 5 Q. How about at Metro, is there a CDU there? 6 A. No. 7 Q. That was a no? 8 A. No. Yes, that was a no. 9 Q. Okay. Your noes are accompanied by a nod, so 10 that's what's confusing me a little. 11 So the only place where you've worked with 12 them is at the Cleveland Clinic? 13 A. I worked with them when I was a resident, but the 14 only place in Cleveland is at the Cleveland Clinic. 15 Q. And your residency was? 16 A. In Denver. 17 Q. In Denver. Was it a chest pain unit or was it 18 broader than that in that scope? 19 A. Broader. 20 Q. And the unit at the Cleveland Clinic, I take it, is 21 broader than simply a chest pain unit, as well? 22 A. Correct. 23 Q. Is there a set of protocols that relate to the CDU 24 at the Cleveland Clinic that you're familiar with? 25 A. Yes. 0019 1 Q. I've seen a set of those protocols and I guess I'm 2 wondering whether the same set of protocols that 3 applies to Cleveland Clinic patients also applies 4 to Kaiser patients? 5 A. I don't know the answer to that question. 6 Q. All right. Tell me in your own words what a -- as 7 if you could use anybody else's -- what a CDU is 8 for, what its function is. 9 A. CDU stands for clinical decision unit and it's for 10 treating patients who can be successfully treated 11 in less than 23 hours, patients whose diagnostic 12 workup takes longer than what would be required for 13 an ED stay. 14 Q. Are there certain types of patients that -- let's 15 start here. At the CDU at the Cleveland Clinic, is 16 it staffed by a physician 24 hours a day? 17 A. Yes. 18 Q. How many beds are in the CDU at the Cleveland 19 Clinic? 20 A. 20. 21 Q. And is there a physician who is placed at the CDU 22 and has as the CDU his sole responsibilities 24 23 hours a day? 24 A. From the Cleveland Clinic side, no. 25 Q. And from the Kaiser side? 0020 1 A. I don't know. 2 Q. Well, it's the same CDU, isn't it? 3 A. But it's staffed by different people. 4 Q. So it's the same room or area, but if you're a 5 Cleveland Clinic patient in the CDU at the 6 Cleveland Clinic, you have different physicians 7 caring for you than if you are a Kaiser patient in 8 that same facility? 9 A. That's correct. 10 Q. All right. On the Cleveland Clinic side, then, 11 you're familiar with how that works, I presume? 12 A. Yes. 13 Q. How is it staffed? 14 A. There is an emergency physician assigned to there 15 during the day and 24 hours a day it's staffed by 16 the attending residents and nurse practitioners in 17 the emergency department. 18 Q. Can I conclude that what you're suggesting, then, 19 is that during daytime hours there is a physician 20 in the CDU who's dedicated to that function solely? 21 A. To that function plus one or two others things, but 22 not the emergency department. 23 Q. And what would those one or two things be? 24 A. One would be the urgent care area and the other 25 would be any administrative responsibilities that 0021 1 they had. 2 Q. All right. But during the other, what, 16 hours, 3 it's staffed by emergency room personnel? 4 A. By the emergency physician attending. 5 Q. In other words, during the non-daytime hours, the 6 emergency room physician with responsibilities in 7 the emergency room also has responsibilities in the 8 CDU? 9 A. The on-duty emergency room physician covered the ED 10 and the CDU. 11 Q. All right. Are there any requirements that you're 12 aware of as to how often that physician is required 13 to see patients that are in the CDU? 14 A. There are no requirements. 15 Q. All right. Now, the CDU is an entity that has to 16 be used -- you tell me if I'm wrong on this. You 17 need to -- not every patient who is an emergency 18 room patient deserves a referral to the CDU? 19 A. That's correct. 20 Q. Some emergency room patients are more properly 21 referred home or discharged home, and then there 22 are others who are more properly admitted to the 23 hospital; fair statement? 24 A. That's correct. 25 Q. And it's fair to say that if the CDU is not used 0022 1 wisely and judiciously, its strengths can very 2 easily become its weaknesses; fair statement? 3 A. I'm not sure I know what you're asking. 4 Q. I was, frankly, looking at the protocol that the 5 Cleveland Clinic has and there's a statement in 6 there as to that effect which seems to suggest that 7 if a CDU is not used appropriately, it can end up 8 being a dumping ground for patients who shouldn't 9 be there? 10 MS. REINKER: Well, objection. Would 11 you like to produce whatever protocol that 12 you're referring to? 13 MR. HIRSHMAN: I don't have it here. 14 Q. Do you agree with that statement? 15 A. I'm not sure I've ever seen that statement before. 16 Q. Okay. Do you agree with the statement that I just 17 made? 18 A. I think that in any given situation you need to use 19 any resource you have judiciously. 20 Q. You would agree that the CDU is not a place to send 21 patients who have acute problems? Let's talk about 22 chest pain patients. Do you perceive the CDU as a 23 place where a patient is properly sent when that 24 patient is suffering from ongoing or unrelieved 25 chest pain? 0023 1 A. The CDU is designed to take care of patients who 2 have a problem that should be taken care of within 3 23 hours. 4 Q. So you send patients with chest pain that's 5 unrelieved and continuing to CDUs, I take it, 6 within the course of your practice? 7 A. I have sent patients with chest pain to the CDU, 8 yes. 9 Q. How about patients with chest pain that is 10 unremitting and unrelieved at the time of transfer; 11 do you send patients like that to a CDU? 12 A. It depends on the cause of their chest pain. 13 Q. Well, one of the problems with chest pain is you 14 don't always know the cause in advance, correct? 15 A. That is correct. 16 Q. All right. That's why oftentimes you have to 17 resort to a differential diagnosis as you're 18 working on the patient, correct? 19 A. You need to consider all possible causes for the 20 chest pain for any given patient. 21 Q. All right. And you have to be most concerned about 22 those that are potentially life-threatening, I 23 presume? 24 A. You need to be concerned about all possible causes 25 of their chest pain. 0024 1 Q. And in particular, you don't want to overlook a 2 cause that's potentially life-threatening; fair 3 statement? 4 A. As an emergency room physician, you need to look 5 for causes that are most likely and the causes that 6 are life-threatening. 7 Q. So it's essentially two columns of considerations 8 that you're concerned with as an emergency room 9 physician confronted with a patient with chest 10 pain. On the one hand, one of your parameters for 11 determining how to dispose of such a patient is by 12 determining which of them may have life-threatening 13 causes for their chest pain? That's an important 14 thing to consider; fair statement? 15 A. One of my jobs as an emergency room physician is to 16 determine what the cause is, the most likely cause, 17 and to determine what life threats might be. 18 Q. All right. And presumably those conditions that 19 are potentially life-threatening and those 20 conditions that are most likely to occur are those 21 that you have to be most prepared to rule out? 22 A. We need to be prepared to rule out anything. 23 Q. All right. You create -- okay. Let's talk about 24 -- we'll talk about this patient in a minute. 25 You're board certified in emergency 0025 1 medicine? 2 A. Yes. 3 Q. First attempt passed the boards? 4 A. Yes. 5 Q. Okay. You're not certified as an internist, I take 6 it? 7 A. No. 8 Q. Although you have, what, how many years of internal 9 medicine training? 10 A. Three. 11 Q. Okay. Have your privileges ever been lost at any 12 facility that you were involved with? 13 A. No. 14 Q. Ever revoked? 15 A. No. 16 Q. Have you ever had a license lost or revoked? 17 A. No. 18 Q. Have you ever had any disciplinary action taken by 19 the state medical board? 20 A. No. 21 Q. Have you ever been sued for medical malpractice 22 before? 23 MS. REINKER: Objection to -- 24 continuing objection. He's not being sued 25 now. You said "before." 0026 1 MR. HIRSHMAN: I did. 2 Q. Have you ever been sued for medical malpractice? 3 A. Yes. 4 Q. Okay. How many occasions? 5 A. Four. 6 Q. Four? 7 MS. REINKER: Continuing objection. 8 MR. HIRSHMAN: Sure. Yeah, you're 9 entitled to a continuing objection. 10 Q. Four times over how many years? 11 A. 14 years. 12 Q. Okay. And how many of those were resolved by 13 dismissals without any money being paid on your 14 behalf or on behalf of the entity that employed 15 you? 16 A. All. 17 Q. All of them? 18 A. All four. 19 Q. They were all dismissed? 20 A. I was dismissed from all four cases. 21 Q. And the entity who employed you was dismissed from 22 all four cases, as well? 23 A. Yes, actually. 24 MS. REINKER: Just to clarify, Metro 25 might have been the entity that employed 0027 1 him. 2 A. I'm sorry. I don't know the answer to that. 3 Q. All right. Well, let's talk about the most recent 4 one, then. In other words -- well, when was the 5 most recent one? 6 A. This past year. 7 Q. All right. Tell me a little bit about it, if you 8 could. 9 A. It was a patient who developed an illness, was 10 referred in to see me late one evening. I admitted 11 them to the hospital. They ended up with a bad 12 outcome and died several weeks and several 13 physicians later. And I was one of many people 14 named and one of many people dismissed. 15 Q. What was the disease? 16 A. The patient had a brain aneurism. 17 Q. And the outcome was death? 18 A. Yes. 19 Q. And the allegation against you was that the 20 diagnosis was not made in a timely fashion in the 21 emergency room? 22 A. The allegation against me was never clearly stated. 23 Q. All right. Was money paid on anybody's behalf? 24 A. Not that I know of. 25 Q. All right. Who represented you in that case? 0028 1 A. Deirdre Henry I think is the one last year, and the 2 MetroHealth System self-insured, as well. 3 Q. And when was the case preceding that one? 4 A. Several years ago. 5 Q. What was that one about, do you recall? 6 A. It was a child with meningitis. 7 Q. What happened? 8 A. The child had meningitis that was being taken care 9 of by somebody else at the same time I happened to 10 be in the facility. 11 Q. Your name somehow got on a chart? 12 A. Yes. 13 Q. But you weren't involved in the treatment of the 14 patient? 15 A. No. 16 Q. Okay. The facility was Metro? 17 A. Correct. 18 Q. And you were defended by whom? Who defended you in 19 that case? 20 A. MetroHealth System. 21 Q. And who was the attorney? 22 A. I don't remember. 23 Q. All right. Have you ever been defended by anyone 24 from the firm of Bonezzi, Switzer? 25 A. Never. 0029 1 Q. How did you meet Susan Reinker? 2 A. I don't remember. 3 Q. Was it before this case? 4 A. Yes. 5 Q. So you knew her before she asked you to review this 6 matter? 7 A. Correct. 8 Q. How long had you known her? 9 A. I'm not sure. A few years. 10 Q. All right. Had you worked with her on professional 11 matters in the past? 12 A. I reviewed one or two cases for her before. 13 Q. Okay. Were you able to help her in both of those 14 cases? In other words, were you able to defend the 15 doctor that she represented? 16 A. This is the first time I've ever given a deposition 17 for her. 18 Q. Okay. Were you able to defend the doctor that she 19 represented in those other cases was my question, 20 though? 21 A. I guess I'm not sure what you mean by your 22 question. 23 Q. Presumably Ms. Reinker approached you to render an 24 opinion as to whether the physician she was 25 attempting to defend departed from acceptable 0030 1 standards of care or whether that physician's 2 behavior in any way resulted in an injury or death; 3 fair statement? That's the usual set of questions 4 that are asked in one form or another. Is that 5 what was asked of you on those two occasions? 6 A. That is what was asked. 7 Q. And were you able to provide her with answers that 8 allowed her to formulate a defense in those cases? 9 A. In one case my opinion was that the care met 10 standards, and in one case, it wasn't. 11 Q. All right. Other than those two cases where you 12 worked with Ms. Reinker, have you been involved in 13 any other medical-legal matters? 14 A. Yes. 15 Q. Okay. Can you tell me how many? 16 A. One more. 17 Q. And who was that for? 18 A. It was for an attorney in Providence, Rhode Island. 19 Q. How long ago was that? 20 A. Last year. 21 Q. And did you testify in that case? 22 A. No. 23 Q. So this is the fourth case you've been involved 24 with from a medical-legal perspective? 25 A. Correct. 0031 1 Q. Have any of them been plaintiff's cases? 2 A. Yes. 3 Q. Which one? 4 A. The Rhode Island case. 5 Q. All right. Can you tell me about that one? 6 A. It was a case of a child in the emergency 7 department who died. 8 Q. From what? 9 A. Myocarditis. 10 Q. Okay. And you were approached by the attorney for 11 the plaintiff and asked whether you would be 12 willing to review that case and render an opinion 13 as to whether the care and treatment departed from 14 the acceptable standards of care? 15 A. Correct. 16 Q. And you were able to conclude that the care was 17 substandard? 18 A. My conclusion was the care was -- met the community 19 standards. 20 Q. Okay. You have in front of you your file, I 21 believe? 22 A. Correct. 23 MR. HIRSHMAN: Can I take a look at it? 24 MS. REINKER: Yeah. 25 Q. Is this your complete file? 0032 1 A. Yes. 2 MR. HIRSHMAN: Good. Okay. 3 (A discussion was had off the record.) 4 MS. REINKER: Toby, he wants to clarify 5 something on the record. Do you want him to 6 do that now? It's in regard to his recent 7 testimony. 8 MR. HIRSHMAN: Yeah, go ahead. 9 A. In terms of the cases I've done, I'm not sure all 10 of them were for Susan. 11 MS. REINKER: The two. 12 A. The two. 13 MS. REINKER: We talked about that 14 before. 15 Q. In other words, they may have been for other people 16 in this office? 17 A. Yeah. 18 MS. REINKER: No, this is back years 19 ago. 20 A. No, there may have been one for somebody else. 21 Q. One of them was for Susan, you're quite sure? 22 A. I've done work for Susan once before. 23 MS. REINKER: The one where he turned 24 me down. 25 A. And I'm not sure who the other one was for before. 0033 1 I'm sorry. 2 MS. REINKER: I presume by turning over 3 our correspondence you're now willing to 4 turn over yours to your experts? 5 MR. HIRSHMAN: I'll give it some 6 thought. 7 Q. Is this the complete file that you have in regard 8 to this case? 9 A. Yes. 10 Q. Did you make any notes? 11 A. Any notes I made would be on there. 12 Q. Because I don't see any notes on here, but I 13 haven't looked through it fully. Is that your 14 typical practice to make notations in the records 15 that you're reviewing? 16 A. I'm not sure I have a typical practice. 17 Q. You've done it four times? 18 A. I think in this particular case I made notes. 19 Q. And where are those notes? 20 A. In the record or in what you have in your hand. 21 Q. In the actual records? 22 A. In what you have in your hand. 23 Q. I'm looking at them. I don't see any. 24 MS. REINKER: They're in the 25 depositions. 0034 1 Q. So there are no notes in the medical records, the 2 notes are in the depositions? 3 A. Again, they would be mostly here in the 4 depositions, yes. I don't recall any that I wrote 5 actually on the record. 6 Q. Okay. Do you have any reason to dispute the cause 7 of death as set forth in the autopsy protocol from 8 the coroner's office? 9 A. No. 10 Q. Am I correct that the only depositions you've had 11 an opportunity to review are those of Dr. Haluska, 12 Dr. Ryder and Ruth Tlacil, LPN? 13 A. Those are the depositions that I reviewed when I 14 wrote my opinion. 15 Q. That wasn't my question. 16 A. Dr. Mulliken's deposition arrived in the mail 17 yesterday, but I have not read it. 18 Q. All right. So with listing those four depositions, 19 Dr. Mulliken, Tlacil, Ryder and Haluska, is that a 20 complete listing of the depositions you've 21 reviewed? 22 A. Yes. 23 Q. Up to the present date? 24 A. Correct. 25 Q. Okay. All right. I don't see a letter here that 0035 1 enclosed the initial set of records that were sent 2 to you. Did you have such a letter at one point? 3 A. I may have. 4 Q. What happened to it? 5 A. I don't know. 6 Q. I'm correct in stating that there is no such letter 7 in this pile of documents, am I not? 8 A. I gave you everything I have. 9 Q. Yeah. My question was, I'm correct in stating that 10 there is no such letter in that pile of documents; 11 is that correct? 12 A. I could look through again, but I don't think so. 13 Q. Okay. Take a look. 14 A. No, I don't see such a letter. 15 Q. When did you last see such a letter? 16 A. I don't know. 17 Q. Okay. Aside from the materials that we've now 18 described, which are the four depositions that I 19 named and the emergency room records and CDU 20 records from Kaiser from December 7th and 21 December 8th, 1997, and Exhibits 1 through 5 from 22 -- I don't know what deposition that was, but I'll 23 take a look -- from a deposition of 5-14-99, and 24 aside from the autopsy materials, have you reviewed 25 any other materials in regard to this case? 0036 1 A. There were expert opinions which I believe were in 2 here. 3 Q. All right. Anything else? 4 A. Expert opinions in here from a Dr. Kahn, from a 5 Dr. Clancy and a Dr. Avery. There's a letter I 6 wrote to Ms. Reinker. There's a letter from -- an 7 opinion from a Dr. Mulliken. 8 Q. All right. Anything else? 9 A. And there was a chest x-ray which I saw today for 10 the first time. 11 Q. Chest x-ray from December 7th, 1997? 12 A. From the emergency department. I'm not sure 13 whether it was the 7th or the 8th because it was 14 around midnight from that event. 15 Q. Okay. Have you done any research into the 16 literature in regard to this case? 17 A. I have looked at some textbooks and some articles. 18 Q. Okay. Tell me what it is that you've looked at. 19 A. I've looked at history, physical workup and 20 description of aortic dissection. 21 Q. You've looked at certain texts, I take it. Which 22 texts were those? 23 A. I don't remember which ones. 24 Q. Which texts would you have likely looked at? 25 A. Which I have -- Rosen is one textbook I have I may 0037 1 have looked at. 2 Q. You said texts in plural, so I presume that you 3 looked at at least two. What other texts would you 4 likely have looked at? 5 A. I mean, it's hard to say at this point what I've 6 looked at since it was over a year ago. 7 Q. All right. You didn't make copies of any of the 8 material that you've consulted? 9 A. No. 10 Q. You've also looked at certain journal publications? 11 A. Probably, yes. 12 Q. Can you tell me what journals those would have been 13 from? 14 A. Probably not offhand. 15 Q. All right. 16 MS. REINKER: Toby, my transmittal 17 letter is here. You saw that. 18 MR. HIRSHMAN: Let me see. I don't 19 think it is, but maybe I'm wrong. Well, 20 there are a couple of transmittal letters, 21 but not the transmittal letter from the 22 original set of documents. 23 MS. REINKER: Yeah, but there are some 24 transmittal letters. 25 MR. HIRSHMAN: Some transmittal letters 0038 1 are here. 2 Q. Might you have looked at Hersh -- the Hersh text? 3 A. It's unlikely. 4 Q. Do you consult the Hersh text from time to time in 5 your practice? 6 A. Yes. 7 Q. Okay. It's available to you and you find it to be 8 a reliable text? 9 A. It is available to me and it's one of many that I 10 consult. 11 Q. Okay. How about Brownwall? 12 A. It's available to me and it's one that I look at 13 from time to time. 14 Q. Locasto on vascular medicine, have you ever looked 15 at that? 16 A. Never heard of that. 17 Q. Rosen and Tintaneil they're both emergency texts 18 you rely on from time to time in your practice? 19 A. Those are both texts I use from time to time. 20 Q. You don't want to use the word "rely." Why is 21 that? 22 A. I'm sorry? 23 Q. You're avoiding using the word "rely." 24 A. The textbooks all have some good information and 25 some bad information in them. 0039 1 Q. You don't look at them because they're of no help 2 to you, you look at them because you need to 3 consult an authority, correct? 4 MS. REINKER: Objection. 5 A. I look at them to help in my taking care of 6 patients. 7 Q. You look at them because you're hoping to find 8 information that you don't have at your disposal 9 without those texts; fair statement? 10 A. No. I'm looking at them because I'm looking for 11 information to help my patients. 12 Q. Because you're looking for information that may be 13 of some benefit to you that you wouldn't have if 14 you didn't look at them; fair statement? 15 A. I'm looking at them to look for information that 16 will help me take care of my patients to make sure 17 I get good care for them. 18 Q. Sure. How about Earl Wilkins; do you ever consult 19 that text? 20 A. I've never heard of that text. 21 Q. Callahan? 22 A. Callahan. I don't know what textbook that is, 23 either. 24 Q. Do you ever consult articles in the American 25 Journal of Emergency Medicine? 0040 1 A. From time to time I've read articles in the 2 American Journal of Emergency Medicine. 3 Q. And JAMA? 4 A. From time to time I've read articles in there. 5 Q. Are you familiar with Hugh E. Stanley-Crawford as 6 it relates to dissecting aneurysm or aortic 7 dissections, in particular? 8 A. Offhand the name doesn't sound familiar, no. 9 Q. Have you seen any aortic dissections within your 10 practice? 11 A. Yes, I have. 12 Q. You've been practicing since what year? 13 A. I finished my residency in '87. 14 Q. So that's what, a three-year residency? Well, you 15 did internal medicine residency and then you did an 16 emergency room residency? 17 A. Correct, I did two residencies. 18 Q. Simultaneously? 19 A. Consecutively. 20 Q. Consecutively. So you've been actually engaged in 21 the practice of medicine as either a resident or a 22 trained physician since when? 23 A. '82. 24 Q. '82. How many aortic dissections have you seen in 25 your practice? 0041 1 A. My best estimate is about 25. 2 Q. 25. So somewhat more than one every year? 3 A. Okay. 4 Q. Fair statement? 5 A. Fair statement. 6 Q. Or is that the way they've unfolded, or have they 7 all come recently as opposed to earlier? 8 A. They're randomly distributed, but on average, 25 9 over 20 years. 10 Q. How many of them have you diagnosed? 11 A. The majority. 12 Q. Okay. In other words, most of them don't come with 13 a diagnosis already? You as the emergency room 14 physician would be the one who would have the first 15 opportunity to make the diagnosis in most cases? 16 A. I've been the one to make the diagnosis in most of 17 the cases I've seen. 18 Q. Okay. So it sounds like there's at least some of 19 them where you did not make the diagnosis. Am I to 20 conclude from that that somebody else in the 21 department made the diagnosis? 22 A. Or at a referring hospital. 23 Q. Okay. In other words, there may be some where you 24 had the patient -- a referring hospital? In other 25 words, a patient would come to you from a hospital 0042 1 to an emergency department that you were working 2 in? 3 A. Correct. 4 Q. How often does that occur? 5 A. Quite frequently. 6 Q. Of these 25, how many would have presented to you 7 in that fashion? 8 A. I can't give you an exact number. 9 Q. I'm trying to understand how that would occur. 10 You're describing a situation where a patient is an 11 inpatient in a hospital and is then referred to you 12 in an emergency department with a problem that's 13 presenting itself? 14 A. No. 15 Q. Well, why don't you tell me how that would occur 16 rather than me trying to guess. 17 A. Patients who were seen either in a physician's 18 office or another emergency department or an 19 outlying hospital get referred into the tertiary 20 care center for further care would come to the 21 emergency department. 22 Q. And those would have all been -- well, some of 23 those would have been while you were working at 24 Metro, some of them would have been in Colorado, I 25 presume? 0043 1 A. Some at Metro, some in Colorado, some when I was at 2 UH. 3 Q. Right. 4 A. Some at the Clinic. 5 Q. How many of those were -- these are all dissections 6 we're talking about as opposed to aneurysms? 7 A. Yes. 8 Q. And how many of them, if you know, were Type 1 9 dissections using the Dubachy classification 10 system? 11 A. I don't know. 12 Q. So you can't break it down for me as to how many 13 were Type 1, how many were Type 2, how many were 14 Type 3? 15 A. No. 16 Q. All right. Of those 25, can you tell me how many 17 of them were successfully treated? 18 A. No, I can't. 19 Q. Of those 25, can you tell me how many you diagnosed 20 before a catastrophic event occurred in the nature 21 of a rupture of the aorta or a loss of bloodflow to 22 a vital organ? 23 A. I'm afraid I can't give you an exact number. 24 Q. Well, can you give me an estimate? 25 A. Can I split the question? 0044 1 Q. By all means. By all means. 2 A. Before a catastrophic event, I'd say, oh, half, 3 perhaps a little bit more. Before end organ 4 destruction is going to be physiologically 5 impossible to tell on any given patient. 6 Q. Why is that? 7 A. Because you can end up with cellular damage that 8 you don't appreciate ahead of time, and there's no 9 way to tell. 10 Q. So what you're suggesting to me, if I understand 11 you correctly, is that half of the -- approximately 12 half the cases that you've seen of aortic 13 dissection, you didn't see until after a 14 catastrophic event occurred? 15 A. What I'm saying is the majority of cases that I've 16 seen, we've been able to establish or try to 17 establish the diagnosis before the catastrophic 18 event happened. 19 Q. All right. So there are patients who have 20 presented to you with a set of sign and symptoms 21 that you did not diagnose until after the 22 catastrophic event occurred? 23 A. There are patients that I have seen and taken care 24 of who in the course of their workup and their 25 evaluation had a catastrophic event. 0045 1 Q. All right. And died? 2 A. Correct. 3 Q. And what you're telling me is that one-half of your 4 patients fit into that category? 5 A. I'm saying less than one-half. I've said that the 6 majority of patients we were able to diagnose. 7 Q. So when you say less than one-half, can we get a 8 little bit more specific? Are you able to tell me 9 whether it's closer to 5 percent or 50 percent? 10 A. That, I probably can't. 11 Q. You can't break it down to say somewhat less than 12 half have had a catastrophic event before you could 13 get them to appropriate treatment? 14 A. Somewhat less than half have had a catastrophic 15 event while in the course of treating them, 16 diagnosing them. 17 Q. And whether that's 5 percent or just less than 50 18 percent, you can't tell me? 19 A. No. 20 Q. Would you agree that aortic dissection is the most 21 common catastrophe occurring to the aorta? 22 A. Aortic dissection is one of the diseases that can 23 occur to the aorta. 24 Q. That wasn't my question. Would you agree with me 25 that aortic dissection is the most common 0046 1 catastrophe occurring to the aorta? 2 A. I do not know what the most common catastrophe of 3 the aorta is. 4 Q. All right. You would agree with this much, it's 5 certainly much beyond an emergency room physician's 6 list of common potentially life-threatening 7 conditions associated with chest pain? 8 A. An emergency room physician who evaluates chest 9 pain should consider multiple entities. 10 Q. What is it about my questions that are so hard to 11 answer? I'm going to have her read it back and ask 12 if you can answer my question. 13 (The following question was read: You 14 would agree with this much, it's certainly 15 much beyond an emergency room physician's 16 list of common potentially life-threatening 17 conditions associated with chest pain?) 18 A. An aortic dissection as a life-threatening 19 potential cause of chest pain is not common. 20 Q. We can agree it's not common as compared to an MI, 21 correct? 22 A. MIs are much more common than dissection. 23 Q. And we can agree it's not common as compared to 24 unstable angina? 25 A. Unstable angina is much more common than a 0047 1 dissection. 2 Q. All right. But it is common when compared to 3 something like a perforated esophagus, isn't it? 4 A. A perforated esophagus and a dissection are both 5 rare events. 6 Q. So you dispute my characterization of aortic 7 dissection as a common occurrence? 8 A. Aortic dissections are a rare occurrence. 9 Q. All right. Notwithstanding the fact that you 10 characterize them as rare, you also characterize 11 them as life-threatening and, therefore, in need of 12 consideration when creating a differential 13 diagnosis on a patient with chest pain? 14 A. Aortic dissection is one of many things that should 15 be considered in a patient with chest pain. 16 Q. All right. Which are the life-threatening entities 17 that must be considered when a patient presents to 18 an emergency room with chest pain? 19 A. I don't think I can give you a complete list 20 because every disease is potentially 21 life-threatening. 22 Q. All right. Let's start with -- this is a question 23 then. Are patients -- you've looked at the records 24 of Frances Broncaccio's stay at the emergency room 25 at Kaiser on December 7th, 1997? 0048 1 A. Yes, I have. 2 Q. And you've looked at the nurse's notes in 3 association with that stay? 4 A. Yes, I have. 5 Q. How would you characterize the nature of her chest 6 pain? 7 A. May I look at the records? 8 Q. Absolutely. 9 A. Her chest discomfort is described as being chest 10 pressure. 11 Q. All right. So you dispute the characterization of 12 her chest discomfort as pain, correct? 13 A. It's described by multiple observers as being chest 14 pressure. 15 Q. So you -- it's your contention that what she had 16 was chest pressure and not pain? 17 A. It's described by multiple observers as pressure. 18 Q. And therefore, you are in a position to state, as 19 we sit here today, that what Frances Broncaccio had 20 on December 7th was chest pressure, not chest pain? 21 A. It's described as being a pressure feeling, whether 22 you call that pressure or pain, it could go -- 23 Q. It's semantics, isn't it? 24 A. It's semantics. 25 Q. And it's semantics when you have a patient present 0049 1 to an emergency room with chest discomfort, whether 2 it's pressure or pain, it's essentially of no 3 concern? 4 A. The characteristics of the pain is of concern and 5 pressure pain leads you to think of one thing. 6 Sharp, searing pain leads you to think of other 7 things. 8 Q. Let's think of it in terms of a differential 9 diagnosis. And if you have at the top of your 10 differential diagnosis myocardial infarction or 11 unstable angina, whether it's pressure or pain is 12 irrelevant to whether or not there is myocardial 13 ischemia that's going on, correct? 14 A. I'm not sure I follow your question. 15 Q. The question is simply this, chest pressure is an 16 angina equivalent, isn't it? 17 A. Not always. 18 Q. It's understood that chest pressure can be an 19 angina equivalent, correct? 20 A. Anginal pain is described as being pressure-like, 21 but angina does not need to be pressure pain. It 22 could be other kinds of pain. 23 Q. This much is clear. When a patient presents to the 24 emergency room with pressure, it cannot be ignored? 25 A. When a patient presents to the emergency department 0050 1 with any complaint, the complaint needs to be 2 evaluated. 3 Q. Chest pressure, Doctor, is as equally concerning to 4 an emergency room physician who is attempting to 5 rule out an MI or unstable angina as is chest pain, 6 correct? 7 A. Chest pain and chest pressure are both conditions 8 that need to be evaluated appropriately. 9 Q. And one is no more concerning than the other? 10 A. All patients need a complete evaluation. 11 Q. Doctor -- 12 MR. HIRSHMAN: Read back the question. 13 (The following question was read: And 14 one is no more concerning than the other?) 15 A. Both are concerning. 16 Q. All right. Plenty of patients sustain heart 17 attacks -- heart attacks without ever feeling chest 18 pain, correct? 19 A. A small percentage of patients with heart attacks 20 have no pain; that's correct. 21 Q. And many of them -- well, there is a percentage of 22 them that have no pain whatsoever, silent MIs, 23 correct? 24 A. There is a small percentage of patients that have 25 silent MIs, that is correct. 0051 1 Q. And there's a larger percentage of patients who 2 have MIs who feel the ischemia and the damage 3 caused to the heart muscle as pressure rather than 4 pain; fair statement? 5 A. There are many different symptoms including 6 pressure and pain that patients with MIs do have. 7 Q. Now, I'm looking here at the records from the 8 emergency room visit of Frances Broncaccio. Why 9 don't you turn to the nursing assessment sheet, if 10 you would. 11 MS. REINKER: Is that in the ER or the 12 CDU? 13 MR. HIRSHMAN: The ER. 14 MS. REINKER: Okay. 15 THE WITNESS: I'm not sure which page 16 we're looking at. 17 MS. REINKER: It's in the -- 18 MR. HIRSHMAN: Here. I'll show you 19 mine. 20 MS. REINKER: I think I know what 21 you're talking about, Toby. 22 MR. HIRSHMAN: Right here, Doctor. 23 MS. REINKER: Yeah. 24 A. This one? This page? 25 Q. Yep. 0052 1 A. Okay. Thanks. 2 MS. REINKER: Off the record. 3 (A discussion was had off the record.) 4 Q. Let's look at that nursing assessment that I asked 5 you to take a look at. 6 A. Okay. 7 Q. Go down to 2345 entry, if you would, which is down 8 at the bottom of the page. Do you see that? 9 A. Okay. 10 Q. It says there, Admits to dizziness on occasion. 11 Pain med, sternal, 4 out of 10. Pressure medium. 12 What do you make that to be? 13 A. That's chest pain. 14 Q. That's chest pain? 15 A. And pressure. 16 Q. All right. So there's chest pain -- 17 A. And pressure. 18 Q. -- and pressure; fair statement? 19 A. Correct. 20 Q. All right. Let's go to 1 o'clock. Dull ache 21 mid chest, described as ache-like pressure. Do you 22 see that? 23 A. No. 24 Q. Look at the last line and then go over to the next 25 page. 0053 1 A. Oh, I'm sorry, okay. Okay. 2 Q. You're not going to dispute that that's a 3 description of pain, are you? 4 A. That's what it says. 5 MS. REINKER: It says pressure. 6 A. It says, Dull ache mid chest, described as 7 ache-like pressure. 8 Q. So that's pressure and it's also pain, correct? 9 A. It's described as pressure here. 10 Q. And ache? Or do you wish to discount the 11 characterization of ache? 12 A. It's described as an ache, correct. 13 Q. All right. Chief complaint, the top of the page, 14 first page. 15 A. The top of the page, first page. We're going back. 16 Q. Chest pain about 11 o'clock. See that? 17 A. Okay. 18 Q. Do you dispute that that's a discussion of pain? 19 A. That's what the nurse wrote, correct, chest pain 20 about 11 o'clock. 21 Q. Do you dispute that's what was happening about 22 11 o'clock? 23 A. That's what the nurse described. 24 Q. Do you dispute that's what the nurse described? 25 A. That's what the nurse described. 0054 1 MS. REINKER: Objection. 2 Q. Do you have any basis to dispute what the nurse 3 described? 4 A. The paramedics -- no, I don't dispute what the 5 nurse described, but just that the paramedics 6 described it as being chest pressure and this here 7 in the physician note says chest pain, and then 8 further down it says, At the time of her arrival 9 she denied any chest pain or pressure, but after 10 she was here for a while, she indicated she had 11 some burning. 12 Q. Can we agree that Frances Broncaccio suffered, 13 during the evening of December 7th at least, at 14 various times from chest pain? 15 A. She had chest pain described, chest pressure 16 described and she had symptoms that were described 17 by several different observers in different ways, 18 one of which probably did include some type of 19 chest pain. 20 Q. All right. In addition to these documentations of 21 chest discomfort, at various points in time there's 22 also a documentation by a nurse of chest pressure 23 having been constant as of 2:14 in the morning for 24 the past three hours, correct? 25 A. That is what it says at 2:14. 0055 1 Q. Is that a reassuring sign for an emergency room 2 physician? 3 A. This patient had chest pain and/or pressure that 4 was in the process of being evaluated. 5 Q. My question was not whether it was being evaluated. 6 My question was whether or not that three hours of 7 constant pressure constituted a reassuring sign for 8 an emergency physician evaluating such a patient? 9 A. I guess I'm confused about what you're asking about 10 reassuring sign. 11 Q. If this was your patient with three hours of chest 12 pressure, would you have simply turfed the patient 13 and wiped your hands of the situation? 14 MS. REINKER: Objection. 15 A. Are we talking about any case or are we talking 16 about this case? 17 Q. What would you have done with a patient presenting 18 to you at 2:15 in the evening with three hours of 19 chest pressure which is documented by a nurse as 20 having been constant in nature? Would you have 21 sent that patient to a CDU and never again taken a 22 look at that patient through the rest of your 23 shift? 24 MS. REINKER: Objection. 25 A. This particular patient presented with chest pain 0056 1 or pressure that's been described in various ways 2 by the people that cared for her, and she was 3 placed in the CDU to rule out myocardial 4 infarction. 5 Q. Doctor, the truth of the matter is no doctor saw 6 her once she was transferred to the CDU until she 7 arrested at 1300 hours and a few more minutes, 8 after 1 o'clock in the afternoon the next day; 9 isn't that true? No doctor saw her until she 10 arrested from the time of her transfer? 11 A. There is no physician notes. 12 Q. I want you to assume that that's true. No doctor 13 saw her during that period of time, from the time 14 of her transfer to the CDU until she arrested the 15 next morning? 16 A. I'm not sure I can make that assumption. 17 Q. I'm asking you to make that assumption, okay? And 18 if you've read the depositions, you will know that 19 that assumption is based on fact. 20 Now, is that how you would have treated a 21 patient that presented to you in an emergency room 22 with three hours worth of constant chest pressure? 23 MS. REINKER: Objection. Are you 24 saying if the patient had presented that way 25 at 11:30, what would have been done, what 0057 1 workup would have been done? What are you 2 talking about? 3 MR. HIRSHMAN: You know what I'm 4 talking about. If you want me to be more 5 precise, I'll be more precise. 6 MS. REINKER: She's in the middle of a 7 workup, Toby. That's not fair. 8 Q. Doctor, let's talk about this patient specifically. 9 Did this patient have a history of prior MI or 10 prior chest pain before presenting to the ER? 11 A. This patient did not have a history of chest pain 12 or MI. 13 Q. Prior to the 7th, correct? At any time prior to 14 the 7th? 15 MS. REINKER: Are you talking what they 16 knew at the time or based on autopsy? 17 MR. HIRSHMAN: What they knew at the 18 time. 19 A. What they knew at the time, no. 20 Q. This patient presented with a history of syncope at 21 11 o'clock? 22 A. A history of syncope immediately before she came in 23 at approximately 11 o'clock. 24 Q. Patient presented with a headache in connection 25 with that syncope? 0058 1 A. Could you show me where? 2 Q. Try the run sheet. 3 A. Patient also complained of -- complained of 4 headache according to the paramedics, correct. 5 Q. She was weak. There was a history of weakness, was 6 there not? 7 A. That was her chief complaint with the paramedics. 8 Q. She had chest pressure, as we've just described, as 9 of 2:14 in the morning on the 8th of three hours' 10 duration, correct? 11 A. That's what the nurse recorded at 2:14, correct. 12 Q. Thereafter at 3 o'clock she had back pain, didn't 13 she? 14 A. The nurse described back pain at 3 in the morning. 15 Q. All right. Are you aware whether there were any 16 complaints of back pain earlier? 17 A. I was unable to find that anywhere in the record. 18 Q. Did you look at any depositions that might have 19 helped you to determine whether there was back pain 20 while Mrs. Broncaccio was still in the emergency 21 room? 22 A. I looked at the depositions that we talked about 23 before and I can't remember what each one said at 24 this point in time. 25 Q. You did not have the deposition of Toni Bianchi, 0059 1 though, did you, to look at? 2 A. I have not seen that deposition. 3 MS. REINKER: Not yet. 4 Q. And you haven't seen the deposition of Donna 5 Broncaccio, have you? 6 A. No. 7 Q. All right. What is your understanding from 8 Dr. Haluska's deposition as to how many physical 9 examinations he did on Mrs. Broncaccio? 10 A. May I go back and look? 11 Q. Certainly. Well, rather than doing that, if you 12 don't remember I'm going to present you with a 13 hypothetical. 14 I want you to assume that he did physical 15 examination; first one, according to him, included 16 an examination of the heart which included no 17 diastolic murmur and that he did one somewhat 18 later, which discovered an interim, new diastolic 19 murmur, all right? 20 We know that the EKGs in this case were 21 negative for ischemia, correct? 22 A. The initial EKG did not show any new ischemia. 23 Q. And the subsequent ones? 24 A. The subsequent ones were unchanged. 25 Q. All right. So they didn't show any either, 0060 1 correct? 2 A. Correct. 3 Q. We have enzymes which were done which showed no 4 evidence of MI, correct? 5 A. The enzymes were all negative. 6 Q. All right. We have a history of a patient with 7 hypertension, correct? 8 A. She has a past medical history of hypertension, 9 correct. 10 Q. We have a patient who is anxious and moving and 11 agitated and can't get comfortable, don't we? 12 MS. REINKER: Objection. 13 A. I'm not sure I saw that in the record. Could you 14 point that out to me, please? 15 Q. Let's assume that to be the case, okay? 16 MS. REINKER: It's not the case. It's 17 the exact opposite in the nurse's notes. 18 MR. HIRSHMAN: I differ with you on 19 that. 20 MS. REINKER: It says, She's resting 21 comfortably in bed. I'm looking at one at 22 1 a.m. Another one at -- 23 MR. HIRSHMAN: All right. 24 MS. REINKER: What are you looking for? 25 Q. I think there are nurses' statements -- we'll just 0061 1 delete that one. We won't deal with that one. 2 And we have a loss of blood pressure during 3 this visit to Kaiser, don't we? 4 A. I'm not sure I saw that. 5 Q. We have here -- at 1:05, we've got a blood pressure 6 of 93 over 45. That's not a good blood pressure to 7 have, is it? 8 A. I'm sorry, I don't know where you are. 9 Q. I'm at 1:05. 10 A. Oh, I'm sorry. 11 Q. In the emergency medical screening exam, nursing 12 assessment that we've been talking about all along. 13 MS. REINKER: Hold on. We'll go 14 backwards. Somewhere in there. 15 A. Okay. 1:05? 16 Q. 1:05 in the morning. 17 A. She was 93 over 45. 18 Q. 93 over 45. 19 A. And at 1:50 she was 112 over 55. 20 Q. They gave her a bolus, correct? 21 A. Correct. 22 Q. The fluids, correct? 23 A. She was given some fluids continuously. 24 Q. Are you suggesting to me that if you were 25 confronted with a patient like this, you would have 0062 1 turfed them over to the CDU? 2 MS. REINKER: Objection. 3 Q. Are you suggesting to me that that is what you 4 would have done with this patient if this were your 5 patient? 6 MS. REINKER: Is your question, is 7 there anything inappropriate to doing that? 8 MR. HIRSHMAN: That's not my question. 9 You heard my question. 10 Q. Is that what you would have done with this patient, 11 send them to the CDU? 12 MS. REINKER: Objection. The standard 13 is not what he would have done, but he can 14 answer the question just knowing the whole 15 picture at the time. 16 A. Given the picture at the time when the patient came 17 in with a syncopal episode, weakness and either 18 chest pressure or chest pain with stable vital 19 signs and no pain at the time of arrival, according 20 to the emergency physician, then an admission to 21 the CDU to rule out for myocardial infarction is 22 indicated and that's what occurred. 23 Q. Well, we don't have stable vitals. We have a drop 24 in blood pressure, correct? 25 MS. REINKER: Objection. We're talking 0063 1 about one blood pressure at one point in 2 time. 3 Q. Is that what you would have done with this patient, 4 is just turfed them? 5 A. If the patient had persistent, unstable vital 6 signs, then they would have stayed unstable. This 7 patient had one isolated low blood pressure and the 8 other blood presssures were okay. 9 Q. All right. So notwithstanding the fact that we 10 have three hours of chest pressure, you would have 11 sent this patient to the CDU? 12 A. This is a patient that needed to be ruled out for 13 myocardial infarction which was exactly what they 14 did. 15 Q. Now -- so you would have done the same thing, is 16 what you're saying? 17 MS. REINKER: Objection. 18 A. Where this patient physically went for her rule-out 19 depended on what availability was there at the 20 time. She needed to be in a monitored bed, which I 21 presume she was, and have serial enzymes, which she 22 had, serial EKGs, which she had and that is all 23 standard of care. 24 Q. Okay. And that's what you would have done with 25 this patient? 0064 1 A. Based on her presentation at 11 o'clock and 2 continuing notes, what they did met with the 3 standard of care. 4 Q. All right. Would you have done the same thing, 5 that's the question? I'm not asking whether it 6 comports with acceptable standards of care. I'm 7 asking you whether you would have handled the case 8 the same way? 9 MS. REINKER: Objection. That's not 10 relevant, but you can answer it. 11 A. Yeah. Based on what they saw at 11 o'clock, I 12 would have done the same thing at 11 o'clock. 13 Q. Based on what they had as information at the time 14 of the transfer at 2:25 in the morning, would you 15 have handled the case the same way? 16 A. She would have needed to have been observed to be 17 ruled out, yes. 18 Q. So you would have sent her to a CDU? 19 A. If that's what was available, yes. 20 Q. You would have sent her to a CDU and never even 21 having taken a peek in to look at her, correct? 22 MS. REINKER: Objection. At 2:15? 23 Q. You would have sent her to a CDU and never visited 24 her again? 25 A. I would have visited her again if she had a 0065 1 complaint. 2 Q. How about a complaint like a complaint of back 3 pain, would that have gotten you in there? 4 A. If she had become unstable or if there had been 5 something that the patient had described as being a 6 problem, then that's something that in the course 7 of her workup, once a myocardial infarction was 8 ruled out, could be looked at. 9 Q. In other words, you wouldn't have -- if you had 10 transferred Frances Broncaccio to the CDU at 2:25 11 in the morning and at some time between 3 and 3:30 12 had been told that she was complaining of back 13 pain, having it at the time of transfer, had 14 continuing chest pressure for three hours, you 15 would have done the same thing as Dr. Haluska which 16 is not to even come in and see the patient, 17 correct? 18 MS. REINKER: I'm going to continue to 19 object to these questions as to what he 20 would have done. That's not the standard 21 and that's not admissible at trial. 22 MR. HIRSHMAN: Sure, it is. 23 MS. REINKER: No, it's not. What he 24 would have done in this situation is not 25 relevant. It tests what a reasonable 0066 1 physician would do, but -- he can keep 2 answering them, but I'm going to keep 3 objecting to this whole type of question. 4 Q. You would have done the same thing as Dr. Haluska, 5 approve a heating pad? 6 A. Let me pull up the notes. 7 MS. REINKER: What are you looking for? 8 THE WITNESS: I'm looking for the CDU 9 note. 10 MS. REINKER: Are you looking for the 11 nurse's note? 12 THE WITNESS: Uh-huh. 13 A. The nursing note says, Daughter at nurse's station 14 requesting heating pad. M.D. informed. Patient 15 may have a heating pad. 16 If the daughter had requested from me that 17 the patient have a heating pad, then I would have 18 given the patient a heating pad. 19 Q. That's all you would have done? You wouldn't have 20 taken that as something worth investigating 21 further? Back pain in a patient who presents 22 initially with syncope, a history of hypertension, 23 three hours' worth of chest pressure, you would 24 have simply, on being told that she now has back 25 pain, have prescribed a heating pad as Dr. Halusca 0067 1 did, correct? 2 A. This is a patient in whom a -- she came in with 3 syncope and chest pressure, who a myocardial 4 infarction was in the process of being ruled out 5 and had not, as yet, been ruled out; who at four 6 hours after presentation complaining of back pain, 7 requesting a heating pad and that was the request 8 to the physician, then I would have given the 9 patient a heating pad and continued the observation 10 in ruling out a myocardial infarction. 11 Q. Would you have bothered to see the patient under 12 those circumstances? 13 A. If the -- if there appeared -- patients who are in 14 the observation unit are on carts that are not 15 comfortable and it's not uncommon for patients in 16 the CDU to be uncomfortable and have back pain, to 17 be honest. 18 Q. The back pain would have been of no concern to you? 19 Are you telling me that this back pain would be of 20 no concern to you, yes or no? 21 MS. REINKER: A single complaint of 22 back pain? 23 A. A single complaint of back pain on an isolated 24 event is not something that mandates a complete 25 workup. 0068 1 Q. I'm not asking for a complete workup, I'm asking 2 you whether it would have induced you to see the 3 patient and examine the patient? 4 A. It depends on the context in which it occurs and in 5 the context that it occurs here, it says that 6 before and after that the patient had been 7 comfortable. 8 Q. Of course, you haven't seen the deposition 9 testimony of Toni Broncaccio (sic), have you? 10 A. No, I haven't. 11 Q. I want you to assume that she did not become 12 comfortable, but she continued to complain of back 13 pain. What would you have done under those 14 circumstances? 15 MS. REINKER: Objection. Nor has he 16 seen the contradictory testimony of Donna 17 Broncaccio. 18 Q. What would you have done under that assumption, 19 Doctor? 20 A. So you're asking me to assume something? 21 Q. I'm asking to you assume that the back pain was not 22 relieved with a heating bad and that you were 23 advised of that fact. 24 MS. REINKER: Objection. 25 Q. Would you have done something more for this 0069 1 patient? 2 A. Assuming -- okay. You're asking me to assume. Let 3 me think this one through. 4 Q. There aren't very many assumption there, Doc. 5 MS. REINKER: Well, you're asking him 6 to assume facts that did not occur. I'm 7 going to object on that basis. There will 8 be no such testimony. You're asking him -- 9 I'm just going to object because there are a 10 number of assumptions there that won't be 11 facts. You're asking him to assume there is 12 continued back pain and Dr. Haluska was 13 aware of continued back and the complaint 14 was made to the nurses of continued back 15 pain. You're asking him to assume a number 16 of things which are not facts in this case. 17 Q. Can you answer the question? 18 MS. REINKER: Why don't you read the 19 question back, see what the question is. 20 MR. HIRSHMAN: And please repeat the 21 question in the transcript. 22 (The following question was read: I'm 23 asking to you assume that the back pain was 24 not relieved with a heating bad and that you 25 were advised of that fact. Would you have 0070 1 done something more for this patient?) 2 A. The patient had continuing back pain and if the 3 patient wasn't relieved by what she had requested, 4 then something else should have been done. 5 Q. At the very least, you would have taken a walk over 6 to the CDU if you were in Dr. Haluska's shoes, 7 wouldn't you have? 8 MS. REINKER: Objection again. Now 9 with the assumptions you're assuming 10 continuing back pain? 11 MR. HIRSHMAN: Do you want me to repeat 12 the same assumptions every time I make a new 13 question here? This is ridiculous. 14 MS. REINKER: He did not incorporate 15 one additional that Dr. Haluska was aware of 16 the fact that the back pain was relieved by 17 the heating pad and all that. 18 MR. HIRSHMAN: You know, Susan -- 19 MS. REINKER: There's no evidence to 20 that in this case, Toby. 21 MR. HIRSHMAN: There is, Susan. There 22 will be plenty of evidence at trial. 23 Now, would you repeat that last 24 question? 25 (The following question was read: At 0071 1 the very least, you would have taken a walk 2 over to the CDU if you were in Dr. Haluska's 3 shoes, wouldn't you have?) 4 MS. REINKER: And again, I'm going to 5 ask you to clarify that question. 6 MR. HIRSHMAN: I don't think it needs 7 clarification. 8 Q. Do you, Doctor? 9 MS. REINKER: Yes, it does. 10 Q. Do you understand my question? 11 MS. REINKER: In Dr. Haluska's shoes at 12 what point in time? 13 Q. Are you perplexed? 14 A. I'm afraid I have so many assumption, I'm 15 perplexed. 16 Q. There aren't very many assumptions here, Doctor. 17 I'll try to make it simple for you. If you had 18 transferred Frances Broncaccio to the CDU at 2:25 19 in the morning and at some time around 3 or 3:30 20 you would have been told that there is now a 21 complaint of back pain which was not relieved by a 22 heating pad -- 23 MS. REINKER: So now we're after 3:30? 24 We're up to 4:30 or something? 25 Q. -- you wouldn't have sat around and done nothing, 0072 1 you would have seen the patient, wouldn't you have? 2 MS. REINKER: Objection. 3 Q. At the very least, you would have seen the patient? 4 MS. REINKER: Objection. 5 A. In the record here, there's no record of what was 6 happening in the -- 7 Q. I'm asking you a question. I'm not asking you to 8 be an advocate. Just tell me what you would have 9 done in response to my question. 10 MS. REINKER: At what point in time, 11 Toby? Are you now at some time after 3:30? 12 MR. HIRSHMAN: Susan, what's wrong with 13 you? Why can't you just let me ask a 14 question here? 15 MS. REINKER: Because your questions 16 aren't based on any facts in evidence and I 17 don't know what you're talking about here. 18 MR. HIRSHMAN: You don't know what I'm 19 talking about? 20 Q. You can't answer the question, is that what we are 21 left with here? You can't answer the question I 22 just asked? 23 A. I said your questions have so many presumptions and 24 suppositions that it gets confusing. 25 Q. Fine, fine. I appreciate that. 0073 1 That would be a reasonable thing to do, 2 wouldn't it, to go see the patient if you were 3 informed of the fact that this patient was in the 4 CDU with back pain that wasn't relieved by a 5 heating pad? 6 A. If the patient had a new complaint and it was 7 unrelieved by an intervention and the complaint was 8 ongoing, then -- 9 MS. REINKER: If you were advised of 10 it. 11 A. -- and if you were advised of it and if there was 12 nothing else more pressing precluding you from 13 doing it, then it would be appropriate to go do 14 that. 15 Q. We can agree that back pain under the circumstances 16 just described, if not relieved by a heating pad, 17 has to elevate aortic dissection in an emergency 18 physician's differential diagnosis? 19 A. Back pain is a very common complaint. 20 Q. Okay. 21 A. And it's seen many times, including in aortic 22 dissection. 23 Q. All right. How many of your 25 patients described 24 their pain as ripping and tearing? 25 A. I can't recall. 0074 1 Q. You would agree that only a minority of aortic 2 dissection patients describe their pain as ripping 3 and tearing? 4 A. The patients who have nontraumatic aortic 5 dissection, most of them have very severe pain that 6 is either ripping or tearing or severe in nature. 7 Q. So you dispute my statement that it's only a 8 minority of patients with aortic dissection who 9 describe their pain as ripping or tearing? 10 A. In my experience in patients with nontraumatic 11 dissection, the majority of patients I've seen have 12 significant pain that's either ripping or tearing 13 or excruciating in nature. 14 Q. When you say majority, how many is that, 50 15 percent, 60 percent, 70 percent? 16 A. I can't give you an exact number. 17 Q. Would you agree with the statement that the pain 18 associated with aortic dissection can be mild to 19 moderate in intensity? 20 A. The classic description of aortic dissection pain 21 is one that's severe pain. It's one of the most 22 severe pains around. 23 MR. HIRSHMAN: Doctor, listen to my 24 question. Read it back, if you would. 25 (The following question was read: 0075 1 Would you agree with the statement that the 2 pain associated with aortic dissection can 3 be mild to moderate in intensity?) 4 A. Pain that's mild or moderate in intensity would 5 make you think of other things other than 6 dissection. 7 Q. I'm not asking you what your diagnosis would be or 8 what your differential would be, I'm asking you 9 whether or not pain that's mild to moderate in 10 intensity is consistent with an aortic dissection. 11 A. Pain with aortic dissection is usually more severe. 12 And then if you had pain that was not severe, it 13 would put aortic dissection much lower on your 14 differential diagnosis. 15 Q. I'm not asking about your differential diagnosis. 16 I'm asking you whether a patient can have a 17 dissection with pain that is mild to moderate, 18 ever? Does that happen? 19 MS. REINKER: His experience? 20 A. In my experience? 21 Q. In your experience. 22 A. I've not seen it in my experience. 23 Q. Have you read about it in the literature? 24 A. In the literature it describes the pain as being 25 severe. 0076 1 Q. Have you read about -- you've seen no literature 2 that indicates that the pain associated with 3 dissection can be mild to moderate? 4 A. I haven't read the entire literature. 5 Q. Okay. But you've never seen that description? 6 A. I have not personally, no. 7 Q. Okay. Would you agree that severe pain, when it 8 exists with dissection, is often associated with 9 the initial complaint? 10 A. I'm sorry, could you repeat that, please? 11 Q. Would you agree with me that the most severe pain 12 associated with dissection is often the pain 13 associated with the initial complaint? 14 A. The pain of dissection is most severe when there's 15 actually a dissection going on. That can occur 16 initially or at any time. 17 Q. The pain associated with dissection has been known 18 to be blocked by neurologically impaired sensorium 19 in some patients, has it not? 20 A. I'm sorry, I don't know what you're getting at. 21 Q. You've never read about patients who presented with 22 dissection who failed to describe an intense pain 23 because they had also sustained an impaired 24 sensorium? 25 A. In what way? 0077 1 Q. Well, in this case we have a patient who presented 2 with syncope at the time of her initial complaints, 3 did we not? 4 A. Correct. 5 Q. Okay. Do you have an opinion as to whether there 6 was an impaired sensorium associated with that 7 syncope or is that, by definition, impaired 8 sensorium? 9 A. Syncope implies a transient change in mental 10 status. 11 Q. All right. So you're aware of no literature that 12 describes patients with dissection who have their 13 sensations of pain blocked by impaired sensorium? 14 A. I'm not aware of that literature. 15 Q. All right. Are you aware of literature that 16 describes up to 20 percent of patients with aortic 17 dissection as having no initial complaints of pain? 18 A. I'm not aware of that literature. 19 Q. All right. Are you aware of any collections of 20 cases of aortic dissection where as many as 55 21 percent of the patients were without pain? Have 22 you seen that described anywhere in the literature? 23 A. Not that I can recall. 24 Q. Have you seen any discussions in the literature 25 which describe how the quality of pain may be 0078 1 variously described in association with aortic 2 dissection as sharp, as pressure, as pleuritic or 3 as burning? 4 A. I'm not sure what paper you're referring to. 5 Q. You've never seen that kind of a description in the 6 literature? 7 A. Not that I remember. 8 Q. Okay. You would agree that a competent physician 9 can't rule out aortic dissection simply because the 10 pain is not sharp, ripping or tearing? 11 A. Pain that's not sharp, ripping or tearing makes an 12 aortic dissection less likely. 13 Q. But it doesn't rule it out, does it? 14 A. Does it rule it out absolutely? 15 Q. Correct. 16 A. No. 17 Q. All right. Have you ever diagnosed a case of 18 aortic dissection in the absence of severe, tearing 19 or ripping chest pain? 20 A. Not in a patient who hadn't been injured. 21 Q. What do you mean by "injured"? 22 A. Involved in a major trauma. 23 Q. In other words, an accident with an injury to the 24 dissection as a result of the trauma? 25 A. Correct. 0079 1 Q. Okay. Of the 25 cases that you described, how many 2 of those were traumatic cases or were those all? 3 A. I can say roughly half. 4 Q. Half of those 25 were traumatic, the other half, 5 what would you describe those as? Is that 6 idiopathic? 7 A. Nontraumatic, I think, is easiest. 8 Q. Nontraumatic. So those 12 to 13 patients all had 9 ripping, tearing, severe chest pain? 10 A. Correct. 11 Q. All right. What's your understanding as to what 12 happened to the chest pain of Frances Broncaccio 13 after she was transferred to the CDU? Do you know 14 whether it continued or whether it stopped? 15 A. May I look at the record? 16 Q. Certainly. 17 A. I'll put the nurse's notes together here. At 2:25 18 there is the note of chest pain and then there 19 doesn't appear to be a mention of chest pain again 20 later, according to the nurse's notes, until noon, 21 I believe. 22 Q. So what do you conclude from that, that somehow the 23 transfer from the emergency room to the CDU was 24 curative of Frances's chest pain? 25 A. There's no record that I can find of her having 0080 1 pain between those two times, and so if she was not 2 complaining of it, you can't assume that she had 3 pain. 4 Q. So your conclusion as it relates to this case is 5 that as of the time of the transfer to the CDU, her 6 chest pressure disappeared? 7 A. There are multiple nurse's notes and none of them 8 mention that she had chest pain. 9 Q. So you're comfortable concluding that the chest 10 pain disappeared at the time of the transfer to the 11 CDU? 12 A. That's what the record indicates. 13 Q. All right. And what is it that you see in the 14 record in terms of treatment that allowed that 15 chest pain to disappear? Do you see anything in 16 the record in that regard? 17 A. The -- I believe -- where is the medication record? 18 Oh, here it is. According to the nurse's records, 19 she received Tylenol and Mylanta. 20 Q. When did she receive the Tylenol? 21 A. At 3 a.m. and the Mylanta at 12:30 a.m. 22 Q. Now, we know that Mylanta given at 12:30 did not 23 relieve the chest pain that was still documented as 24 late as 2:25, correct? 25 A. The nursing note at 2:25 said that she had chest 0081 1 pain. 2 Q. And the nursing notes from the ER document three 3 hours worth of chest pressure just prior to 4 transfer, correct? 5 A. That was at the same time. 6 Q. Right. So we know that the Mylanta did not relieve 7 the chest pain or the chest pressure, correct? 8 MS. REINKER: Objection. 9 A. There's no record of any chest pain between 2:25 10 and 8 o'clock or does that mean -- I'm sorry. 11 Q. I thought you told me that the Mylanta was given at 12 12 something. 13 A. I'm sorry, not 8 o'clock. 14 Q. When was Mylanta given? 15 A. I'm sorry, there was no record of chest pain 16 between 2:30 in the morning and noon. 17 Q. Doctor, when was the Mylanta given? 18 A. 12:30 in the morning. 19 Q. Okay. Mylanta was given at 12:30 and we have 20 documented chest pain at least up to 2:25, do we 21 not? 22 A. Actually, the Mylanta is documented as being at 23 12:30. I'm not sure whether that's 12:30 midnight 24 or 12:30 noon. 25 Q. In either case, let's assume for the moment that it 0082 1 was given at 12:30 on the morning of the 8th. 2 A. Okay. 3 Q. It didn't relieve the chest pain and chest 4 discomfort, did it? 5 A. There are -- 6 MS. REINKER: You're talking about the 7 dose in the emergency room? I think there 8 was a change. I want you to look at it. 9 Q. Doctor, did it? 10 A. That's the CDU record. Hold on. Let me just check 11 one more thing, please. I mean, the record says 12 that she had pain up until 2:30, but no pain 13 between 2:30 and noon. 14 Q. So if we assume that the Mylanta was given at 15 12:30, she continued to have pain for at least two 16 more hours, didn't she? 17 A. She has a documented pain at 2:30, correct. 18 Q. We can conclude the Mylanta didn't resolve her 19 pain, can't we? 20 MS. REINKER: Let him look at the 21 record. 22 MR. HIRSHMAN: He has it right in front 23 of him. 24 Q. Do you remember the question? 25 A. Yeah. If you assume that she got Mylanta at 0083 1 12:30 a.m., she still had pain two hours later, but 2 then again, there's no record after that until 3 noon. 4 Q. You would agree with me that if she was given 5 Mylanta at 12:30, it did not resolve her pain, 6 correct? 7 A. The pain did not go away until after 2:30, correct. 8 Q. Now, have you even -- are you willing to entertain 9 the possibility, Doctor, that there's no chest pain 10 recorded after the transfer to the CDU simply 11 because the nurses failed to record it? Have you 12 entertained that as a possibility? That's the 13 question. 14 A. Have I entertained it? No. 15 Q. All right. 16 MS. REINKER: Toby, do you know how 17 much longer you're going to be? 18 MR. HIRSHMAN: Quite a bit. 19 MS. REINKER: He's got to leave. He's 20 got to get home at a certain point in time. 21 Q. What are the causes of chest pain in the presence 22 of a dissection? What is the mechanism of pain or 23 what are the various mechanisms of pain? 24 A. Pain is thought -- in aortic dissection, is thought 25 to be related to blood entering into the wall of 0084 1 the aorta and the separation of the layers of the 2 aorta. 3 Q. Do you agree with the statement that when the 4 diagnosis of aortic dissection is suspected, it can 5 be made in virtually every case? 6 A. If you have the right diagnostic tools, yes. 7 Q. Okay. In other words, we have CT scans available 8 in most institutions these days which are, if I'm 9 not mistaken, very effective in diagnosing aortic 10 dissections; fair statement? 11 A. CT scan is fairly accurate for diagnosing 12 dissection. 13 Q. Would you agree with me that CT scans are 99 14 percent accurate? 15 A. Offhand, I don't know the number. 16 Q. All right. Obviously in order for a test like a 17 CT scan to be helpful in diagnosing an aortic 18 dissection, you have to have an emergency room 19 physician or a CDU physician who is vigilant in 20 considering this potentially lethal entity; fair 21 statement? 22 A. One of the most -- aortic dissections are a very 23 difficult diagnosis. Most of them are not 24 diagnosed ahead of time, but to make the diagnosis, 25 it needs to be considered. 0085 1 Q. In order for the diagnosis to be made, there has to 2 be an index of suspicion entertained by the 3 emergency room physician, correct? 4 A. There has to be an index of suspicion and there 5 have to be findings that make you do the 6 appropriate workup. There has to be an appropriate 7 clinical picture, both history and physical. 8 Q. But you can have the appropriate clinical picture 9 and still not make the appropriate diagnosis if you 10 don't have the index of suspicions as a physician, 11 correct? 12 A. I'm sorry, repeat the question, please. 13 Q. Well, in other words, if you've got a patient that 14 presents with certain signs and symptoms and you've 15 got various mechanical devices that can make the 16 diagnosis of aortic dissection, you're not going to 17 get the diagnosis unless the emergency physician 18 has a sufficient index of suspicion to invoke one 19 of those tests, such as a CT scan, correct? 20 A. The treating physician needs to look at the 21 clinical picture in order to -- of the appropriate 22 tests to make any diagnosis. 23 Q. Would you agree with me that where there is a 24 potential for a diagnosis of aortic dissection, 25 that a physician doesn't have the luxury of ruling 0086 1 out each component of his differential diagnosis 2 with 100 percent certainty before moving on to the 3 next component of his differential diagnosis? 4 A. Can you repeat the first part, please? 5 MR. HIRSHMAN: I'll have it read back. 6 (The following question was read: 7 Would you agree with me that where there is 8 a potential for a diagnosis of aortic 9 dissection, that a physician doesn't have 10 the luxury of ruling out each component of 11 his differential diagnosis with 100 percent 12 certainty before moving on to the next 13 component of his differential diagnosis?) 14 A. I think in cases where you have it -- I think in 15 patients where you have a clinical picture, you 16 have to do the workup that's appropriate for that 17 clinical picture and do the appropriate testing. 18 Q. Do you ever work up more than one prong of a 19 differential diagnosis at the same time? 20 A. Yes. 21 Q. All right. And that's something you do when you 22 can't afford to wait for your initial diagnosis to 23 be confirmed as having been ruled out? Let's put 24 it this way. Nothing prevented the doctors at 25 Kaiser on the 7th and 8th of December from moving 0087 1 down two different avenues at the same time? 2 A. There should be nothing to prevent looking for 3 multiple diagnoses. 4 Q. And that's done by you when you're confronted with 5 multiple prongs of a differential diagnosis where 6 more than one of them has a sufficient likelihood 7 of death to make that a feasible thing to do? 8 A. That's done when there's a sufficient likelihood 9 that that is the diagnosis that needs to be 10 pursued. 11 Q. All right. In other words, two things have to 12 occur. Number one, it has to be of sufficient 13 lethality; number two, it has to be of sufficient 14 likelihood for you to do that, there has to be 15 sufficient clinical concern? 16 A. Correct. 17 Q. So it's certainly not a novel concept for an 18 emergency room physician to attempt to rule out two 19 diagnoses at the same time? 20 A. Correct. 21 Q. Or three diagnoses at the same time? 22 A. Correct. 23 Q. All right. And you do that on a daily basis, I 24 would imagine? 25 A. Correct. 0088 1 (Brief interruption.) 2 MS. REINKER: Do you need to answer 3 that page? 4 THE WITNESS: No. 5 Q. So it's certainly not necessary for you as an 6 emergency room physician with a differential 7 diagnosis which includes an MI to wait for all 8 enzyme tests to return before pursuing another 9 diagnosis, as well; fair statement? 10 A. It is not necessary to wait for one diagnosis 11 before looking for another. 12 Q. So, in the circumstance that I just described where 13 the primary diagnosis is an MI and you're doing 14 enzyme tests in order to rule in or rule out an MI, 15 an emergency room physician, in accordance with 16 acceptable standards of care, is not precluded from 17 pursuing other diagnoses, as well? 18 MS. REINKER: Based on the -- 19 Q. Fair statement? 20 MS. REINKER: Based on the criteria -- 21 are you going back to the criteria that you 22 stated before? 23 MR. HIRSHMAN: It's a general question, 24 Susan. 25 MS. REINKER: Well, there's indications 0089 1 in all that -- okay. 2 A. If you were looking for one diagnosis, it does not 3 preclude you from looking for another, that's 4 correct. 5 Q. Okay. Your job as an emergency room physician is 6 to make diagnoses not only in the textbook cases, 7 but in those cases that don't present in classic 8 textbook fashion; fair statement? 9 A. That's correct. 10 Q. In fact, that's why you develop a differential 11 diagnosis. If a case presented classically, you 12 wouldn't need a differential diagnosis because it 13 would be obvious; fair statement? 14 A. Actually, no. Sometimes people with classic 15 symptoms don't have what they're supposed to have. 16 That's why you take care of each patient 17 individually. 18 Q. And that's why you set forth a differential 19 diagnosis from which you work so that you can 20 consider the various possibilities and work towards 21 ruling them in or ruling them out? 22 A. Correct. 23 Q. All right. Did you see a differential diagnosis 24 noted anywhere in these records? 25 A. I saw -- I saw two diagnoses listed on the 0090 1 discharge summary. 2 Q. And what were they? 3 A. Chest pain, rule out MI, brady/hypo -- I'm not sure 4 if that's hypotensive or hypotension. I can't read 5 it. Rule out vagal event. 6 Q. Do you see any differential diagnosis that includes 7 aortic dissection? 8 A. I do not find that in the record. Dr. Haluska's 9 testimony, I believe, said that. 10 Q. That he did? 11 A. Consider it, correct. 12 Q. Okay. It was something that should have been 13 considered, correct? 14 (Brief interruption.) 15 Q. Do you remember the question before the spill? Do 16 you recall what we were talking about? Aortic 17 dissection -- 18 A. The -- 19 MS. REINKER: Let him give you a 20 question. 21 Q. The aortic dissection was certainly a diagnosis 22 that should have been considered by Dr. Haluska as 23 part of his differential diagnosis, correct? 24 A. And according to his deposition, he said he did 25 consider it. 0091 1 Q. That's not what I'm asking. I'm just asking 2 whether it should have been and you agree that it 3 should have been? 4 A. It should be part of the differential diagnosis. 5 Q. Okay. And the truth is, you don't see it written 6 anywhere in the records as part of his differential 7 diagnosis, do you? 8 A. It's not unusual for emergency room physicians not 9 to record their entire differential diagnosis. 10 Q. Can you answer my question? Do you see it anywhere 11 in the records? 12 MS. REINKER: It's already been 13 answered. 14 A. He said in his deposition that he considered it. 15 Q. Do you see it anywhere in the contemporaneously 16 prepared records? 17 A. In the -- which contemporaneously prepared records? 18 Q. Do you see any records that were prepared at the 19 time of the care and treatment of Frances 20 Broncaccio that part of the differential was aortic 21 dissection? 22 A. You're talking about the ED chart? 23 Q. I'm talking about the chart. 24 A. There is no record of it in the chart. 25 Q. Do you see any maneuvers or tests that suggest that 0092 1 Dr. Halusca or Dr. Ryder took action to 2 affirmatively rule out aortic dissection? 3 A. They did a chest x-ray and they checked the 4 patient's pulses. 5 Q. They did a chest x-ray and it was essentially 6 normal, correct? 7 A. That was the official interpretation that I was 8 given. 9 Q. Can you tell me what percentage of patients 10 presenting with aortic dissection have normal chest 11 x-rays? 12 A. From what I've read, 80 to 90 percent of the 13 patients who have a chest x-ray with aortic 14 dissection have an abnormality on their chest 15 x-ray. 16 Q. So as many as one-fifth of patients with aortic 17 dissection have normal chest x-rays? 18 A. 10 to 20 percent have no abnormalities on their 19 chest x-ray suggestive of dissection. 20 Q. And there is literature that suggests the number 21 can be as high as 50 percent? 22 A. Not that I'm aware of. 23 Q. All right. Now, in addition to the chest x-ray, 24 you indicate that pulses were done. Do you see any 25 other evidence besides the chest x-ray and pulses 0093 1 which establishes that affirmative action was taken 2 to rule out an aortic dissection? 3 A. A history, a physical exam and an assessment were 4 done. 5 Q. Well, what is the history -- what in the history 6 allows one to rule out an aortic dissection? 7 A. The history of pain. That is not typical of an 8 aortic dissection. 9 Q. Does the finding of syncope tend to establish or 10 rule out an aortic dissection? 11 A. A syncope is seen rarely, only in approximately 5 12 percent of patients with dissection. So that by 13 itself would not rule for dissection. It would 14 make you think of other things. 15 Q. Does a history of headache tend to establish or 16 argue against aortic dissection? 17 A. There are a huge number of things that can cause 18 headache. 19 Q. All right. Now, pulses were taken which, in your 20 estimation, establish findings which help to rule 21 out a dissection; is that correct? 22 A. Patients with aortic dissection are supposed to 23 have pulse delays. 24 Q. Sometimes they do, sometimes they don't? 25 A. The classic finding in dissection is that there is 0094 1 a problem with the vessel which impedes the flow of 2 blood to where you would examine for pulses. And 3 in the absence of that delay, in the absence of an 4 abnormality on that exam, you would not anticipate 5 anything wrong with the vessel in between. 6 Q. What percentage of patients with aortic dissection 7 have evidence of it upon examination of pulses? 8 A. I don't know that exact number. 9 Q. Do you have an approximate number? 10 A. No. 11 Q. Okay. And when there is a finding consistent with 12 aortic dissection from an observation of pulses, 13 it's an unequal -- an inequality of pulses 14 bilaterally. Is that what one finds? 15 A. Inequity or delay in pulses. 16 Q. Are you aware of whether or not any assessment was 17 done of the pulses to determine whether or not 18 there was an inequality or delay? 19 A. There are nurse's notes documenting pulses in CDU 20 on several occasions. 21 Q. And you interpret those documentations of pulses -- 22 and I believe the times of those are 2:25 and 23 8 o'clock in the morning; is that correct? 24 A. I'd have to double-check. 25 Q. Double-check, if you would. 0095 1 A. The documentation of 8 o'clock and 2:25. 2 Q. Any others that you found? 3 A. Dr. Haluska's exam indicates normal pulses. 4 Q. That was the exam that was done on the 22nd of 5 December, 1997; is that correct? 6 A. There's a handwritten note. 7 Q. Dated what? 8 A. Frances Broncaccio, 12 -- under signature, it says 9 12-22-97. 10 Q. All right. Do you see any other place in this 11 chart where there is a documentation of pulses? 12 A. I thought there was one from the nurse's note in 13 the ED, but I can't find it now. 14 Q. All right. 15 A. I don't see it now. 16 Q. Let's deal with the 8 o'clock one and the 2:25 one 17 on the morning of the 8th. You interpret both of 18 those documentations of pulses to establish not 19 only the presence of pulses, but their bilateral 20 equality and the absence of a delay, correct? 21 A. I interpret the way it's charted that the nurse who 22 made the assessment at the time thought they were 23 normal. 24 Q. And you have concluded that the nurse thought they 25 were normal not only inasmuch as they were present, 0096 1 but also concluded that they were normal in the 2 sense that they were equal bilaterally, correct? 3 A. I would assume that if the nurse found otherwise, 4 that she would -- he or she would have recorded 5 otherwise and/or notified somebody. 6 Q. And you would have expected a nurse, when taking 7 those pulses, not just to note their presence, but 8 also their equality? 9 A. Correct. 10 Q. You expect that because that's what a competent 11 nurse is supposed to do? 12 A. Correct. 13 Q. Especially in a situation where the differential 14 diagnosis includes dissecting aneurysm, correct? 15 MS. REINKER: Objection. 16 Q. Is that a yes? 17 A. I expect that the predicates were given or an 18 honest effort to do -- and they try to do an honest 19 job at all times and to the best of their ability, 20 whether they're looking for something specific or 21 not. 22 Q. All right. What would your differential diagnosis 23 have been for Mrs. Broncaccio as of the time of her 24 transfer from the emergency room to the CDU? 25 MS. REINKER: Objection. 0097 1 A. At 2:30 a.m. on 12-8-97? 2 Q. Correct. 3 A. It would have been, Rule out MI, chest pain, 4 syncope -- actually syncope would have been number 5 one, chest pain, rule out MI and possible GI event. 6 Q. Well, chest pain is not a differential diagnosis, 7 it's a description of a complaint, isn't it? 8 A. Correct. 9 Q. And syncope isn't a differential diagnosis, it's a 10 description of an event, correct? 11 A. You asked what my diagnoses would have been at that 12 time. Those are my diagnoses. 13 Q. So your differential diagnosis is, in fact, acute 14 MI and possible GI event? 15 A. That's untrue. My differential would have syncope, 16 which is a diagnosis, acute chest pain, rule out 17 MI, which is a diagnosis, and possible GI event 18 which, you're right, is not a diagnosis. 19 Q. You would not have been thinking about unstable 20 angina as part of your differential diagnosis? 21 A. That's implied with rule out MI -- acute chest 22 pain, rule out MI. 23 Q. You would not have had dissecting aneurysm as part 24 of your differential? 25 A. Based on your initial presentation that would have 0098 1 been part of my differential diagnosis, but I would 2 not have charted it in the chart. It would have 3 been very unlikely, based on her presentation at 4 that time. 5 Q. So it would have been part of your thinking, but it 6 would not have been documented by you? 7 A. Correct. 8 Q. How about pulmonary embolism? 9 A. Same as with dissection. It would have been 10 something I would have considered, but would not 11 have documented on the chart. 12 Q. All right. Doctor, what was the cause of Frances 13 Broncaccio's back pain? 14 A. I don't know. 15 Q. With the benefit of hindsight, what was the cause 16 of Frances Broncaccio's back pain? 17 A. At what time? 18 Q. Let's talk about 3 o'clock in the morning. 19 A. I don't know, even with the benefit of hindsight. 20 Q. Okay. What was the cause of her chest pain? 21 A. Again, I don't know. 22 Q. You have testified, if I'm not mistaken, that 23 aortic dissection invariably presents with chest 24 pain, correct? 25 A. I said that chest pain is one of the symptoms that 0099 1 people have with aortic dissection, correct. 2 Q. Invariably, correct? 3 A. Patients with chest pain have -- patients with 4 aortic dissection do have chest pain that's usually 5 severe, correct. 6 Q. All right. And we know that Frances Broncaccio was 7 suffering a dissecting aneurysm at that point in 8 time, correct? 9 A. At what point in time? 10 Q. During the course of her emergency room visit and 11 CDU visit at Kaiser on the 7th and 8th of December, 12 1997? 13 A. We know that Fransis Broncaccio died of an aortic 14 dissection as ruled by the coroner. Looking over 15 her record, it's unclear exactly when her 16 dissection occurred. 17 Q. So you have no opinion as to whether she presented 18 to the emergency room with an ongoing dissection? 19 A. It is possible that she had an ongoing dissection, 20 but more likely, based on what happened that her 21 dissection was the fatal dissection that occurred 22 in the early afternoon of the 8th of December. 23 Q. So it's your opinion that the events of the evening 24 of the 7th and the early morning hours of the 8th 25 are unrelated to the dissection that occurred at 0100 1 1300 hours or shortly thereafter on the 8th? 2 A. It's my opinion that you can't definitively say 3 that that was all related to her eventual fatal 4 dissection. 5 Q. So it's your opinion -- you're unable to state with 6 a reasonable probability even, which means more 7 likely than not, that there was a relationship 8 between Mrs. Broncaccio's death and the symptoms 9 she had when she presented to the emergency room? 10 A. Looking at it in hindsight, you can say that any 11 number of symptoms that she had could be attributed 12 to a dissection. However, looking at it at the 13 time when she presented, there was not a lot of 14 evidence for dissection at that time. 15 Q. That's what I'm asking you to do. We're here 16 talking about -- I'm going to ask you to put on 17 your retrospectroscope, okay? As we sit here in 18 March of 2001, do you have an opinion as to what 19 caused Frances Broncaccio's back pain at 3 o'clock 20 in the morning on the 8th of December? 21 MS. REINKER: Objection. That's been 22 asked and answered. Would you like her to 23 read back his answer? 24 MR. HIRSHMAN: No, we didn't ask and 25 answer it, Susan. 0101 1 MS. REINKER: Yes, we did. It's the 2 exact -- 3 MR. HIRSHMAN: Now we do, but we're 4 going to be looking in retrospect rather 5 than -- 6 MS. REINKER: He said even with 7 hindsight he doesn't know. 8 Q. Is that your answer, even with hindsight -- you 9 have no opinion even with hindsight to say whether 10 the back pain was related to the dissection? 11 MS. REINKER: At 3 a.m.? The 3 a.m. 12 back pain? 13 A. Even retrospectively, I can't tell you for sure 14 that the dissection caused the back pain. 15 Q. Okay. Now that we've established that you can't 16 say so for sure, I'm going to ask you if you can 17 say so to a reasonable medical probability, more 18 likely than not. Do you have an opinion to a 19 reasonable medical probability, with the benefit of 20 hindsight, as to whether or not her back pain at 3 21 in the morning was related to her dissection? 22 A. At 3 o'clock in the morning, at this point I don't 23 think you can say for sure with a reasonable degree 24 of certainty whether or not it was related. 25 Q. Okay. So you can't even say that it's more likely 0102 1 than not that her back pain was related to her 2 dissection? 3 MS. REINKER: That's what he just said. 4 Q. Correct? 5 A. We have -- correct. 6 Q. All right. And the same is true for the chest pain 7 that she presented with in the emergency room, 8 correct? 9 A. Correct. 10 Q. What, in your opinion, was the cause of the chest 11 pain in the emergency room if not the dissection? 12 A. I said I can't tell what caused it. 13 Q. You can't tell? 14 A. No. 15 Q. I want you to assume that there was back pain that 16 was complained of at 3 o'clock in the morning in 17 the CDU. Should that back pain have been reported 18 to Dr. Halusca by a nurse? 19 A. The records indicate that it was. 20 Q. All right. And if Dr. Haluska says that it was 21 never reported to him, your review of the records 22 discloses that he's simply not stating the facts 23 accurately -- 24 MS. REINKER: Objection. 25 Q. -- fair statement? 0103 1 MS. REINKER: Objection. I don't 2 believe that's what his testimony was. 3 Q. Correct? 4 A. My review of the record says that -- may I read it? 5 Q. Uh-huh. 6 A. Daughter at nurse's station requesting heating pad. 7 M.D. informed. 8 Q. All right. So if Dr. Halusca says that he wasn't 9 told about back pain, your review of the records 10 clearly shows that he's wrong in that regard? 11 A. The record indicates that the nurse informed the 12 doctor. Whether the record or other possible 13 testimony which really happened is not for me to 14 decide. 15 Q. The records clearly reflect that Dr. Halusca was 16 informed? 17 A. There's a chart note that the M.D. was informed. 18 Q. And you don't dispute that chart note, do you? 19 A. I have no reason to dispute the chart or the 20 testimony. 21 Q. Well, the chart and the testimony are in dispute. 22 Which do you believe, Dr. Haluska's testimony or 23 the chart? 24 MS. REINKER: Wait. No, no. Objection 25 here. Let's look at exactly what the chart 0104 1 says. If you want to show him Haluska's 2 testimony on that -- he's not the decider of 3 factual dispute here. 4 A. Yeah, I don't have Dr. Haluska's testimony in front 5 of me. If you'd like to put them side by side, I 6 can do that. 7 Q. This much is clear, the chart makes it clear to you 8 that there was information regarding back pain 9 reported by a nurse to Dr. Haluska? 10 MS. REINKER: Well -- 11 A. There are two -- 12 MS. REINKER: Before you answer that, 13 maybe you should look at the entry. The 14 nurse advised the doctor for a heating pad. 15 You may want to look at what the chart says. 16 A. Right. The note says at 0300 patient complaining 17 of back pain, 0310 medication with Tylenol 3 tabs. 18 At 0340, Daughter at nurse's station requesting 19 heating pad. M.D. informed. Same given to 20 patient. 21 Q. So does that chart reflect to you that Dr. Haluska 22 was informed about back pain? 23 A. The chart says that the patient complained of back 24 pain and the chart says that the daughter was 25 requesting a heating pad and the M.D. was informed 0105 1 of that. 2 Q. What do you conclude -- do you conclude that 3 Dr. Haluska was told about back pain or that he 4 wasn't told about back pain? 5 MS. REINKER: Or if he can't tell, he 6 can't tell. 7 A. Yeah, I can't tell. 8 Q. Okay. You can't tell. Needless to say that a 9 patient under these circumstances in a CDU who 10 complains of back pain should have that information 11 in that complaint reported to the physician; fair 12 statement? 13 MS. REINKER: Objection. I think we've 14 been around this before, but -- 15 A. The patient had a complaint and that should be 16 assessed. 17 Q. By the physician? 18 A. By the nurse initially and, if necessary, by the 19 physician. 20 MS. REINKER: Can we -- I don't want to 21 interrupt you if you were about to -- off 22 the record. 23 (A discussion was had off the record.) 24 Q. Is it your contention that the nurse did not have 25 an obligation to report a complaint of back pain to 0106 1 Dr. Halusca? Is that your contention? 2 A. No. My contention is that if the patient has a 3 complaint, it should be assessed by the staff; 4 first by the nurse and, if necessary, by the 5 physician. 6 Q. Well, that's not my question. I've asked you 7 whether or not a nurse under these circumstances 8 had an obligation to report a complaint of back 9 pain to Dr. Halusca? 10 A. It's the nurse's job to assess the patient for any 11 and all complaints and to provide the patient with 12 the care that the patient needs either from nursing 13 personnel or from the physician. 14 Q. So what you're telling me is that the nurse didn't 15 have an obligation to report this back pain to 16 Dr. Halusca? She could have dealt with it on her 17 own? 18 A. If that's what her assessment was. 19 Q. In other words, the CDU nurse, in your opinion, was 20 sufficiently equipped to deal with a complaint of 21 back pain in a patient with previous complaints of 22 chest pressure and make a determination as to 23 whether this was a significant complaint or not on 24 her own without going to Dr. Halusca? 25 A. Nursing care requires nurses to make assessment of 0107 1 patients based on what their presentation and their 2 symptoms are at the current time and to call for 3 physician help when they need it and when it's 4 appropriate for the patient's care. 5 Q. So in your opinion, a complaint of back pain didn't 6 need to be reported to Dr. Halusca, correct, didn't 7 necessarily need to be reported to Dr. Halusca? 8 A. The nurses at the time made that assessment about 9 what should and should not be reported. 10 Q. If you assume that they did not report the back 11 pain to Dr. Halusca, you have no problem with that? 12 A. None of us were there at the time to assess the 13 patient. 14 Q. I'm not asking you what happened. I'm asking you 15 what your opinion would be if you were told that 16 the nurses didn't report the back pain to 17 Dr. Halusca. Would you have a problem with that? 18 A. Assuming that the nurses are practicing standard 19 nursing care, nurses take care of many problems by 20 themselves. Some they report and some they don't. 21 Q. So you would have no problem with that? 22 A. If the nurse felt that they were providing 23 appropriate care and that was appropriate care, no. 24 Q. That's the issue. Was it appropriate care or 25 wasn't it, that's the issue and that's what I'm 0108 1 asking you. You're the expert here. If the nurses 2 didn't report a complaint of back pain to 3 Dr. Halusca, is that appropriate care, in your 4 opinion? 5 A. If the patient was complaining of pain that was not 6 severe enough that they were concerned, then it 7 need not be reported. If it's something that 8 nurses can take care of, then the nurses take care 9 of that. 10 MR. HIRSHMAN: Do you want to take a 11 break? 12 MS. REINKER: How long do you want to 13 go? I'm going to stop this at a certain 14 point. I have a big commitment I have to do 15 tonight at home so I'm not going -- you can 16 go off the record. 17 (A discussion was had off the record.) 18 Q. Doctor, in your report you indicate that the back 19 pain resolved with the application of a heating 20 pad, I believe, do you not? 21 A. I believe what I wrote in the one, two, three, 22 fourth paragraph of my second page is that 23 dissection pain is not the type of pain that would 24 be relieved by a cushion or a heating pad which is 25 what Mrs. Broncaccio requested at 0330, and did not 0109 1 again complain of back pain until after noon. 2 Q. So you've concluded that Mrs. Broncaccio's back 3 pain was relieved by a heating pad? 4 A. My opinion is that if the pain had been severe, 5 that she would have continually complained of it, 6 which she did not. She only complained of it at 7 3:30 and then at approximately noon. Again, if 8 you're allowing me to assume, I assume that if 9 she's not complaining about it, that it was not 10 happening. 11 Q. You have not read Toni Broncaccio's (sic) 12 deposition? 13 A. Once again, the answer to that question is no. 14 Q. Does it matter to you what she might say on the 15 subject? 16 A. I was asked to give an opinion based on the medical 17 record. And the medical record would have -- 18 should have documented that there was pain, if 19 there was pain. It was documented in there one 20 time and that was it. 21 Q. So what Toni Bianchi has to say on the subject is 22 of no concern to you? 23 A. I can only speculate because I have no idea whether 24 it's relevant or not because I can only make a 25 judgment based on the material I was given. 0110 1 Q. And you weren't given that deposition? 2 MS. REINKER: He will have them before 3 the trial, the two daughters' depositions, 4 and probably some other depositions, as 5 well, so don't say you're surprised at 6 trial. 7 Q. If you're formulating opinions regarding the facts 8 that apply to this case, and the question of 9 whether or not, based on those facts, the 10 defendants in this case comport with acceptable 11 standards of care, don't you think it would be 12 important for you to have those depositions? 13 A. Usually when cases are looked at, they're looked at 14 with the medical records because -- 15 Q. Go ahead. I don't want to interrupt you. 16 A. -- because that was done, using your term, in a 17 contemporaneous time, and that's the record that I 18 go on when I look at things. 19 Q. All right. So that's all you really need to see, 20 in your opinion, in order to formulate your 21 opinions? 22 A. I'm not saying that's all I need to look at. What 23 I'm saying is that if there are other things that 24 you would like me to look at, I'm happy to look at 25 that, but I can only give you an opinion today 0111 1 based on what I've seen. 2 Q. Well, it's not for me to give you information. 3 It's for Ms. Reinker. 4 What's the significance of an acute 5 diastolic murmur in a patient who presents to an 6 emergency room with complaints of chest pain? 7 A. There are many things that can cause a diastolic 8 murmur in a patient in an emergency department. 9 Q. What about an acute diastolic murmur that appears, 10 to the emergency physician, to arise between two 11 separate and distinct physical examinations which 12 she has performed in the emergency room in a 13 hypertensive patient with chest pain and presents 14 to the emergency room having had a syncopal event 15 associated with headache? 16 A. There are many things that could cause that. 17 Q. One of them is a dissection? 18 A. Dissection is one of them. A ruptured chordae 19 tendineae is another. The fact that you just 20 didn't hear the murmur earlier because the ED was 21 busy or loud or that the patient had one all along, 22 all of those are possibilities, along with some 23 other things. 24 Q. It would certainly push the diagnosis of dissection 25 up on the differential diagnosis, wouldn't it? 0112 1 A. Again, there are so many things that could cause 2 that, I'm not sure how that would change the -- 3 your opinion based on all the other data that's 4 available. 5 Q. I'm going to ask you to -- well, let's do this. I 6 don't want to do that. 7 Unstable angina was part of your 8 differential diagnosis that you would have given in 9 this case, as I understand your testimony? 10 A. Correct. That's with rule out MI. 11 Q. All right. Now, you're familiar with the ACLS 12 standards, correct? 13 A. I'm familiar with them, yes. 14 Q. Okay. And you're familiar with the standards of 15 care for emergency room physicians generally as it 16 relates to chest pain? 17 A. Correct. 18 Q. What treatment is required a patient with 19 unsuspected unstable angina who continues after 20 presentation to have complaints of chest pressure? 21 A. There are no required treatments. 22 Q. Was any nitroglycerin given to this patient I.V.? 23 A. I saw no record of it. 24 Q. Would you have given nitroglycerin to a patient 25 such as this I.V.? 0113 1 A. A patient could have received either sublingual or 2 intravenous nitroglycerin if they felt that that 3 was needed at the time. 4 Q. The fact is that Mrs. Broncaccio, even if you just 5 go by the records, went from 11:30 to 2:25 with 6 persistent chest pain and was given no 7 nitroglycerin I.V., no cardiac drugs and no 8 catheterization; fair statement? 9 A. Let's double-check, please. There's no record of 10 her getting any medication in the emergency 11 department that I can find, and -- 12 Q. Now -- go ahead. 13 If Mrs. Broncaccio had died -- let's say if 14 Mrs. Broncaccio had sustained an MI in the interim 15 without any of these medications or modalities 16 being given, you wouldn't be here defending this 17 case, would you? 18 A. I'm sorry? I guess I don't follow what you're 19 trying to ask. 20 Q. The standard of care required that something be 21 done to deal with this continuing chest pain in a 22 patient where you're considering a diagnosis of 23 unstable angina, correct? 24 A. If they thought that she had pain related -- 25 ongoing chest pain that was cardiac of origin, they 0114 1 could have tried to give her nitroglycerin. 2 Q. Not only could they have, they should have, 3 correct? 4 A. If they thought it was of cardiac origin and the 5 chest pain sounded like cardiac disease, they could 6 have done that. 7 Q. Not only could they have, they should have, 8 correct? 9 A. It's something they could have considered. 10 Q. Doctor, I'm asking you to answer my question, not 11 the question you want to answer. The standard of 12 care required them to give I.V. nitro and some sort 13 of cardiac medication if their consideration was 14 that -- if their concern was that of unstable 15 angina in the face of persistent chest pressure? 16 A. Nitroglycerin is given to people with cardiac chest 17 pain in hopes of reversing their ischemia. 18 Q. Doctor, the standard of care required that it be 19 given I.V., didn't it? 20 A. Actually, no. The standard of care is showing that 21 nitroglycerin doesn't necessarily need to be given 22 I.V. 23 Q. They didn't give it in any fashion whatsoever; is 24 that your understanding? 25 A. There's no record of it. 0115 1 Q. Okay. And that's a departure from acceptable 2 standards of care in a patient who is presenting 3 with chest pain with a potential seriously 4 considered diagnosis of either MI or unstable 5 angina, correct? 6 MS. REINKER: Objection. 7 A. Again, if they thought the patient had chest pain 8 of cardiac origin, they could have given her 9 nitroglycerin. 10 Q. Doctor, I'm not asking you whether they could have. 11 Do you understand my question? I'm asking you 12 whether the standard of care required them to. 13 A. Yeah, I'm not sure I remember what the standards of 14 care were in December of '97. 15 Q. Okay. What other drugs besides nitroglycerin can 16 be given to patients who are presenting with chest 17 pain that is suspected of being unstable angina in 18 its origin? 19 A. What other drugs can be given? There are a lot of 20 medications. 21 Q. Are ACE inhibitors, beta-blockers or calcium 22 channel blockers appropriate? 23 MS. REINKER: Do you want to divide 24 that up in three different questions? 25 Q. Are any of those appropriate? 0116 1 MS. REINKER: If they think it's 2 cardiac pain, is that what your question is? 3 MR. HIRSHMAN: Correct. 4 A. If you think it's cardiac pain, some of those 5 medications are appropriate. 6 Q. Not only appropriate, they're required, correct? 7 A. They're appropriate and can be helpful. 8 Q. And should have been given, correct? 9 MS. REINKER: Objection. 10 Q. Correct, Doctor? 11 A. I'm sorry, will you repeat the question? 12 Q. In the face of a patient with persistent chest pain 13 who is thought to be suffering from unstable 14 angina, cardiac medications such as ACE inhibitors, 15 calcium channel blockers or beta-blockers should 16 have been given? 17 A. No, I disagree with that. 18 Q. None of them should have been given? 19 MS. REINKER: You're talking to this 20 patient now or are you talking about a 21 patient who you think has anginal pain? 22 A. Do you want to break the question up? 23 Q. Let's talk about ACE inhibitors. Are they 24 considered in the acute setting? 25 A. Correct. They're not necessarily needed. 0117 1 Q. How about calcium channel blockers? 2 A. Again, not necessarily needed. 3 Q. How about beta-blockers? 4 A. Beta-blockers have been shown to be helpful and 5 it's my understanding that this patient was on 6 beta-blockers. 7 Q. When were these last given? 8 A. That, I don't know. 9 Q. Such a patient with persistent chest pain who is 10 thought to have unstable angina is a patient that 11 needs to be sent to the cath lab; fair statement? 12 A. Not always. 13 Q. If this were your patient and you were considering 14 a diagnosis of unstable angina with persistent 15 chest pain, are you telling me you wouldn't have 16 sent this patient for an emergency cath? 17 A. Patients with persistent chest pain and EKG 18 abnormalities are patients that go to the cath lab. 19 Q. So this patient didn't have EKG abnormalities, 20 correct? 21 A. Correct. 22 Q. So unstable angina really wasn't a serious 23 consideration after all, was it? 24 A. No, that's not correct. 25 Q. Well, you can't have it both ways either. It's an 0118 1 important consideration, it seems to me, or it 2 isn't. Either you're truly concerned about this 3 patient having an ischemic condition or you aren't, 4 and if you're not, what are the other elements of 5 the differential diagnosis? 6 A. This is a patient who presented with chest pain 7 that has many possibilities on her differential 8 diagnosis, one of which is unstable angina. If the 9 question is did she need to get to the cath lab, 10 she meets no criteria to go to the cath lab at that 11 point in time. 12 Q. And that's because the EKGs aren't showing any 13 evidence of ischemia, correct? 14 A. And also, again, the record said that her pain went 15 away when she first came, so her pain, at least for 16 part of it, was coming and going. 17 Q. That's not unusual for unstable angina, is it? 18 A. No. 19 MS. REINKER: On that note, it's 7:30. 20 Do you want to conclude? Are there one or 21 two things you want to ask? 22 MR. HIRSHMAN: No, we're going to have 23 to resume. It's going to have to be 24 sometime soon. Let's see where we are here. 25 Q. Doctor, in your report -- I don't have much more 0119 1 here at least for today. I just want to get this 2 out of the way and we'll have to resume at some 3 other point, but let's try to get at least a couple 4 small points in your report out of the way. 5 In your report which you have in front of 6 you -- 7 A. Right. 8 Q. -- Paragraph 2 you indicate, Having reviewed this 9 information, it is my opinion that the care 10 provided for Mrs. Broncaccio by the defendants on 11 December 7th and 8th, 1997 at the Kaiser Parma 12 ED/CDU met community standards. What defendants 13 are you referring to? 14 A. I'm sorry? 15 Q. What people and entities are you referring to by 16 the phraseology, by the defendants? 17 A. I was told this case was Frances Broncaccio versus 18 Kaiser Foundation of Ohio, et al. 19 Q. Okay. So you're referring to all the folks who 20 were treating Mrs. Broncaccio in the emergency room 21 and in the CDU during that period of the 7th and 22 8th? 23 A. Correct. 24 MR. HIRSHMAN: Let's do this. I'm not 25 going to get done today. Do you have a 0120 1 calendar with you, Doctor? 2 MS. REINKER: For what purpose? 3 MR. HIRSHMAN: For rescheduling the 4 deposition. 5 MS. REINKER: Well, we're not going to 6 do that now. I've got to look at my 7 calendar. 8 MR. HIRSHMAN: Well, you've got a 9 calendar here, too, Susan. It's not like we 10 have an abundance of time to do this. 11 MS. REINKER: Well, we'll figure 12 something out. 13 MR. HIRSHMAN: I'll tell you this. I'm 14 reserving my right to further depose this 15 physician and to the extent I don't get that 16 opportunity, we will make appropriate 17 motions in limine to prevent him from 18 testifying at trial. 19 MS. REINKER: To prevent him from 20 testifying? You've had almost four hours to 21 depose him, three and a half. 22 MR. HIRSHMAN: And I've gotten how many 23 straight answer in four hours? 24 MS. REINKER: I'm sure you didn't like 25 the answers, but you got straight answers. 0121 1 MR. HIRSHMAN: No, I didn't get 2 straight answers. 3 MS. REINKER: Well, I didn't get 4 straight answers from your experts, so here 5 we go. 6 MR. HIRSHMAN: We'll set this up and, 7 if not, you can expect a motion. We won't 8 let him testify, if we have anything to say 9 about it. 10 MS. REINKER: You've had four hours to 11 go over his testimony. 12 MR. HIRSHMAN: We'll do everything we 13 can to reconvene. 14 MS. REINKER: We can go off the record. 15 (Deposition adjourned at 7:38 p.m.) 16 (Signature not waived.) 17 - - - - 18 19 20 21 22 23 24 25 0122 1 I have read the forgoing transcript from Page 1 2 through 121 and note the following corrections: 3 PAGE LINE REQUESTED CHANGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ___________________________________ NICHOLAS J. JOURILES, M.D. 19 20 Subscribed and sworn to before me on this _____ day of _________________, 2001. 21 22 ____________________________, Notary Public 23 My commission expires: ____________________________ 24 25 0123 1 C E R T I F I C A T E 2 3 State of Ohio, ) ) SS: 4 County of Cuyahoga. ) 5 I, Judi Sadler, Registered Professional Reporter 6 and Notary Public in and for the State of Ohio, duly commissioned and qualified do hereby certify that the 7 within named witness, NICHOLAS J. JOURILES, M.D., was by me first duly sworn to testify the truth, the whole 8 truth, and nothing but the truth in the cause aforesaid; that the testimony then given was by me 9 reduced to stenotypy in the presence of said witness, subsequently transcribed into typewriting, and that the 10 forgoing is a true and correct transcript of the testimony so given as aforesaid. 11 I do further certify that this deposition was 12 taken at the time and place as specified in the foregoing caption, and that I am not a relative, 13 counsel or attorney of the parties or otherwise interested in the outcome of this action. 14 IN WITNESS WHEREOF, I have hereunto set my hand 15 and affixed my seal of office at Cleveland, Ohio, this 12th day of March, 2001. 16 17 _____________________________________________ Judi Sadler, Registered Professional Reporter 18 and Notary Public in and for the State of Ohio. My commission expires September 14, 2004. 19 20 21 22 23 24 25