1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 TONI L. BIANCHI, Executrix of the ESTATE OF FRANCES R. 4 BRONCACCIO, deceased, 5 Plaintiffs, 6 -vs- CASE NO. 370551 7 KAISER FOUNDATION HEALTH PLAN OF OHIO, et al., 8 Defendants. 9 - - - - 10 Telephone deposition of JOSEPH KAHN, M.D., 11 taken as if upon cross-examination before Pamela 12 S. Greenfield, a Registered Diplomate Reporter, 13 Certified Realtime Reporter and Notary Public 14 within and for the State of Ohio, at the offices 15 of Bonezzi, Switzer, Murphy & Polito, 1400 Leader 16 Building, Cleveland, Ohio, at 6:00 p.m. on 17 Monday, March 5, 2001, pursuant to notice and/or 18 stipulations of counsel, on behalf of the 19 Defendants in this cause. 20 - - - - 21 MEHLER & HAGESTROM Court Reporters 22 CLEVELAND AKRON 23 1750 Midland Building 1015 Key Building Cleveland, Ohio 44115 Akron, Ohio 44308 24 216.621.4984 330.535.7300 FAX 621.0050 FAX 535.0050 25 800.822.0650 800.562.7100 2 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. (via telephone) 3 Mark Ruf, Esq. (via telephone) Linton & Hirshman 4 700 West St. Clair Avenue Hoyt Block, Suite 300 5 Cleveland, Ohio 44113-1230 (216) 771-5800, 6 On behalf of the Plaintiffs; 7 Susan M. Reinker, Esq. 8 Bonezzi, Switzer, Murphy & Polito 1400 Leader Building 9 Cleveland, Ohio 44114 (216) 875-2767, 10 On behalf of the Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 JOSEPH KAHN, M.D., of lawful age, called 2 by the Defendants for the purpose of 3 cross-examination, as provided by the Rules of 4 Civil Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as 6 follows: 7 CROSS-EXAMINATION OF JOSEPH KAHN, M.D. 8 BY MS. REINKER: 9 Q. Dr. Kahn, am I saying that correctly? 10 A. Yes. 11 Q. Would you state your full name please for the 12 record. 13 A. Yes. Joel, J-O-E-L, Kahn, K-A-H-N. 14 Q. And what is your middle name? 15 A. Kaufman. K-A-U-F-M-A-N. 16 Q. Are you related to the store? 17 A. I don't know the store, no. 18 Q. Have you ever gone by any other names? 19 A. No. 20 Q. Your date of birth? 21 A. May 19, 1959. 22 Q. Your Social Security number, I gather, is 23 374-62-3581; is that correct? 24 A. Yes. 25 Q. Is that the number you would like us to use for 4 1 your reimbursement check? 2 A. No. I'll send you a statement. There's a 3 corporate number. 4 Q. Who is your current employer? Is it still the 5 Michigan Heart Group? 6 A. Yes. 7 Q. And the address is still in Troy, Michigan? 8 A. Yes. 9 Q. 2221, is that Livernois, Livernois? How do you 10 say that? 11 A. Let's not bother saying it because as of 11 12 months ago, I'll give you the current address. 13 We moved to a new building. 4600 Investment 14 Drive, Suite 200, Troy, Michigan, 48098. 15 Q. That's still the same group or did you merge with 16 another group or somehow change your structure? 17 A. None of the above. Just same group, new 18 facility. 19 Q. This is a cardiology group, I gather? 20 A. Yes. 21 Q. How many physicians? 22 A. Five other than myself. 23 Q. So it's six all together? 24 A. Right. 25 Q. And you are all cardiologists? 5 1 A. Right. 2 Q. Does anyone in the group practice general 3 internal medicine or primary care medicine? 4 A. All of us as part of a cardiology practice some 5 general internal medicine. You know, I can give 6 examples. Nobody is listed on a panel as a 7 primary care provider. 8 - - - - 9 (Thereupon, Kahn Exhibit 1, 10 eight-page Kahn CV, was marked for purposes of 11 identification.) 12 - - - - 13 Q. Now, I have before me a document which we have 14 had marked as Exhibit 1 which is your abbreviated 15 curriculum vitae. 16 Do you have that document with you? 17 A. Actually, I have my current CV as was printed off 18 last night. I think what you're looking at 19 probably is, you know, I know more than a year 20 old and there are just some additions as far as 21 publications and the one address change we 22 indicated. 23 Q. Would you provide that to Mr. Ruf and he can 24 bring me a copy when he comes back? 25 A. Certainly. 6 1 Q. Now, I gather that the document you're looking 2 at, is that still called an abbreviated 3 curriculum vitae? 4 A. No. 5 Q. What's the difference between your abbreviated CV 6 and the full size CV? 7 A. I don't keep two anymore. 8 Years ago, I had one that had every 9 presentation, every lecture, every abstract and 10 it was getting excessively long and no longer 11 relevant, in my opinion, and therefore, I created 12 that abbreviated one and I've chosen only to 13 continue the one that excluded all of those 14 things I mentioned. So I only have one now. I 15 don't keep track of all the lectures and courses 16 and other things that I used to in my early days. 17 Q. Looking at that document, it appears that you 18 completed your professional training in really 19 1990 with your advanced angioplasty fellowship; 20 is that correct? 21 A. Right. 22 Q. Were you practicing as a private practitioner 23 before 1990 or did you begin your practice in 24 1990? 25 A. The second. Began in 1990. 7 1 Q. Did you immediately join the Michigan Heart 2 Group? 3 A. No. There was almost three years, from 1990 to 4 1993, that I was in Ann Arbor, Michigan in 5 private practice as part of the Ann Arbor 6 Cardiology Consultants and was a clinical 7 assistant professor at the University of Michigan 8 in Ann Arbor. 9 Q. Why did you leave that group? 10 A. This is my hometown and I've always been looking 11 at the right opportunity at William Beaumont 12 Hospital where I practice. 13 Q. How far away is Troy from Ann Arbor? I'm not 14 familiar with the geography. 15 A. 45 to 50 minute drive. 16 Q. Further north or west or which direction? 17 A. Ann Arbor is west and south of the Detroit area 18 and its suburbs. 19 Q. So Troy is a suburb of Detroit? 20 A. Correct. 21 Q. I see you have training as an invasive 22 cardiologist? 23 A. Right. 24 Q. What percent of your practice involves invasive 25 studies? 8 1 A. Timewise, about one-third. 2 Q. Are you aware of any studies that have been done 3 comparing autopsy findings of degrees of stenosis 4 of cardiac vessels and stenosis of those vessels 5 in life? 6 A. Yes. I've read some of that literature in the 7 past. 8 Q. And what is the comparison, if you know? 9 A. I have not reviewed that topic specifically for 10 today. It's been a number of months or years 11 since I've read some of that literature. I 12 recall there being a trend towards overestimation 13 based on the autopsy percentages compared to what 14 would have been reported or what was reported on 15 angiographic studies; although there was quite a 16 bit of scatter. 17 Q. By scatter, what do you mean? 18 A. There was no consistent relationship where you 19 could simply say take 10 percent off what you see 20 at autopsy or take 20 percent off. 21 It was reported that the correlation wasn't 22 very strong between the two measurement methods. 23 Q. Are you familiar with any studies that went the 24 other way, that said autopsy findings might be 25 underestimating the degree of stenosis? 9 1 A. At this time, I don't recall that. 2 Q. In general, is it reliable to at least say if an 3 autopsy finds stenosis, there's probably stenosis 4 there? 5 A. I'll agree with that. 6 Q. And if an autopsy calls it severe stenosis, would 7 you agree that there probably is severe stenosis? 8 A. You know, since we haven't defined what a severe 9 stenosis is and there isn't a single definition, 10 yeah, I'm comfortable with what you just said as 11 a trend. 12 Q. You said 33 percent of your time is spent in 13 invasive procedures. 14 What percent of your practice is spent in, 15 just in general cardiology? 16 A. I'm excluding any legal work. The other is the 17 two-thirds, about a third of which is an office 18 based practice at the address I'm sitting in now 19 and about a third is in hospital time, 20 consultation, patient care, teaching, research in 21 the hospital setting. 22 Q. Well, before you gave me those two-thirds, the 23 next question I was going to ask you is what 24 percent of your time is spent seeing patients 25 with general internal medicine or primary care 10 1 problems? 2 A. I see them as is reflected in their 3 cardiovascular problems and that means I see them 4 for hypertension. I see them for cholesterol 5 abnormalities and they don't have to have more 6 advanced or established cardiovascular diseases 7 such as previous heart attack and such. 8 I'd say -- I'm totally estimating -- that ten 9 percent of the people I see in my office are for 10 those kind of problems, hypertension and 11 hyperlipidemia that completely fall in overlap 12 with what the general internist would also see. 13 Q. But you don't have on the side a primary care 14 practice of patients who do not have any 15 cardiology problem? 16 A. Defining hypertension and cholesterol 17 abnormalities as cardiology problems, that would 18 be true. 19 Q. Before you did your training in cardiology, did 20 you ever practice for any period of time as a 21 general internist? 22 A. No. 23 Q. So basically, a third of your time is spent in 24 invasive cardiology procedures, a third of your 25 time in seeing cardiology patients in hospital 11 1 settings and the other third is following 2 patients in the office? 3 A. Right. 4 Q. What is your experience working in an emergency 5 room setting? 6 A. Two components. One that's barely worth 7 mentioning. I moonlit as a resident and briefly 8 as a resident in some urgent care centers and 9 walk-in centers in Dallas and Ann Arbor many 10 years ago; but in the last eight years at William 11 Beaumont Hospital in Royal Oak, Michigan, I've 12 been a consultant to our emergency room, our 13 chest pain center and our short-stay unit, which 14 we call what I believe is similar to the clinical 15 decision unit as it's called in this case and 16 there's of the about 50 cardiologists on staff at 17 my hospital, about 10 or 12 of us that are 18 officially designated consultants to the 19 emergency room. 20 Q. Do you have, do you actually go in and sit in the 21 emergency room and work a shift a month or 22 something like that? 23 A. Not as you describe it. I'm on a schedule that 24 rotates as being the designated cardiologist for 25 the emergency room on a given day and, again in 12 1 the course of, there's about 10 or 12 of us, it's 2 officially a full, you know, often three days a 3 month where nurse practitioners will call us down 4 to evaluate patients frequently and commonly 5 either side by side with the emergency room 6 physician and also frequently and commonly before 7 an emergency room physician; so, you know, it 8 depends on what the schedule and the patient flow 9 is that day; but it's a scheduled shift of being 10 available on very short notice. 11 Q. Now, you said you're scheduled to be on call to 12 the emergency room at Beaumont Hospital. 13 How many times, how many days a week or days 14 a month do you do that? 15 A. Well, that's one, that function brings me, is one 16 of the functions that brings me to the emergency 17 room and, as I said, that would be about three 18 24-hour time periods a month as an average. 19 Q. And the assignment -- 20 A. That schedule is one and one function I will be 21 in the emergency room and that, you know, on 22 average amounts to about three full 24-hour 23 periods a month. The other reason I'm there with 24 frequency is my patients are there or the 25 emergency room doctors and my relationship with 13 1 them brings me there or a referring internist or 2 family doctor sends a patient and calls me ahead 3 of time to meet their patient there. 4 I'm on average seeing patients in the 5 emergency room three or four days a week. 6 Q. And that would be you'd come in to see a certain 7 designated patient? 8 A. Right. 9 Q. You would not be standing there and they're 10 wheeling somebody in with a bleeding finger and 11 you're going to take a look at that patient and 12 decide what's wrong with them? 13 A. Certainly not. 14 Q. And what you're saying is you're available to do 15 consultations to people who think there's a 16 cardiac problem that needs to be evaluated in the 17 emergency room. Is that fair enough? 18 A. Right. And typically it's the triage nurse or 19 nurse practitioner in the case of our emergency 20 room, right. 21 Q. When you're on duty those 24 hours, those shifts, 22 was it three a month where you work 24 hours, are 23 you actually in the hospital 24 hours sleeping in 24 a call room somewhere? 25 A. No. The typical pattern has been that, you know, 14 1 it's about 12 hours in the hospital and then the 2 responsibility is to be available to be in the 3 hospital in about 20 minutes if called at 4 nighttime. 5 Q. So if it was during the nighttime hours, you 6 would come in and see the patient if the ER 7 physician felt that was necessary? 8 A. Or the triage nurse or the nurse practitioner. 9 It can emanate from any of the above. 10 Q. Does the triage nurse or the nurse practitioner 11 have authority to call you in without first 12 referring the case to the ER physician? 13 A. Yes. That's how our chest pain emergency center 14 works for rapid mobilization of cardiology 15 services. 16 Q. Now, it's my understanding -- and I think I 17 talked to Dr. Clancy about this the other 18 night -- at Beaumont they have both a chest pain 19 unit and a short stay unit for patients to be 20 followed who are not thought ready to go home but 21 don't have a cardiac or chest problem. Is that 22 correct? I'm sorry. If there was an answer, we 23 didn't get it? 24 MR. RUF: He's thinking. 25 A. My attention, I apologize, tails off to the end 15 1 portion of your question. Why don't you repeat 2 that wording. I caught the beginning. 3 Q. Well, I don't know if I could repeat the wording 4 and maybe I'm confused but the other night, 5 Dr. Clancy and I, I thought we talked about 6 Beaumont having two units, one called a chest 7 unit and one called a short stay unit where 8 patients could be referred from the emergency 9 room if they needed continued follow-up. Am I 10 correct or am I thinking about another witness in 11 another hospital? 12 A. There are two units, but they don't function 13 exactly as you described. The chest pain unit is 14 in the emergency center but a special designated 15 geography that has some additional cardiology 16 support staff and diagnostic capability. It's 17 not where people stay for any prolonged period of 18 time. It functions like the rest of the 19 emergency room where an attempt is made to 20 evaluate and make some disposition. 21 The short stay unit is a site where people 22 can be observed and undergo further testing for 23 periods of commonly 24 hours, sometimes slightly 24 beyond; so it functions differently than the 25 chest pain emergency center. 16 1 Q. So the short stay unit at Beaumont would be more 2 similar to the CDU situation in the case we're 3 going to be talking about? 4 A. Correct. 5 Q. Now, when you're assigned as the consult for 6 either of those units, did you say you're a 7 consult for both of them, the short stay and the 8 chest pain unit? 9 A. That's true. I've been called already before 10 they've gone to the short stay unit. I've been 11 involved before the short stay unit. I mean that 12 would be after some degree of evaluation and 13 disposition. 14 Q. So I gather a patient could go from the emergency 15 room, the general ER area, to the chest pain area 16 and then from there to the short stay unit? 17 A. It could happen. It shouldn't happen because if 18 they have chest pain, they should go to the chest 19 pain, you know, geographic area of the emergency 20 room; but on occasion they could go through all 21 three areas. 22 Q. But say if they came in the emergency room and 23 went right to the chest pain area and they could 24 be evaluated there and then sent to the short 25 stay unit overnight? 17 1 A. Absolutely. 2 Q. Now, is Beaumont a teaching hospital? 3 A. Yes. You know, we, let me make the point. It's 4 not affiliated directly with a medical school. 5 It has residency programs and fellowship 6 programs. 7 Q. Is Beaumont the primary hospital where you 8 practice? 9 A. I am on staff at three hospitals of which I go to 10 all of them with frequency. 11 Q. Which three hospitals? 12 A. There's two Beaumont hospitals. We've so far 13 been discussing the large one which is in Royal 14 Oak, Michigan and it's called Beaumont Royal Oak 15 and then there is a sister smaller community 16 hospital called Beaumont Troy not too far from 17 where I'm sitting and the third one is in a 18 community about ten miles north of where I'm 19 sitting called Rochester, Michigan and the 20 hospital is Crittenton, C-R-I-T-T-E-N-T-O-N. 21 It's a smaller community hospital. 22 I spend more of my time at Royal Oak Beaumont 23 than the other two because it has the angioplasty 24 program. 25 Q. What percent of your time would you say you're at 18 1 Beaumont Royal Oak? 2 A. Of that, you know, total hospital time, probably 3 60 to 70 percent with, you know, the remainder 4 split between the other two. 5 Q. Split equally between the other two? 6 A. I think that's fair. 7 Q. Now, I was asking you about when you were talking 8 before about the chest pain unit and the short 9 stay unit, we were talking about Beaumont and 10 Royal Oak, correct? 11 A. Right. 12 Q. Do they have those same two divisions at Beaumont 13 Troy? 14 A. They have a short stay unit. The emergency room 15 doesn't have a dedicated portion that is termed 16 the chest pain center. It's a somewhat smaller 17 emergency room. 18 Q. So if a patient came into the Beaumont Troy 19 emergency room and had chest pain and was being 20 evaluated, that patient might go directly after 21 an ER evaluation to the short stay unit? 22 A. That's true. 23 Q. How about Crittenton. Do they have -- 24 A. Call contact with the attending cardiologist. 25 Q. I'm sorry, doctor, we missed that. I must have 19 1 cut you off. 2 A. I said typically with at least call contact with 3 an attending cardiologist. There is a 4 traditional on call cardiology schedule at that 5 facility. 6 Q. That's at Beaumont Troy? 7 A. Right. 8 Q. How about at Crittenton? What's their procedure? 9 A. There is not a dedicated chest pain emergency 10 center separate from the general emergency 11 center. There are patients admitted as 12 observation or short stay, but they're scattered 13 throughout the hospital. There's not, again, a 14 single geography or an area attached to the 15 emergency room and there is an on-call cardiology 16 schedule, like most hospitals. 17 Q. So your experience as just being a regular old ER 18 doc, that experience was confined to your 19 moonlighting during your residency and your 20 fellowship? 21 A. If you distinguish that from being a cardiology 22 emergency room doctor, that's true, right. 23 Q. And when was the last time you worked in an 24 emergency room as just a primary care emergency 25 room physician? 20 1 A. That would have been through the '80s but not 2 since then. 3 Q. Do you work in hospital emergency rooms back then 4 or just urgent care centers? 5 A. Both. These were early on free-standing urgent 6 care centers and toward the end in Dallas, you 7 know, portions of the emergency room center at 8 major hospitals. 9 Q. How often did you do that? Was it something you 10 did three days every week or how often? 11 A. A long time ago. I don't remember. You know, I 12 was a full-time fellow. It wasn't every night 13 but some, you know, small number of nights a 14 month. 15 Q. Do you recall back when you were doing that if 16 any of the places where you worked had a chest 17 pain unit or a CDU type facility? 18 A. I don't recall them having that. It wasn't, I 19 don't think a concept that was really developed 20 in the '80s. 21 Q. Where are you now? Are you in your office? 22 A. Yes. 23 Q. Is there anyone there with you except for 24 Mr. Ruf? 25 A. No. 21 1 Q. I gather that you have never performed cardiac 2 surgery? 3 A. It's fair to say I did rotations as a medical 4 student quite a number of years ago but certainly 5 obviously not the primary surgeon. 6 Q. But you do cardiac catheterizations? 7 A. Yes. 8 Q. Do you have your file with you in this case? 9 A. Yes. 10 Q. Do you have your entire file with you? 11 A. Yes. 12 - - - - 13 (Thereupon, Kahn Exhibit 2, 14 three-page 4/4/99 Kahn report, was marked for 15 purposes of identification.) 16 - - - - 17 Q. We have a second document that we've marked as 18 Exhibit 2, which is a letter that you wrote to 19 Mr. Ruf dated April 4th of 1999. Do you have 20 that report with you? 21 A. I have that report. It's obviously not marked 22 Exhibit 2 because it's a copy within my own file. 23 Q. You're free to write Exhibit 2 on it, if you 24 like. 25 Have you written any other letters to Mr. Ruf 22 1 in this case for any reason? 2 A. No. 3 Q. How about to Mr. Hirshman? 4 A. No. 5 Q. I gather there were no prior reports before this 6 one? 7 A. That's true. 8 Q. When you prepared this report in April of 1999, I 9 gather you had no depositions to review? 10 A. That's correct. 11 Q. At the time you reviewed medical records and that 12 was it? 13 If there was an answer, we did not get it. 14 MR. RUF: He's looking. The 15 report actually refers to plaintiffs first 16 set of interrogatories, as well. 17 A. I was just saying, I often think about your 18 questions and there will probably be a pause 19 after many of your questions. We're hearing you 20 fine. 21 Q. Well, on this end, frequently if you answer yes 22 or no quickly, it will be cut off and we won't 23 hear it which is why I may ask you from time to 24 time; but anyway, before preparing your report, 25 what all did you review? List everything, 23 1 please. 2 A. I'm relying on my report that you've called 3 Exhibit 2. Emergency room and hospital records, 4 December 7, December 8, 1997. That's a typo in 5 my report. 6 The autopsy report, December 9, 1997. 7 Various Kaiser medical clinic records from 1985 8 on that were predominantly outpatient records and 9 the results of some testing that was contained in 10 those records and, as Mr. Ruf indicated, the 11 plaintiff's first set of interrogatories. 12 Q. Did you review any medical literature before 13 preparing the report? 14 A. I don't recall. 15 Q. When you say you reviewed the plaintiff's first 16 set of interrogatories, was that the plaintiff's 17 answers to my interrogatories to the plaintiff or 18 their interrogatories to my clients? 19 A. I have them right here and I think it's your 20 answers to plaintiff's interrogatories. You're 21 the one answering. 22 Q. I gather you've reviewed additional materials 23 before today? 24 A. Right. 25 Q. Have you at any point in time reviewed any 24 1 medical literature to prepare for your testimony? 2 A. Yes. I read all the time on aortic dissection 3 and other topics; so, yes, I have. 4 Q. Do you have literature there with you on aortic 5 dissection? 6 A. No. 7 Q. What did you review on aortic dissection? 8 A. My typical, you know, shotgun is I'll look in a 9 few cardiology textbooks, typically Braunwald, 10 B-R-A-U-N-W-A-L-D; Hurst, H-U-R-S-T; Topol, 11 T-O-P-O-L, as examples that are scattered in my 12 office, my home, the hospital library. I like to 13 often look in a couple emergency textbooks. 14 Dr. Rosen's book and Dr. Tintanelli, 15 T-I-N-T-A-N-E-L-L-I, is an approximation of her 16 spelling, and I read both multiple journals I 17 subscribe to as well as spend usually a dedicated 18 hour a week in the library a week in our hospital 19 looking over cardiac surgical and emergency room 20 literature that I don't directly subscribe to as 21 a habit I've developed over the years, so those 22 are habits that go back, you know, over a decade. 23 Q. Are you saying you look at all of this literature 24 to prepare for your testimony in a legal matter 25 or you look at all this literature just, you kind 25 1 of read literature all the time? 2 A. They're both true. I do both. 3 Q. What percent of your time do you spend in legal 4 matters? 5 A. Ten percent of my professional total time is in 6 this kind of matter. 7 Q. When you say this kind, you mean medical 8 malpractice cases against physicians? 9 A. Well, more than half of what I do is medical 10 malpractice cases where I'm defending physicians, 11 hospitals or insurance companies. 12 Q. But you're talking about, when you say legal 13 matters, you're talking about medical malpractice 14 cases, not some other kind of legal matter? 15 A. That's true. 16 Q. Now, did you specifically go and look at all of 17 these books that you mentioned before for this 18 case? 19 A. At some point in time, and I've had this file for 20 more than two years, I did the routine I just 21 described as well as I've read literature that 22 the Cleveland Clinic has written on aortic 23 dissection and their ten-year results and others 24 but that's part of my routine anyways. I'll 25 review it and look it over again, you know, when 26 1 a topic like this comes up. 2 Q. What literature are you referring to from the 3 Cleveland Clinic? Is that from their own 4 publication? 5 A. Well, they publish their results in general 6 cardiothoracic journals. 7 Q. Do you subscribe to the Cleveland Clinic's own 8 quarterly? 9 A. Yeah. I think it comes more than quarterly, 10 though, the Cleveland Clinic Journal. It's white 11 and green on the cover. I think it's every month 12 or every other month, but I do get it. 13 Q. Now, what else have you reviewed to date other 14 than literature? 15 A. Well, I have a stack of many depositions. I can 16 list them for you if you'd like. 17 Q. I would like you to do that. 18 A. Okay. Dr. Gajdowski, G-A-J-D-O-W-S-K-I; 19 Dr. Kaforey, K-A-F-O-R-E-Y; Nurse Tlacil, 20 T-L-A-C-I-L; Nurse Bach, B-A-C-H; Robert Bianchi, 21 Toni Bianchi, Donna Broncaccio, 22 B-R-O-N-C-A-C-C-I-O; Dr. Haluska; Dr. Abernethy; 23 Nurse Wilson; Nurse Doster, D-O-S-T-E-R; and 24 Dr. Ryder, R-Y-D-E-R. 25 I think that is comprehensive because 27 1 everything else is a Kaiser record or the 2 autopsy. 3 Q. Have you reviewed any of the expert reports? 4 A. No. 5 Q. None of them? 6 A. No. There was a point in time I had the chest 7 x-ray and probably a year-and-a-half or so ago I 8 returned it to Mr. Ruf. I didn't take any notes. 9 Q. Do you recall what you saw when you looked at the 10 chest x-ray? 11 A. I recall not disagreeing with the written 12 interpretation and not being struck by anything 13 particularly. 14 Q. Meaning that it appeared normal to you with no 15 evidence of a wide mediastinum? 16 A. Given its, you know, single view, portable 17 nature, that's true. 18 Q. Is there anything else that you intend to review 19 before the trial? 20 A. No. I mean, I'll just simply say I know some 21 other people have given depositions in the last 22 number of weeks. I don't know if Mr. Ruf intends 23 to send them to me; but should he, of course I'll 24 review them. 25 Q. But is there anything else you have asked to 28 1 review or that you feel you need to see before 2 the trial? 3 A. No. 4 Q. How were you first contacted about this case? 5 A. In late 1998 I was sent records on this matter 6 and was asked if I'd be willing to review them 7 and render some opinions, you know, on the 8 questions at hand. 9 At that time I had a loose relationship with 10 a medicolegal clearinghouse in Florida that 11 served as an intermediary and that was how the 12 records came to me. 13 I'm not seeing cases from them at the present 14 time. 15 Q. Was that Ellen Reibach's group? 16 A. Right. 17 Q. When did you first start reviewing cases for 18 Ms. Reibach? 19 A. Early '97. Maybe late '96. 20 Q. When did you start reviewing medical malpractice 21 cases at all? 22 A. 1991. 23 Q. So one year out of your residency, you started 24 reviewing cases, out of your fellowship? 25 A. Out of my advanced fellowship, that's correct. 29 1 Q. Did you review cases while you were still in 2 training? 3 A. No. 4 Q. How did you happen to get started in 1991? 5 A. Senior partner in that Ann Arbor group had been 6 doing it and either lost interest or too much and 7 kept throwing them on my desk. I really didn't 8 know much about the field at the time. 9 Q. What was his or her name? 10 A. Jonathon Fisher. F-I-S-H-E-R. 11 Q. Do you recall how many cases you reviewed in 12 1991? 13 A. I have no idea. 14 Q. Any estimate? 15 A. No. It would be a guess. 16 Q. That's okay. I'd like some idea whether it was 17 one, ten or a hundred? 18 A. It wasn't the latter. It probably was between 19 one and ten. I don't know. Five. 20 Q. Have you continued reviewing cases every year 21 since then? 22 A. Yes. 23 Q. And roughly, has the number increased? 24 A. Yes. 25 Q. How many did you review last year, 2000? 30 1 A. I'll guess of new cases that came to my desk, 30, 2 35 as a ballpark. 3 Q. And how many, has the 30/35 figure been about the 4 average for the past few years? 5 A. It was for the past three or four years; but it 6 has decreased since I have asked to no longer see 7 cases from the Reibach firm. 8 Q. When did you make that decision? 9 A. Just the late part of 2000. 10 Q. Why did you make that decision? 11 A. Difficulty meeting my commitment to attorneys to 12 be present at out of town trials if that came 13 about. 14 Q. If you've been reviewing roughly 30 to 35 cases 15 since approximately 1996, how many did you review 16 between '91 and '95 per year? 17 A. Less than that, certainly, you know, in the range 18 of maybe half of that. 19 Q. Did you review cases for any other service than 20 Ms. Reibach's? 21 A. No. 22 Q. Other than Reibach, do you get cases from other 23 sources? 24 A. Yes. 25 Q. What other sources? 31 1 A. Defense firms throughout Michigan, hospitals 2 throughout Michigan, insurance companies 3 throughout Michigan. Occasionally some defense 4 firms on a national level. 5 Q. I gather, well, of the 30 to 35 cases you 6 reviewed, you were reviewing each year, how many 7 of them came from Reibach? 8 A. At its peak and, you know, these are all ball 9 parks because I don't keep track of this, 10 probably up to half at its peak. 11 Q. Had you ever done any cases before with Mr. Ruf? 12 A. No. 13 Q. Or with Mr. Hirshman? 14 A. I have had other cases with Mr. Hirshman, two or 15 three. 16 Q. Are any of them still pending? 17 A. I don't know. 18 Q. Did Mr. Hirshman get you through Ellen Reibach or 19 through some other source? 20 A. I don't know; but I think I can answer not 21 through Ellen Reibach. 22 Q. The other cases with Mr. Hirshman, did you 23 actually write a report or just review them? 24 A. I don't know. 25 Q. You don't remember? 32 1 A. That's right. 2 Q. Did you give a deposition in any of them? 3 A. I don't think I ever have for a case that came 4 from his firm. 5 Q. Have you come to Cleveland to testify? 6 A. No. 7 Q. Ever for anybody, not just for Mr. Hirshman? 8 A. My answer is still no. 9 Q. Have you had any cases in Ohio other than this 10 one? 11 A. Yes. 12 Q. Roughly how many? 13 A. I'm doing a lot of guessing. Ten, maybe fifteen. 14 Q. I think you said before your cases are roughly 50 15 percent defendant and 50 percent plaintiff? 16 A. At its peak, that was true. Over the course of 17 ten years, it's weighted more towards defense, 18 probably 60/40 if total number of cases is the 19 denominator. 20 Q. Does the percentage differ in the Detroit area? 21 For example, in Detroit do you do a higher 22 percentage of defense cases? 23 A. Of course. 24 Q. How many plaintiffs cases or what percent of the 25 cases in the Detroit area are plaintiffs cases? 33 1 A. A small number. I've probably looked at half a 2 dozen plaintiff cases in the State of Michigan. 3 I've only been asked to look at half a dozen 4 plaintiff cases in the State of Michigan. 5 Q. Have you testified against a physician in the 6 State of Michigan? 7 A. In deposition. Never been required to do it at 8 trial. 9 Q. Do you recall how many times you've done that? 10 A. I recall two. 11 Q. And how about outside of the State of Michigan? 12 What's the percentage outside of Michigan where 13 you testify for plaintiffs? 14 A. Probably 80/20. 15 Q. 80 percent plaintiff, 20 defense? 16 A. Right. 17 Q. Can you think of any defense lawyers who have 18 retained you in the State of Ohio? 19 A. No. 20 Q. Now, you're the one who called Dr. Clancy to get 21 him involved in this case, correct? 22 A. Mr. Ruf has reminded me of that fact. I did not 23 have an independent recollection of that. 24 Q. Why would you do that? Why did you do that? 25 A. Well, again, if I don't have an independent 34 1 recollection, I'm back to guessing. I imagine at 2 some point somebody asked me if I knew a cardiac 3 surgeon who would look at a file but I don't 4 recall that. 5 Q. Do you recall any other cases where you and 6 Dr. Clancy have both been experts against a 7 physician? 8 A. No, I don't remember that. 9 Q. Do you recall any other cases where you have 10 testified against Kaiser physicians? 11 A. I'm thinking, again. I recall the answer is yes, 12 but I certainly don't recall a circumstance or 13 name at this moment. 14 Q. Have you ever testified in trial? 15 A. Yes. 16 Q. How many times? 17 A. Approximately a dozen. 18 Q. Is that 12 in toto, over time? 19 A. Right. 20 Q. How many depositions do you give each year, 21 roughly? 22 A. I've given about 50 in ten years, you know, more 23 in the last four years. I give them when they 24 need to be given. 25 I don't know, a dozen, maybe, I don't know 35 1 what I gave last year. I haven't counted. Maybe 2 I gave a dozen, maybe I gave fifteen. 3 Q. How many have you given this year so far? 4 A. I want to say three or four, again. 5 Q. Other than, I may have asked this and I apologize 6 if I'm repeating myself, but other than Ellen 7 Reibach's service, have you ever reviewed cases 8 for any other services? 9 A. No. 10 Q. What is your fee for reviewing a case? 11 A. I will receive from Reibach $200 an hour for 12 chart review, predep meeting, telephone 13 conversation, anything; but for depositions I 14 bill my usual fee, which is $500 an hour with a 15 two-hour minimum and should I appear at trial, I 16 will receive through the Reibach firm $3,000 plus 17 expenses for a day away. 18 Q. What about cases where, that you get without 19 Reibach that it's different, you know, 20 independently like this one? 21 A. Yeah, I have, since the early '90s, have the same 22 rates for depositions but my hourly review rate 23 is $400 an hour. 24 Q. So in this case, you would have charged $400 an 25 hour for review, 500 for depo time and what's 36 1 your fee for coming to trial? 2 A. That's not correct. This came through the 3 Reibach firm, so it's $200 an hour for review and 4 I've already told you my trial fee that is set by 5 the Reibach firm. 6 Q. Okay, I'm sorry, I apologize, I thought you said 7 that your cases with Mr. Hirshman had not come 8 through Reibach. 9 A. I was contacted in this case via Mr. Ruf and 10 Reibach. I didn't know Mr. Hirshman was part of 11 this until recently, but it's just fine with me. 12 Q. Do you know Mr. Hirshman in any way outside of 13 his being an attorney who has retained you to 14 look at cases? 15 A. No, I've never met him. 16 Q. You're not a friend of any of his relatives, 17 former relatives, anything like that? 18 A. No. 19 Q. Now, in your practice, I gather you see patients 20 who have hypertension? 21 A. Yes. 22 Q. Do you have any idea what percent of your 23 patients, both invasive and general cardiology 24 patients, have hypertension? 25 A. I'd guess and say 50 percent, 60 percent. 37 1 Q. So you see a lot of such patients? 2 A. Yes, I do. 3 Q. And then I gather you see some of those patients 4 who have hypertension and who also have diagnosed 5 aortic insufficiency? 6 A. I have some of those. 7 Q. Can you give me any estimate of the 50 percent of 8 your patients, let's say out of 100 patients, 50 9 of them have hypertension, how many of those 50 10 are also going to have aortic insufficiency? 11 A. Again, a lot of guessing. Three to five. Of any 12 degree? 13 Q. Correct. Of any degree, so it's three to five? 14 A. That would be a guess, yes. 15 Q. Do you know what the incidence is of aortic 16 dissection among the patients you've had, the 50 17 out of 100 who have hypertension? 18 A. Well, it's less than one in a hundred so far so I 19 can't continue this hypothesis. It doesn't 20 apply. 21 Q. So basically, the incidence of patients with 22 hypertension who develop, let's call it a 23 spontaneous aortic dissection is less than one in 24 a hundred? 25 A. Clearly. 38 1 Q. I'm sorry, we missed that answer completely. 2 A. It was clearly. 3 Q. Do you know what the incidence of aortic 4 dissection is among the group of three to five 5 patients out of a hundred who have hypertension 6 and also aortic insufficiency? 7 A. We have to go back to the beginning of this 8 hypothesis. Was this the entire world of 9 patients I see or the office patients I see? 10 Q. It was supposed to be all the patients you see. 11 Of your entire patient population, you said 12 roughly 50 percent have hypertension and of that 13 group three to five will have hypertension plus 14 aortic insufficiency. 15 A. I've never had one of those patients go on to 16 suffer an acute aortic dissection. Had those 17 patients gone into an aortic elective root 18 replacement because I follow their aortic root 19 size, I've never missed one yet that showed up in 20 the emergency room that I know of that went on to 21 dissect without previous surgery as indicated. 22 Q. Have you ever had a patient you were following 23 for any reason who developed a spontaneous, I'm 24 using the word spontaneous, maybe that's not 25 correct, but an aortic dissection? 39 1 A. I'm again thinking. No. Those that I follow now 2 who have been treated for aortic dissection were 3 first encountered in an emergency center. 4 Q. Do you know or have you read any studies which 5 talk about the incidence of patients who have 6 hypertension developing aortic dissection, 7 comparing that with the incidence of aortic 8 dissection among patients who have hypertension 9 plus aortic insufficiency? 10 A. I don't recall such a study with the exact design 11 you described. 12 Q. So you don't know if there's any difference in 13 the incidence of aortic dissection among patients 14 with hypertension and patients with hypertension 15 plus aortic insufficiency? 16 A. Right. It's the other diseases of the aorta that 17 predict aortic dissection. 18 Q. What other diseases of the aorta? 19 A. Dilated aortic root beyond 3.7 centimeters and 20 the presence or absence of a bicuspid aortic 21 valve. 22 Q. What studies are you referring to about those 23 conditions? 24 A. Every single treatise that I have ever read. 25 Q. So you're saying a dilation of an aortic root 40 1 beyond 3.7 centimeters indicates what? 2 A. It begins to identify an increased risk of aortic 3 dissection. 4 Q. Does the risk increase as the size of the aorta 5 increases? 6 A. Clearly, yes. 7 Q. How does the rate increase between 3.7 and 3.8? 8 A. Unknown. 9 Q. Between 3.7 and 3.9? 10 A. Unknown. Trivial. 11 Q. How about 3.7 and 4.0? 12 A. Same statement. 13 Q. And how about 3.7 and 4.1? 14 A. It's not a measure I can apply. Traditional 15 concept of aneurysms of the ascending aorta is 16 most people would agree 5 centimeters and beyond 17 start to indicate a clearly enhanced risk of 18 spontaneous acute dissection and beyond, though 19 there are those that do dissect at smaller aortic 20 diameters. 21 Q. Well, are we talking about an aneurysm or a 22 dilated aortic root? 23 A. When they get to that range, the terms are 24 synonymous. 25 Q. So to you a dilated aortic root is the same thing 41 1 as an aneurysm? 2 A. If it's five centimeters, yes. 3 Q. So five centimeters is the cutoff point for 4 recommending surgery for a patient with an 5 aneurysm; is that your understanding? 6 A. That's, again, actually a different question than 7 what I just answered which was the size at which 8 certain over significantly enhanced risk of 9 dissection would be a factor. 10 There is considerable controversy with some 11 authorities which quote 6 centimeters, some will 12 quote 5.5, some will quote 5. Some of it depends 13 on the operative suitability of the patient and 14 any, you know, co-morbidities they have that 15 would go into calculating their operative risk. 16 So it's not a simple measurement only. 17 Q. When you're referring to those measurements, are 18 you talking about both dilated aortic roots and 19 aneurysms? 20 A. In that size range, they're the same thing. 21 Q. Do you have any understanding at what point of 22 dilation an aortic root becomes, puts the patient 23 at higher risk for dissection? 24 A. It's a gradient and there is an increased risk at 25 any point beyond normal. 42 1 I don't know of data that have tried to 2 measure that risk in people, you know, at the 3 3.7, 3.8, 4.0 you began the questions with. 4 Q. So you believe there is an increased risk of 5 aortic dissection as the aortic root dilates but 6 you do not know and will not testify as to any 7 specific measurements? 8 A. I just did testify about a bunch of measurements 9 of 5.0 and beyond. 10 Q. So up to 5.0, you do not know what the risk, how 11 much the risk would increase? 12 A. That's true. It does but I do not have a number 13 to offer. And it doesn't, you know, you're 14 asking me group statistics. For a given patient, 15 a dilated aorta is a risk factor and that's the 16 key clinical importance. 17 Q. But you cannot quantify the degree of risk? 18 A. True. 19 Q. Your patients with aortic insufficiency, how do 20 you monitor them? 21 A. There is a huge spectrum of aortic insufficiency 22 and the majority of it is mild. 23 Those that have more moderate to severe 24 degrees of aortic insufficiency, have both serial 25 physical exams, histories and usually follow-up 43 1 echocardiograms on some interval between every 2 six to twelve months based on their particular 3 circumstance. 4 Q. What are the diagnostic criteria for calling 5 someone having mild AI? 6 A. It's typically judged on echo criteria as to the 7 width of the aortic insufficient jet and its size 8 as it regurgitates back into the ventricle. It's 9 an echocardiographic diagnosis typically. 10 Q. What are those two measurements you just referred 11 to, what is the width and what is the -- I can't 12 recall, the ejection size was it? I can't recall 13 what words you used. 14 A. They are measurements. One is the width of the 15 regurgitant jet seen on color doppler imaging and 16 one is the degree to which that jet regurgitates 17 back into the ventricle, if it regurgitates just 18 a small degree on color doppler imaging or 19 extensively. These are standard 20 echocardiographic qualitative measurements that 21 are, you know, in all textbooks. 22 Q. So do you know what width would classify someone 23 as a mild degree of AI? 24 A. It's not a number. It's a empiric qualitative 25 visual assessment. A narrower jet as opposed to 44 1 a wider jet being a marker of more advanced 2 aortic insufficiency. 3 Q. So patients with mild aortic insufficiency would 4 require no echo follow-up at all? 5 A. It's a spectrum, again. 6 There is, with enhanced echo equipment, a 7 fairly large number of patients with a normal 8 sized aortic root who may be detected on a 9 routine echo as having some minimum degree of 10 aortic insufficiency and they may not require any 11 follow-up other than a cardiology physical exam 12 at some future point predicated more on their 13 other disease. 14 And then there are those that have it as a 15 disease where it's, you know, an audible murmur 16 and a more moderate to severe degree and that 17 needs to be followed as to its effect on the 18 ventricle and if there's aortic root dilatation, 19 any progressive dilatation of the aorta. 20 Q. And I think you said they should get 21 echocardiograms and exams every, what, six to 22 twelve months? 23 A. We don't practice from a single cookbook, so the 24 range will vary but that's a ballpark with people 25 with aortic insufficiency identified as a 45 1 clinical problem, yes. 2 Q. So echocardiograms every 12 months for such a 3 patient would be appropriate? 4 A. Yes. 5 Q. Do the patients demonstrate any physical symptoms 6 or complaints if their aortic insufficiency is 7 progressing? 8 A. They can and it's important to identify those. 9 Q. And what symptoms or complaints would you expect 10 to see if a patient has worsening aortic 11 insufficiency? 12 A. The hallmark is progressive shortness of breath. 13 Sometimes it will be progressive fatigue. Very 14 infrequently chest pain. 15 Q. At what point would you refer such a patient -- 16 by the way, up to this point you as a 17 cardiologist are following these patients, right? 18 A. Right. 19 Q. At what point do you refer them to a surgeon? 20 A. The major indication for valve replacement for 21 aortic insufficiency is either the development of 22 symptoms, which is usually exertional shortness 23 of breath, or any sign that the ventricle is 24 failing such as a reduction in ejection fraction 25 and a progressive enlargement of the ventricle in 46 1 what's called the end systolic volume and there's 2 quite a bit of literature as to certain markers 3 in the disease process at which surgery is 4 recommended. 5 Q. If patients are having progressive aortic 6 insufficiency, is it more likely than not they 7 would have symptoms? 8 A. It can go either way. There's a very prolonged 9 period when those symptoms may be present despite 10 severe aortic insufficiency. 11 Q. What percent of patients would fall into that 12 group with no symptoms? 13 A. Severe aortic insufficiency? 14 Q. With no symptoms? 15 A. All of them with chronic aortic insufficiency at 16 some point in their course and ultimately most of 17 them years down the road will develop symptoms. 18 It can't be said more precisely than that. 19 Q. So most patients with worsening aortic 20 insufficiency will become symptomatic at some 21 point? 22 A. In their entire life span if they live a normal 23 life span that's a reasonable hypothesis, but it 24 can be decades of symptom free survival. 25 Q. What percent of patients who you refer to a 47 1 surgeon will ultimately go to surgery for valve 2 surgery? 3 A. I'm again thinking. Because it's a bit of a 4 funny question. I refer to surgeons under two 5 contexts: The usual one is I've evaluated the 6 patient completely, please operate in the next 7 week or month and I'd say essentially 100 percent 8 of those go on to surgery. I will on occasion 9 with a very complex patient who has obvious high 10 risk features for surviving surgery ask my 11 surgical colleagues to see a patient at some 12 point in my evaluation, perhaps even before a 13 catheterization because if they should agree that 14 no matter what I were to find with further 15 evaluation, they wouldn't accept the patient for 16 surgery because of these identified high risk 17 features, you know, I won't continue to pursue 18 the evaluation further. That's an infrequent use 19 of the surgeon. I often expect them to say 20 inoperable or prohibitive risks. 21 Q. What sort of things would put a patient in that 22 high risk category? 23 A. For aortic insufficiency? 24 Q. At too high of a risk to do the surgery? 25 A. Severely depressed ejection fraction and then 48 1 generally other disease states, severe lung 2 disease, a cancer, terrible functional status and 3 cachexia, something that's, you know, either 4 obvious or been identified in the literature as 5 either making them inoperable or prohibitively 6 operable. 7 Q. What about severe coronary artery disease? 8 A. That in general does not negate the referral or 9 the performance of surgery. It just becomes 10 often a combined procedure. 11 Q. I was going to say do you ever have a case where 12 the surgeon suggests doing CABG surgery either at 13 the same time or before doing the valve surgery? 14 A. Usually I've suggested it because I've done the 15 catheterization but of course that comes up with 16 frequency with all types of valves. 17 Q. If you have an asymptomatic patient, what would 18 you need to see on an echo to refer that patient 19 to a surgeon with regards to aortic 20 insufficiency? 21 A. It would either be a progressive failure 22 performance of the ventricle -- 23 Q. Meaning an ejection fraction that's declining? 24 A. That's one measure of that performance and I 25 mentioned another that's well recognized, end 49 1 systolic volume, generally over 50 or 55 2 millimeters; and the second one would be 3 progressive dilatation of the aortic root into 4 this five centimeter and beyond range which can 5 accompany the severe aortic insufficiency. 6 Q. What ejection fraction would you need to see to 7 decide that it's time to refer this patient to a 8 surgeon, assuming the patient is asymptomatic? 9 A. You don't refer on a single number. It's the 10 patient -- so the answer is that's not the only 11 factor. 12 What's their exercise tolerance, their 13 ventricular dimensions. What's their end 14 systolic dimensions. What's their co-morbid 15 status and suitability for surgery. You know, 16 you don't operate on a single number or refer on 17 a single number for ejection fraction. 18 Q. So you need to see all of those things? 19 A. If you're going to refer an asymptomatic patient 20 with a normal aortic root for aortic valve 21 replacement, you generally look for consistency 22 as far as reduced, you know, exercisability, 23 expanding ventricle, expanding end systolic 24 volume, dropping ejection fraction, yes. 25 Q. I was asking you about the non, the asymptomatic 50 1 patient, the patient where you, the patient has 2 no complaints but you do an echo and you see 3 changes which make you decide that this patient 4 ought to be referred to a surgeon so I was asking 5 you based, just based on that, what on the echo 6 would make you refer this patient to a surgeon 7 and were you saying in your answer that you need 8 to see changes in all three of those criteria; 9 the aortic root reaching a size of five 10 centimeters, an enlarged ventricle and the third 11 was, what, the end systolic volume? 12 A. With all due respect, one, I understood your 13 question completely and, number two, you're 14 confusing the topics unbelievably. I mentioned 15 treadmill time because -- again we're way off 16 base with any topic on this case but since you're 17 asking the questions, so I'm trying to give 18 answer. 19 Treadmill testing in asymptomatic patients is 20 established to help pick patients for surgery 21 during this state. So I picked that recognizing 22 that we used the duration on the treadmill as one 23 factor as one factor, and then I already 24 indicated the size of the aorta most often in 25 cases of aortic insufficiency have nothing to do 51 1 with the selection for surgical repair because in 2 the majority of patients it's normal or minimally 3 increased. 4 There are those that have very dilated aortas 5 and severe aortic insufficiency, but the majority 6 don't, so we have to subset the patient. 7 Q. Well, let me go back then. 8 A. Let me finish my answer very quickly. If you 9 don't have a dilated aortic root that in and of 10 itself mandates surgery and you're asymptomatic, 11 you use a combination of factors: The patient's 12 status, their treadmill time, echo findings such 13 as ejection fraction, ventricular diameter, end 14 systolic performance and volume and it's a 15 combination. 16 Q. Do you know what the criteria are for taking 17 patients to surgery to have a valve repair for 18 aortic insufficiency? 19 A. I just listed them in the asymptomatic patient 20 and the symptomatic patient is when their 21 symptoms develop if they don't have a prohibitive 22 reason not to recommend surgery. 23 Q. Would the ultimate decision to perform the 24 surgery be up to the surgeon or would you make 25 that decision as the cardiologist? 52 1 A. It obviously requires both A and B. I mean, the 2 literature of selection is largely in the 3 cardiology literature and part of our training 4 experience. If the surgeon I referred to for 5 some unexpected reason were to turn down a 6 patient, I'd get a second opinion. 7 Q. I may have asked you this before but what percent 8 of the patients you follow for aortic 9 insufficiency eventually come to surgery? 10 A. I can't answer because we haven't, I mean there's 11 too many variables. You got to provide me more 12 information. 13 Q. Well, do you know if any studies have ever been 14 done that show how many patients who are 15 diagnosed with aortic insufficiency, what percent 16 of that group eventually comes to surgical 17 repair? 18 A. Again, you've not provided enough information to 19 answer the question nor could the literature 20 answer the question you asked. No. 21 Q. So you are not familiar with any studies that 22 have investigated patients with aortic 23 insufficiency, what percent eventually progress 24 to a need for surgery? 25 A. I'm familiar with literature in people with 53 1 severe aortic insufficiency, I could quote you 2 the authors and the journals, yes, but you've not 3 asked that question. 4 You've asked of all my patients with aortic 5 insufficiency, which is hundreds and hundreds and 6 hundreds, the majority which I've testified 7 several times have mild degrees and they will 8 never have aortic valve replacement surgery. 9 Q. Well, I'm even talking about a bigger group than 10 that. I'm talking about any studies that have 11 been done of patients, let's say all commers with 12 aortic insufficiency, the percent that eventually 13 go to surgery and I think you're going to say 14 there has been no study investigating that, 15 correct? 16 A. If you take all commers with any degree of aortic 17 insufficiency, that's true. That study, to my 18 knowledge has never been done. 19 Q. How about any studies of patients on the rate of 20 progression from mild to moderate, moderate to 21 severe aortic insufficiency, any studies on that 22 subject? 23 A. Yes, there are studies on the natural history of 24 aortic insufficiency that is in the more severe 25 range. 54 1 Q. Have there been any studies done of patients with 2 moderate aortic insufficiency and the percentage 3 of that group that progresses to severe? 4 A. I believe the answer is no. The literature has 5 largely been on those with asymptomatic severe 6 aortic insufficiency and its natural history. 7 Q. And again in that group, asymptomatic severe 8 aortic insufficiency, what percent of that group 9 goes to surgery? 10 A. The natural history that's been reported for 11 years is that decades of survival without the 12 need for surgery is a common observation and 13 those studies were done before medical therapy 14 like ACE, A-C-E, inhibitors become common 15 factors. The current results are probably 16 superior. 17 There's no, you know, hundred patients that 18 are identical to another hundred patients. The 19 minority will need valve surgery within ten 20 years. I don't believe I can provide you an 21 answer with a number, which you seem to want 22 numbers, beyond that. 23 Q. Well, in this case, you believe that 24 Mrs. Broncaccio would have fallen in the group 25 that needed surgery, correct? 55 1 A. No. 2 Q. No, you do not believe that? 3 MR. RUF: He's thinking. Give 4 him a chance. You want an answer right 5 away. 6 A. Yeah, I mean -- I, again, if you are referring to 7 my report of April 4th, 1999, I do not plan at 8 trial in offering opinions on the outpatient care 9 of Mrs. Broncaccio that have, within reasonable 10 medical probability, a causation factor in 11 preventing her aortic dissection of December 7th, 12 1997. 13 Q. Oh, okay. So you are essentially, I'm looking at 14 your report, the second page, of which there's a 15 large paragraph discussing the outpatient care 16 and your conclusion that she would have had 17 surgery. You are withdrawing that opinion at 18 this time? 19 A. I'm, the opinions as expressed from the 20 standpoint of follow-up remain but from the 21 standpoint of being able to state within 22 reasonable medical probability that they, you 23 know, from a causation standpoint would have 24 altered her presentation of December 7th, I'm 25 essentially withdrawing. 56 1 Q. Okay. Are you going to be rendering any opinions 2 at all about the care Mrs. Broncaccio received 3 during the years she was a Kaiser patient up 4 until December 7th of 1997? 5 A. For the reasons I've just stated, no. 6 Q. Do you believe in this case or would you agree 7 that Mrs. Broncaccio was not necessarily a 8 compliant patient with the instructions she was 9 given by the Kaiser physicians? 10 A. I agree that it's clear she missed appointments. 11 Q. Now, you would agree during those years it would 12 have been inappropriate just to cold turkey stop 13 her medications, correct? 14 A. The patient or the physicians? 15 Q. For the physicians just to say we won't give you 16 any more blood pressure medication. We're going 17 to stop it. That would not be appropriate, would 18 it? 19 A. Not cold turkey, no. 20 Q. Would you agree that at the time -- well, by the 21 way, are you aware that doctor, well, I told you 22 Dr. Clancy was deposed. There have been other 23 depositions. Dr. Mulliken and Dr. Avery. 24 Have you heard anything about those 25 depositions? 57 1 A. I don't recognize those names. I believe I know 2 that there's an emergency room physician serving 3 as an expert for Mr. Ruf. I don't know which of 4 those two that is, but that's the extent of my 5 knowledge. 6 Q. Okay. Has anyone provided you with an outline or 7 a summary or a verbal description of what went on 8 during those depositions? 9 A. No. 10 Q. Would you agree with the statement that at the 11 time Mrs. Broncaccio presented to the emergency 12 room in the late evening hours of December 7th, 13 the most likely cause for her complaints was 14 something cardiac? 15 A. Cardiovascular, I would agree with. 16 Q. How about heart alone? Would you agree that the 17 most likely cause for her problems on her initial 18 presentation was an MI? 19 MR. HIRSHMAN: Looking 20 prospectively. 21 Q. Yeah. Not looking now from hindsight. I'm 22 saying at the time she was brought into the 23 emergency room from her presenting symptoms, 24 would you agree the most likely explanation on 25 presentation was an MI? 58 1 A. Before any testing was done? 2 Q. Yes. 3 A. On a statistical, epidemiologic basis, that would 4 be the best place to put your chips, yes. 5 Q. And actually at that point, there are other 6 noncardiac problems which could also create the 7 picture she came in with, correct? 8 A. I believe that's a fair statement, yes. 9 Q. You are aware of Mrs. Broncaccio's presentation 10 when she arrived in the emergency room? 11 A. Yes. 12 Q. With patients presenting the way she did, do you 13 have any idea what the most likely explanation 14 might be or what the most common cause is found 15 to be for their symptoms in an ER setting? 16 A. I think you just asked me that and I gave you an 17 answer. I mean, from an epidemiologic 18 standpoint, coronary artery disease or acute MI 19 or acute coronary syndrome, perhaps is a more 20 common term nowadays, would be the most likely, 21 you know, based on the single word chest pain. I 22 mean because you were asking me this before any 23 testing or history is obtained beyond that, as I 24 understand it. 25 Q. I think the other night Dr. Mulliken talked about 59 1 other causes which he as an ER physician has 2 seen, things like GI problems, other undefined 3 problems. 4 Would you agree that there are other possible 5 explanations for symptoms in those areas, as 6 well? 7 MR. RUF: What symptoms are you 8 talking about? I think you're mixing the 9 symptoms, Susan. 10 Q. I think I'm talking about her general 11 presentation, low grade chest pain. I think she 12 complained of a burning sensation, the whole 13 picture. I'm sorry, are you guys having a 14 discussion? 15 A. I think the differential diagnosis is well-known 16 to physicians, taught in medical schools, I'm 17 familiar with it. 18 Of course, a long list can be created of 19 theoretical causes of chest pain. A principle in 20 the emergency evaluation of chest pain is to 21 certainly consider those that are 22 life-threatening to a greater extent than those 23 that are not life-threatening; but that list is 24 long admittedly and should be and they should be 25 concerned with the most serious and 60 1 life-threatening ones being given the greatest 2 weight and diagnostic effort versus less serious 3 causes. 4 Q. Of the, based on her initial presentation, one 5 possible, I think you said the most likely 6 possible explanation that needed to be ruled out 7 was an MI; is that correct? 8 A. You asked me based on simply chest pain? 9 Q. Right. 10 A. That's true. 11 Q. No, I'm asking you on her complete, entire 12 presentation on arrival in the emergency room. 13 A. Well, her arrival in the emergency room, I asked 14 you before, does that include blood work, EKG, 15 nursing notes? Please give me a time frame 16 because she was in the emergency room for 17 two-and-a-half hours or so before she went to the 18 clinical decision unit. 19 Q. I'm talking about the first ten minutes she's 20 there, her presentation and her history. 21 A. I'd agree with you, they treated her with the 22 urgency, a level 3 triage, the immediate 23 electrocardiogram that is typically applied to 24 patients with suspected acute myocardial 25 infarction. 61 1 Q. And that was appropriate? 2 A. Yes. 3 Q. Would you also agree that a potential cardiac 4 diagnosis, the second most likely explanation 5 could be angina? 6 A. In the first ten minutes, I'd agree. 7 Q. At what point would you eliminate angina as a 8 possible explanation for her problem? 9 A. I wouldn't eliminate it. It remains in this 10 differential diagnosis list. As chest pain 11 persists without evolving electrocardiogram 12 changes or enzyme rises, the constant questioning 13 of the diagnosis of angina is a pattern and a 14 habit and a teaching. 15 Q. So you would agree that angina was a potential 16 diagnosis throughout the entire time she was in 17 the emergency room? 18 A. It would remain in the list of working 19 differential diagnoses. It becomes less likely 20 as time evolves and some features often 21 associated with angina like ST segment depression 22 and rising enzymes, if it's caused necrosis and a 23 response to nitroglycerin, if one chooses to get 24 one, as is commonly done, are pursued. 25 Q. In your opinion, was there any evidence of ST 62 1 segment depressions on any of the EKGs? 2 A. No. 3 Q. Was there any point in time throughout the entire 4 stay from the moment Mrs. Broncaccio entered the 5 emergency room until her death the next day when 6 you feel you could have ruled out angina? 7 Are you still thinking? 8 A. Yes, ma'am. You can rule out a myocardial 9 infarction by enzymes and the return of those 10 enzymes as normal. You know, you can't 11 completely rule out angina. Its typical nature 12 is that it lasts less than 30 minutes and 13 responds to nitrates of various types. That 14 aspect was never tested in this emergency room or 15 clinical decision unit care; but the persistence 16 of chest pain in the absence of enzyme rise or 17 EKG changes argues strongly against the accuracy 18 of the diagnosis, the clinical diagnosis of 19 angina. It forces a reconsideration. It's 20 taught in emergency room textbooks. It's taught 21 when I lecture to emergency room physicians. 22 Q. Are you saying that in order to diagnose the 23 patient with angina, you must have an increase in 24 the enzymes? 25 A. That's not what I said. 63 1 Q. You can have angina with normal cardiac enzymes, 2 correct? 3 A. Correct. It doesn't usually persist beyond 30 4 minutes and when it does, it's taught, and I 5 teach that a reconsideration of other causes of 6 chest pain and with those that are serious and 7 life-threatening being the first on the list and 8 all the others that we discussed, you know, in a 9 broad sense included being reevaluated and 10 reassessed. 11 Q. Would you agree with me, though, that at no point 12 while Mrs. Broncaccio was a patient at Kaiser 13 that evening and the next day did anything happen 14 which would permit the physicians to completely 15 rule out angina as the cause of her problem? 16 A. Angina is a symptom, you know. Nothing was done 17 to completely rule out coronary artery disease as 18 a cause of her problem. This is not typical 19 angina that persists for hours and hours without 20 EKG changes and enzyme rises. By definition this 21 is no longer typical angina. 22 Q. So it's your testimony that it was impossible at 23 some point in time for this lady to be having an 24 episode of angina? 25 A. I didn't use the word impossible. I used the 64 1 word it was no longer typical angina that 2 persists for hours in the absence of EKG changes 3 or enzyme rises. 4 Q. But you would agree it was still possible, then, 5 that this lady was having an anginal episode? 6 A. It becomes increasingly unlikely because it 7 becomes increasingly atypical. It becomes 8 increasingly improbable and it forces a 9 reconsideration of other causes of chest pain at 10 any time beyond 30 minutes in the absence of 11 chest pain. That's the definition of angina. 12 Q. So then would you agree with me, sir, it was 13 still possible, though in your opinion unlikely, 14 that she was having an anginal episode? 15 A. It was possible. It certainly wasn't treated as 16 a possibility in this case. 17 Q. But it was possible she was having an anginal 18 episode? 19 A. It was possible. It wasn't probable. 20 Q. Are you going to be testifying in the trial of 21 this case that the care Mrs. Broncaccio received 22 in the emergency room or in the CDU fell below 23 standards? 24 A. Yes. 25 Q. And I'd like you to just take your time and list 65 1 for me the ways you will be testifying the care 2 was inappropriate. 3 A. Yes. The failure to consider and document that 4 an aortic dissection was a reasonable and usual 5 consideration for Mrs. Broncaccio's symptoms both 6 in the emergency room and the clinical decision 7 unit. 8 The failure to reconsider that possibility on 9 transfer to the clinical decision unit with the 10 persistence of chest discomfort and follow-up 11 electrocardiography remaining normal. 12 The failure to pursue diagnostic testing for 13 aortic dissection initially in the emergency 14 center being the appropriate place but 15 subsequently at any point on transfer or 16 afterwards in the clinical decision unit and that 17 testing available at Parma would be a chest CT 18 scan with contrast. 19 The failure to transfer Mrs. Broncaccio to a 20 center capable of high level treatment and 21 specific treatment of aortic dissection and in 22 this case that would obviously be the Cleveland 23 Clinic and that would begin both as a criticism 24 in the emergency room and at multiple points in 25 the clinical decision unit. 66 1 The failure of Dr. Ryder when coming on shift 2 at nine in the morning in the clinical decision 3 unit to review the patient chart, review her 4 course and, again, going back to the first 5 criticism, reconsider the probability and 6 possibility of aortic dissection and pursue 7 testing to evaluate its presence or absence and 8 that would be a CT scan and, as follows, a 9 failure to transfer her to that tertiary level 10 center. 11 Those are the ones that have a weight of 12 causation. 13 Q. At what point in time do you think that 14 Mrs. Broncaccio should have been transferred to 15 the Cleveland Clinic? 16 A. Before she went to the clinical decision unit. 17 Q. For what reason at that point? 18 A. She had a presentation that required 19 consideration of aortic dissection. She had 20 features that put her at risk beyond the average 21 patient for that. She had availability of 22 testing for that process at Parma that offers a 23 high level of accuracy and had that testing been 24 done in that first hour or hour-and-a-half as is 25 possible and indeed common in emergency centers, 67 1 the diagnosis would have been evident and the 2 transfer would have been pursued. 3 Q. So if other physicians in this case have 4 testified the care was appropriate up until 2:00, 5 roughly 3:00 in the morning, you think those 6 physicians are incorrect? 7 A. Again, if it's recent deposition testimony, I've 8 already told you I haven't seen summaries or the 9 depositions. I think 2:00 is a clear time frame 10 that I'd point to as, of importance as it's about 11 the time her chest pain was recorded again as 12 four out of ten. It's soon after the time she 13 required boluses of intravenous fluids to support 14 her pressure which I interpret as an instability 15 beyond the average patient evaluated for chest 16 pain. That's a good time to highlight but it's a 17 well-known part of an emergency room consultant 18 and physician's thought process to consider 19 aortic dissection earlier than that, too. 20 Q. Now, how do you know that? You're not an 21 emergency room physician. 22 A. When I walk up to a chart and a cart and I'm the 23 first physician to see a patient having chest 24 pain in the emergency center, which I do on a 25 weekly basis, you can call me whatever you want 68 1 to call me, but I've got to think of the causes 2 of chest pain and choose which diagnostic tests 3 seem appropriate to pursue. 4 I also am certainly familiar with emergency 5 room literature, emergency room textbooks, I read 6 emergency room journals, as I indicated, I work 7 with emergency room doctors, I lecture to 8 emergency room doctors, I teach emergency room 9 residents rotating through all of the portions of 10 the hospital and my office. 11 Q. So, doctor, your opinion in this case is 12 basically any patient who comes to any emergency 13 room with any degree of chest pain has to be 14 evaluated for an aortic dissection? 15 A. That's true in that that evaluation begins with 16 the recognition of its possibility and a 17 consideration of the particular factors in the 18 case that weigh for or against pursuing that 19 possibility. 20 Q. So you think, again, every patient who comes to 21 the emergency room complaining of any degree of 22 chest pain has to be evaluated for an aortic 23 dissection? 24 A. In the way I just mentioned, that's right, that 25 evaluation begins with the appreciation of the 69 1 possibility of aortic dissection as a cause of 2 chest pain, the initial database of history, 3 physical, routine labs and electrocardiogram and 4 chest x-ray and assessing at that point the 5 differential diagnosis presented by that 6 database. 7 Q. Okay. Now let's look at Mrs. Broncaccio 8 specifically. 9 You said that she had some factors which made 10 her at higher risk for aortic dissection? 11 A. Yes. 12 Q. What is the incidence of aortic dissection in the 13 normal population of 69-year olds? 14 A. If somebody has done that study, I give them 15 credit. I don't believe anybody has ever done 16 that. 17 Q. So you don't know what the percent of risk would 18 be for the average 69-year old? 19 A. Just asked and answered. It's not the way 20 medical science is usually constructed. We don't 21 do studies and report them on 69-year olds. On 22 the elderly, maybe on general populations but not 23 in the way you're asking, so I can't answer it. 24 Q. So you have no idea what the risk would be for 25 the average person in Mrs. Broncaccio's age group 70 1 to sustain a spontaneous aortic dissection? 2 A. That's a different question. 3 There is some general epidemiologic data, if 4 I recall, of maybe between four and ten cases in 5 a hundred thousand in the population, but that 6 wasn't done in just 69-year olds. 7 Q. For a person who's Mrs. Broncaccio's age, the 8 general risk of sustaining an aortic dissection 9 would be somewhere between, what did you say, 10 four in a hundred or four in a hundred thousand? 11 A. No. My answer was its general frequency in the 12 population was on the order of four to ten cases 13 per hundred thousand patients. That's not 14 patients presenting to the emergency room with 15 chest pain. That's people living in America. 16 Q. Now, how is Mrs. Broncaccio's risk, what risk 17 factors did she have that would put her at higher 18 risk? 19 A. One, there's no documented history of previous 20 chest pain over weeks or months and one feature 21 that can characterize aortic dissection is the 22 nuance of chest pain or abrupt onset of chest 23 pain. 24 Number two, she has a history of hypertension 25 which is by far the risk factor that is taught 71 1 and discussed as raising a concern over aortic 2 dissection beyond average of the etiology of 3 chest pain. 4 Three, she has a known abnormality of some 5 type of her aortic valve; and those would be the 6 things known simply by history, excuse me, by 7 history. 8 There's other features but those would be 9 those that would be available in the first few 10 minutes by history. 11 Q. Now, those three factors, how much did they 12 increase her risk beyond the four to ten per 13 hundred thousand group? 14 A. Unknown but exactly enough to order a chest CT 15 scan. 16 Q. So you're saying every person like 17 Mrs. Broncaccio should have a chest CT scan? 18 A. No. When they prove to have a normal 19 electrocardiogram and normal CPK and they've had 20 instability of their vital signs, including a 21 presyncopal episode, that's sufficient to say, 22 yes, every one. 23 Q. So you would not order the CT scan, then, until 24 after we have normal EKG and normal enzymes? 25 A. You used the plural. I used the singular. 72 1 Q. So you're saying, okay, after one normal EKG and 2 one normal enzyme, you would order a CT scan? 3 A. With what I just described as the profile of this 4 patient, yes, I would, absolutely. You can't 5 wait on suspected aortic dissection. It doesn't 6 have the luxury of evaluating the typical chest 7 pain patient. 8 Q. Okay. Now you've changed things a bit here. You 9 not only would evaluate this lady but you would 10 have suspected she was having an aortic 11 dissection? 12 A. I've already testified you suspect an aortic 13 dissection in every single chest pain because 14 it's one of the life-threatening etiologies of 15 chest pain. You then perform a history, a 16 physical and a routine database to test that 17 suspicion and decide whether it's valid to pursue 18 it with specific testing or not. 19 Q. So basically if you have a normal enzyme, a 20 normal EKG, you automatically would get a CT scan 21 for this patient, for patients like this? 22 MR. RUF: With this presentation? 23 Q. With what we've been talking about? 24 A. With what we've been talking about, yes. If she 25 came in with a five millimeter anterior ST 73 1 elevation and a CPK of 1,000 and I had that in my 2 first ten minute database, I have an obvious 3 diagnosis of acute myocardial infarction and I 4 can then discount my concern over other 5 life-threatening causes of chest pain such as 6 aortic dissection or pulmonary embolism and 7 that's a scenario. 8 This is the other end of the spectrum and a 9 common end of the spectrum. 10 Q. In your opinion, had her aorta already begun 11 dissecting by the time she arrived in the 12 emergency room? 13 A. More likely than not, yes. 14 Q. How far was it? How advanced was the dissection? 15 A. It would be my opinion that it had already torn 16 proximally. It may well have already involved 17 the right carotid artery. Beyond that, I can't I 18 believe say. She had nausea soon thereafter by 19 one in the morning and that likely represented 20 involvement in and around the mesenteric 21 abdominal vessels, so at least by that point, it 22 probably had advanced to that state. 23 Q. In your opinion she had nausea at one in the 24 morning? 25 A. It's documented in the chart that she was less 74 1 nauseated at one in the morning, so it had 2 occurred earlier than that, too. It's in fact 3 documented at midnight, also. 4 Q. You agree that the chest x-ray that was taken was 5 completely normal or let's say unchanged from 6 previous chest films? 7 A. I'd prefer you say that and as a portable upright 8 film, yes. 9 Q. What's the basis for your opinion that the CT 10 scan would have been anything but normal? 11 A. I just offered my opinion within reasonable 12 medical probability that she had dissected prior 13 to presenting to the emergency room and a chest 14 CT with contrast has a sensitivity in the range 15 of 90 percent for detecting aortic dissections of 16 all types. 17 Q. Of any degree? 18 A. Of any degree, so that statement follows those 19 two facts. 20 Q. You believe there's a 90 percent accuracy for CT 21 scans? 22 A. With contrast across the board as a reasonable 23 ballpark number. 24 Q. How about a CT scan without contrast? 25 A. That's not the test you order unless there was a 75 1 life-threatening iodine allergy so it's not 2 pertinent to this case. It wouldn't be ordered 3 that day. 4 Q. So if someone would suggest just a regular CT 5 scan should have been ordered, you think that 6 person is incorrect? 7 A. In the absence of an iodine allergy you're not 8 utilizing the full information that can be 9 obtained from such a study. The identification 10 of a dilated aortic root would be something that 11 could be assessed and would have its implications 12 but the proper test is to order it with contrast 13 in the absence of a life-threatening iodine 14 allergy. 15 Q. Doctor, what is heartburn? 16 A. It's a general term of some discomfort I imagine 17 in the epigastrium or lower chest and it can have 18 a range of causes. 19 Q. What are the usual causes when we use the term 20 heartburn, what do people usually mean? 21 A. Well, I'm a cardiologist. It obviously can be a 22 GI acid based symptom. It can be an anginal 23 equivalent. It can be a symptom of myocardial 24 infarction. It can be from other causes that 25 affect the GI tract and its circulation. 76 1 Q. Have you ever diagnosed an aortic dissection as a 2 primary care physician or back in the days when 3 you were working in an emergency room? 4 A. Well, again, the term primary care physician has 5 me puzzled but, you know, during my moonlighting 6 shifts I don't remember diagnosing an aortic 7 dissection. I diagnosed it in other settings. 8 Q. How many times have you diagnosed it? 9 A. I've diagnosed it in the emergency room six to 10 eight times as the front line person, I 11 believe -- I'm not boasting -- probably the first 12 person to recognize that disease state and in the 13 first 24 hours in hospital course as a function 14 of practicing in a group, I've probably been 15 involved in 20, 25 patients over the course of 16 more than ten years. 17 Q. Now, the eight you diagnosed in the emergency 18 room setting, had they seen another physician 19 first? 20 A. The most recent one had not. That was in about 21 November. Probably the others were a mix. 22 Certainly some had. 23 Q. The patient, the most recent one this November, 24 who had seen the patient before you? 25 A. I'm recalling. I think an ER resident may have 77 1 begun the history and then the gentleman, I 2 remember quite clearly, started complaining of 3 much more chest pain and that's when I got 4 called. It was before any diagnostic testing 5 maybe other than his electrocardiogram. I don't 6 remember when that was done. 7 Q. What was the presentation of that patient, the 8 one in November? 9 A. A house painter, a crack user. 10 Q. No, I mean the physical presentation, the 11 symptoms, his complaints? 12 A. He had anterior chest pain. It was pressure 13 like. He was uncomfortable, sweating. He was 14 restless. He was actually quite verbal. He 15 wasn't very happy with how he felt. 16 Q. He was in a lot of pain? 17 A. Restless. He was looking for relief. 18 Q. Would you characterize his pain as severe? 19 A. At, no, I would call him restless and 20 uncomfortable. 21 Q. Have you ever seen a patient present with an 22 aortic dissection which was having severe ripping 23 or tearing chest pain? 24 A. I've seen one that gave that complete 25 description. That was early in my training. I 78 1 remember that patient. 2 Q. How did the others present as you recall? 3 A. A variety of types of chest pain. Sometimes 4 chest and back pain. About half of them I was 5 called in because it was chest pain or pressure 6 predominantly. 7 Q. Would you agree that the literature generally 8 states that aortic dissections present with a 9 severe degree of pain? 10 A. I would agree that that would be a typical but 11 not mandatory feature. 12 Q. Would you agree that Mrs. Broncaccio's 13 presentation was an atypical presentation for an 14 aortic dissection? 15 A. No, I wouldn't agree. 16 Q. So if there's been testimony to that effect, you 17 believe that person is wrong? 18 A. I don't know whose testimony or what testimony 19 you're referring to. My opinion is the features 20 in this case were sufficiently typical to warrant 21 a serious evaluation of her aorta as I described. 22 Q. So you believe that Mrs. Broncaccio's 23 presentation is a typical presentation for an 24 aortic dissection? 25 A. It's sufficiently supportive after a history, 79 1 physical and laboratory database to prompt an 2 evaluation. If you only wait until every feature 3 is present, you won't possibly diagnose those 4 that you need to diagnose, the standard emergency 5 room teaching. 6 Q. So again you believe her presentation is typical 7 for warranting an investigation for an aortic 8 dissection? 9 A. Absolutely. 10 Q. Have you ever diagnosed a patient with an aortic 11 dissection who died? 12 A. I wasn't the first person to diagnose, in fact 13 I've had two like that, but, yes, before surgery. 14 Q. Did you say that you have cared for 20 to 25 15 aortic dissection patients as an attending or 16 that you have diagnosed another 20 to 25 as an 17 attending? 18 A. The first proposal. I have partners that have 19 made the diagnosis and in the course of the 20 patient's hospitalization I've been involved in 21 their care, but they began as my partner's 22 patient. 23 Q. So including the eight that you diagnosed in the 24 emergency room setting, you've actually seen from 25 28 to 33 aortic dissection patients? 80 1 A. Over the course of, again, fellowship in 1986, 2 yes. 3 Q. So in 14 years? 4 A. Right. What would that work out to be, one or 5 two a year? That's right on the money. 6 Q. How many of them were thoracic aortic dissections 7 and how many began at other levels of the aorta? 8 A. I don't recall, but the majority would be 9 ascending aortic dissections. 10 Q. Is that a more common diagnosis in your 11 experience than an abdominal aortic dissection? 12 A. It's been a more common diagnosis that I've been 13 involved with than a distal aortic dissection, 14 yes. 15 Q. How many other cases have you testified in 16 involving an aortic dissection? 17 A. Never a trial. I maybe was deposed once. I 18 don't know if that case I ever gave a deposition 19 on. I've looked at a number of files, but they 20 seem not to have gone all the way to completion. 21 Q. Can you recall any that you've written a report 22 in, any cases of an aortic dissection? 23 A. I'm vaguely remembering one. I'm not even sure 24 what part of the country. I think it's the east 25 coast that I at some point may have authored a 81 1 report a couple years ago. 2 Q. What was that case about, if you can remember? 3 A. About a 50-year old man sitting and playing 4 cards, developed chest pain that had not 5 previously been present. I don't remember the 6 other features other than he did go to a hospital 7 and spend about 36 hours there. The discharge 8 with a last note indicating that he still had 9 chest pain at that moment and he died within 24 10 hours and autopsy proved aortic dissection. He 11 had a history of hypertension. 12 Q. In Beaumont Hospital in the chest pain unit, is 13 there any protocol for the number of enzyme 14 studies that are done before the patient is sent 15 home, a chest pain patient? 16 A. In the chest pain center or the short stay 17 center? 18 Q. Either one. I mean at the hospital is there any 19 protocol for doing two or three series of 20 enzymes? 21 A. There's practice patterns. I'm not certain, and 22 I don't see, you know, for instance hanging on 23 the wall, a single protocol that's, you know, 24 followed by all. If it exists, I don't know. 25 Q. In your own practice, do you feel that one enzyme 82 1 study is sufficient to rule out an MI? 2 A. No, but it does provide information that allows 3 one to make some judgments but it's not usually 4 considered the end point. 5 Q. What is the end point? 6 A. Typical protocol is over the course of six to 7 twelve hours, sometimes even a bit beyond, a 8 series of enzymes that might include a second and 9 a third measurement. 10 Q. So the typical protocol requires a series of 11 three enzyme studies to be negative before the 12 practitioner can rule out an MI, correct? 13 A. Well, there's clinical judgment in ruling out an 14 MI and then there's biochemical rule-out of MI. 15 The biochemical obviously isn't going to be 16 completed until the last biochem test returns. 17 The clinical judgment can be, you know, offered 18 and be part of that differential diagnosis and 19 assessment earlier than the final biochemical 20 test. 21 Q. What do you mean by clinical judgment? 22 A. This is an example. If you have continual or 23 nearly continual chest discomfort without 24 evolving EKG changes and the first CPK is normal, 25 the clinician can offer a judgment as to the 83 1 probability of myocardial infarction, which in 2 this case would be low. It can be supported and 3 confirmed with a subsequent biochemical test but 4 it's not that we can't offer and act on those 5 probabilities earlier than the test returning. 6 You don't have to only wait for one diagnosis to 7 be completed before pursuing other diagnoses. 8 Q. Doctor, it's almost 8:00 here. I would like to 9 take a little break. We've been at this for 10 almost two hours, okay, before we resume? 11 MR. HIRSHMAN: Are we going off 12 the record? 13 MS. REINKER: Yes. 14 - - - - 15 (Thereupon, a discussion was had off 16 the record.) 17 - - - - 18 Q. Doctor, have you ever been sued for malpractice? 19 A. I've -- 20 MR. RUF: Objection. But go 21 ahead, doctor. 22 A. Twice in my career I've been named in a 23 complaint. 24 Q. And did either of those cases go to trial? 25 A. No. 84 1 MR. RUF: Susan, can I have a 2 continuing objection to this line of 3 questioning? 4 MS. REINKER: Yes. 5 MR. RUF: Okay. 6 Q. What was the first case about? 7 A. About 1991 it was a patient admitted to the 8 hospital in Ann Arbor that I was practicing at 9 with atrial fibrillation. At some point in his 10 heart course, he suffered a disabling but not 11 fatal stroke and there were allegations about how 12 certain blood thinners were managed during that 13 several week hospitalization. I was in a large 14 group and many of the cardiologists in the group 15 were named. 16 Q. And what was the second case about? 17 A. The second case was an engineer who presented to 18 the emergency room after blacking out at home in 19 obvious cardiogenic shock with an acute MI. My 20 partner took him to the catheterization lab 21 immediately, fixed his heart and he got better 22 but then he didn't move his legs and it was 23 apparent days later that when he fell from his 24 heart attack, he had injured his cervical spine 25 and the emergency room physicians and a number of 85 1 other medical doctors, including myself, were 2 named in that complaint. 3 Q. Was any money paid in either of those cases on 4 your behalf? 5 A. No. 6 Q. I gather that in this case, you do not think that 7 the complaint of back pain around three in the 8 morning was a significant factor? 9 A. I didn't make that statement. I do. 10 Q. I mean, you've never mentioned it this evening. 11 That's why I wondered. 12 A. Well, my recollection was, and perhaps the hour 13 is fading, in those criticisms, that was one time 14 point. If I didn't mention it, it was an 15 oversight. I mention it in my written report. I 16 do find that an important clinical milestone, 17 yes. 18 Q. You find a single complaint of back pain a 19 clinical milestone? 20 A. No. A single clinical complaint of back pain 21 recorded on the chart in a setting of a 70-year 22 old, 69-year old woman with hypertension with an 23 aortic valvular problem with persisting chest 24 pain despite normal EKGs and nonrising cardiac 25 enzymes with a murmur heard by an emergency room 86 1 physician, yes, I find that important in that 2 setting. 3 Q. I'd like you to tell me is there any way in which 4 the care rendered in the emergency room met the 5 recognized standards? 6 MR. RUF: Other than what he's 7 already testified to? He already testified 8 the first ten minutes was fine. 9 Q. Well, I'd like to hear it from the doctor. 10 Doctor, what did they do in the emergency 11 room that met the recognized standards of the 12 medical community? 13 A. They triaged her a level 3. They got an 14 electrocardiogram done quickly. They maintained 15 oxygen, either established an IV or just 16 maintained the one established en route. When 17 her blood pressure was low, they bolused her with 18 various amounts of intravenous fluid. They kept 19 her on a cardiac monitor. They did order EKGs. 20 They did order enzymes. That's a rapid answer to 21 your question. 22 Q. Is there a point in time, will you give them a 23 certain number of hours to do this cardiac workup 24 before considering an aortic dissection? 25 A. No. It begins with the history. It has to begin 87 1 with the history. In every chest pain case, it's 2 part of the differential diagnosis as is taught 3 in emergency room texts, as I teach my emergency 4 room doctors and the hypothesis is constantly 5 tested and evaluated as the database is expanded 6 and as the patient is further observed. 7 Q. At what point in time do you believe it was 8 mandatory to obtain a CT scan? 9 A. Before she was transferred out of the emergency 10 room. 11 Q. So you would give them up until 2:00 a.m. to do 12 the CT scan? 13 A. Had it been done within that time frame, I would 14 offer no criticisms assuming that on identifying 15 the dissection she was transferred appropriately, 16 yes. 17 Q. Assuming it showed a dissection? 18 A. I've already testified as to my opinion on that. 19 Q. How much money have you been paid so far for your 20 services in this case? 21 A. I wasn't asked to bring billing records. I don't 22 hide them. I just don't have them with me. I 23 don't know if in the course of two years of which 24 this chart has sat dormant for probably a 25 year-and-a-half I have, what, eight hours into 88 1 this case, so multiply by 200. Let's go 2,000. 2 I'm giving it a ballpark. 3 Q. Are there any other opinions that you intend to 4 render at the trial of this case? 5 MR. RUF: His report does contain 6 an opinion on proximate cause. 7 Q. Doctor, have you performed cardiac surgery? 8 A. You already asked me that and I already gave you 9 an answer, ma'am. I'm not a cardiac surgeon. As 10 a medical student I participated in a small 11 number of operations. I still go in the 12 operating room as an observer. 13 Q. Do you believe that Mrs. Broncaccio had any 14 underlying medical problems that might have 15 complicated the results of her surgery? 16 A. None that made it more likely than not that she 17 wouldn't have survived the surgery and the 18 hospital course. 19 Q. Did she have any underlying medical conditions 20 that you're aware of at all? 21 A. Those that were known, I've stated: Her history 22 of hypertension. Her history of aortic valvular 23 disease. And as subsequently has been shown on 24 her autopsy, the presence of coronary artery 25 disease became apparent only after death. 89 1 Q. Would you agree she had triple vessel disease? 2 A. By autopsy criteria, yes, I agree. 3 Q. Was she a candidate for cardiac bypass surgery? 4 A. At what point in time? 5 Q. At any point in time? Do you think this lady 6 needed cardiac bypass surgery? 7 A. She didn't need it more than the repair of her 8 aorta on December 8th. That's what she needed 9 and the approach by the Cleveland Clinic 10 typically has been in acute cases to simply 11 repair the aorta and make the procedure 12 relatively short so as to enhance patient 13 survivability. 14 Had they performed bypass, it would have been 15 wonderful. Had they not, it would have been 16 wonderful because there are alternative 17 treatments that can be offered for coronary 18 artery disease if needed beyond medicine. 19 Q. Do you think her coronary artery disease put her 20 at any risk at all of surviving the surgery? 21 A. It slightly increases the risk but far less than 22 the statement more likely than not she would have 23 survived. It's a small predictive factor but 24 there are excellent survival rates both short 25 term and long term in patients treated at the 90 1 Cleveland Clinic. 2 Q. Do you know to what degree her risk was increased 3 by her underlying cardiac disease? 4 A. I mean, the general results reported out of the 5 Cleveland Clinic are a hospital mortality well 6 below 20 percent in patients with acute aortic 7 dissection. That includes the subset of patients 8 with coronary artery disease whether they're 9 treated or not treated with simultaneous bypass 10 surgery. 11 Q. So in your opinion she was at no greater 12 increased risk from her underlying cardiac 13 disease? 14 A. No, that's not what I testified but I testified 15 it's relatively small and from a standpoint of 16 predicting survival during the hospitalization, 17 it's highly probable she would have survived. 18 Q. Are there any other opinions you're going to be 19 rendering at trial? 20 A. I would offer opinions as to her long-term 21 survivability. 22 Q. And I will object to any such opinions since 23 they're not set forth in your report; but what 24 opinions are you going to render on that subject? 25 A. There is both a general observation as well as 91 1 specifically long-term follow-up data from the 2 Cleveland Clinic that identifies a survival of 3 ten years and beyond as being more likely than 4 not in patients of her general age who are 5 surgically operated on for acute aortic 6 dissection. That's been found in other series 7 and is present in our teaching and in textbooks. 8 I think that's likely to have been the outcome 9 here. 10 Q. So your testimony will be that she had a ten-year 11 life expectancy? 12 A. That's what's available out of our great surgeons 13 of the Cleveland Clinic and other centers around 14 the world. 15 Q. Are you aware of any other medical conditions 16 which might have shortened her life expectancy? 17 A. Those figures encompass all commers. Actually 18 the presence of coronary artery disease hasn't 19 been identified as an independent factor after 20 surgery of this type for shortened survival. 21 It's probable she would have needed some 22 treatment for coronary artery disease consisting 23 at least of medical therapy and possibly at some 24 future point interventional therapy such as I 25 perform. 92 1 Q. Do you think that Mrs. Broncaccio's life 2 expectancy of ten years would have been shortened 3 in any way by her underlying cardiac disease and 4 her prior myocardial infarction? 5 MR. RUF: Wait. I have an 6 objection. He has testified ten years and 7 beyond. You're trying to limit that to ten 8 years. 9 MS. REINKER: Yeah, I asked him if 10 he said ten years and he said he agreed ten 11 years. 12 MR. RUF: He said ten years and 13 beyond before and now you're trying to 14 limit him to ten years. 15 Q. Doctor, to a reasonable degree of medical 16 certainty, how long will you testify this woman 17 would have lived if she'd had her surgery? How 18 long? 19 A. Medical science allows me to answer with 20 reasonable medical probability that the 21 statistics are beyond ten-year survival and that 22 encompasses in my opinion the fact that the 23 autopsy identified the presence of coronary 24 artery disease. 25 Q. So you're going to say this lady would have lived 93 1 to some point in her 80s? 2 A. Well, at age 69 a life table would give her 15 to 3 16 years of predicted survival. I haven't 4 testified 15 or 16 years. I've testified within 5 the limits that I believe can be indicated from 6 the medical literature and our understanding of 7 this disease. 8 Q. So you will say ten years but you have no idea 9 how long beyond ten years? 10 A. Ten years and beyond but no specific comments as 11 to more precise. 12 Q. And you do not believe her underlying cardiac 13 disease or her prior MI would shorten her life 14 expectancy from that, from that ten years plus? 15 A. I'm incorporating those features found on her 16 autopsy in that answer, yes. 17 Q. So you will be testifying that her life 18 expectancy of ten years plus would not be 19 diminished by either her underlying cardiac 20 disease or her prior MI? 21 A. Right. Those would be factors in the full 16 22 years that a life table would offer her but not 23 to the answer I've given for the probability of 24 survival ten years and beyond. 25 Q. The studies you are referring to, when they say 94 1 ten years and beyond, they're referring to 2 patients with prior MIs? 3 A. They're referring to patients treated for acute 4 aortic dissection with timely surgery, any 5 surgery. 6 Q. So those studies do not include patients with 7 prior MIs and underlying coronary artery disease? 8 A. Of course they do because those features are 9 present in a good number of patients who suffer 10 this condition. 11 Q. And all of those patients have lived beyond ten 12 years? 13 A. That's not what I've testified to. That's not 14 what medical probability applies. 15 Q. What percent of patients will not live ten years? 16 A. Less than 50 percent. 17 Q. So 49 percent won't make it ten years. 51 18 percent will? 19 A. It's somewhat better than that at the ten-year 20 cutoff. It's better than that at the five-year 21 cutoff. 22 Q. Are there any other opinions you will be 23 rendering at trial? 24 A. No. I think we've covered them all. 25 Q. Doctor, are you going to be rendering any 95 1 opinions about the use of dictating equipment at 2 trial? 3 A. No. 4 Q. Do you use dictating equipment? 5 A. Yes. 6 Q. Do you use that routinely in your office 7 practice? Do you dictate your notes? 8 A. Yes. 9 Q. Have you ever dictated in an emergency room 10 setting? 11 A. Yes. 12 Q. I presume you dictate your cardiac cath reports? 13 A. Yes. 14 Q. Have you had, ever had an experience where the 15 dictating equipment failed? 16 A. Completely where an entire report is lost, yes. 17 Q. Have you ever had an experience where parts of 18 reports were missing? Excuse me? 19 MR. RUF: The doctor is thinking. 20 A. I don't recall such an event in the hospital, no. 21 Q. Never heard of such a thing? 22 A. That's now a different question. 23 Q. Oh, have you ever heard of such a thing 24 happening? 25 A. Have I heard of reports being lost, yes. Have I 96 1 heard of just the physical exam section being 2 omitted, I can't say that I have. 3 Q. Have you ever heard of not just the physical exam 4 section but multiple sections of the dictated 5 document being missing in the dictation? 6 A. It hasn't happened to me and it's not part of my 7 practice to review other doctor's experience, so 8 I can't say I've heard of it happening. 9 Q. If a physician discovers that parts of his or her 10 dictation are missing, what is the appropriate 11 way to remedy that? 12 A. In a timely manner, incorporate either by 13 dictation, which would be the common practice, or 14 incorporate the missing part into the written 15 record. 16 Q. And it would be important to date it at the time 17 you incorporated it? 18 A. All entries in the record should be dated, so 19 this would be just as important as all 20 circumstances, yes. 21 Q. Do you ever hand write progress notes? 22 A. In hospital charts frequently. 23 Q. If you ever, do you ever incorporate into a 24 progress note information that some other person 25 has given to you, maybe a resident, maybe a 97 1 nurse? 2 A. I can certainly understand that happening, yes. 3 Q. If you found out something that you had written 4 to have been incorrect, what would you do about 5 that? 6 A. I might cross it out and write error, I've done 7 that. I might write addendum below or somewhat 8 further into the chart and correct any 9 misnotation I made. 10 Q. Did you see where that occurred in this case in 11 Dr. Ryder's written progress note? 12 A. I can't tell you I recall there being a 13 Dr. Ryder's progress note. 14 MS. REINKER: Mark, can you show 15 him that written progress note? 16 MR. RUF: Yes. Let me find it. 17 A. Okay. 18 Q. Do you have it there in front of you, sir? 19 A. I've seen this note, yes. 20 Q. Do you see on the third line where Dr. Ryder 21 crossed off the word upper and wrote error above 22 it? 23 A. Yes. 24 Q. That would be an appropriate way for a physician 25 to correct what was a mistake in the record, 98 1 would it not? 2 A. That's true. 3 Q. And if you look down below, Dr. Ryder wrote a 4 second note? 5 A. I do. 6 Q. Dated the same date but a different time where he 7 explains why he made the change up above? 8 A. Yes. 9 Q. That is also an appropriate thing for Dr. Ryder 10 to do, correct? 11 A. Assuming it accurately reflects what he was told, 12 it's the appropriate way to record in the chart, 13 yes. 14 Q. And that's an appropriate way to correct what the 15 physician believes is an error in his charting? 16 A. Right. 17 Q. The patients that you see in the short stay unit 18 at Beaumont, was it Beaumont? 19 A. Right. 20 Q. Do you routinely go into the short stay unit 21 every day as an assigned task when you're on call 22 for that unit? 23 A. When our group has patients in the short stay 24 unit, I routinely go there. 25 Q. Is there another department at the hospital which 99 1 is, of physicians which is responsible for 2 monitoring the short stay unit? 3 A. Yes. The emergency room department. 4 Q. Do you know how they staff the short stay unit 5 during the day shift? 6 A. There is a emergency room physician assigned to 7 the short stay unit and he begins his day by 8 making rounds on all the patients and reviewing 9 their progress from the evening before. 10 Q. And is that the same ER physician who is assigned 11 to the emergency room that day or is it a 12 separate physician assigned to the short stay 13 unit? 14 A. It's the latter example. He wouldn't be assigned 15 to the main emergency room portion 16 simultaneously. 17 Q. Have you ever played that role and been the ER 18 physician for the day assigned to the short stay 19 unit? 20 A. Only in that I round on my own patients. I 21 wouldn't round on other cardiologist's or 22 physician's patients, no. 23 Q. There are patients there, it's not just 24 cardiology patients, is it? 25 A. It's not just but a large number have some 100 1 cardiac situation that's being evaluated. 2 Q. What percent or how many, let me ask first how 3 many beds are there in the short stay unit? 4 A. There's 18 or 20. Something in that range. 5 Q. What percent usually have cardiac patients? 6 A. I don't know. It's an important number. I don't 7 know if it's 40 or 60 or 30 or 70 but it's not 8 two. 9 Q. You would have no idea what the ER physician 10 assigned does with regards to the noncardiac 11 patients, correct? 12 A. That's true. I don't participate in that 13 activity. I'm using cardiac in a broad term, 14 cardiovascular system disease being suspected or 15 evaluated. 16 Q. Again, do you believe, doctor, that we've 17 discussed all the opinions that you intend to 18 render at trial in this case? 19 A. Right. 20 Q. If you think of any new opinions between now and 21 the trial, would you please let Mr. Hirshman or 22 Mr. Ruf know that so I may redepose you on those 23 subjects? 24 A. Yes, of course. 25 Q. That's it. Thank you. 101 1 A. Thank you. 2 Q. I have one more question I just remembered, sir. 3 Do you have any handwritten notes from when you 4 reviewed these materials? 5 A. No, I don't. 6 Q. Did you ever have any handwritten notes? 7 A. No, I never did. 8 Q. And I'll bet you never got any correspondence 9 from Mr. Ruf or Mr. Hirshman either? 10 A. Of course I did. Very generic bland letters that 11 say here is the deposition of Dr. so and so. 12 Q. Do you have it there with you? 13 MR. RUF: We're hanging up, Susan. 14 Q. Do you have the depositions with the written 15 letters there with you? 16 A. I have three or four of these vanilla cover 17 letters. 18 Q. Do any of them contain any summaries or any 19 recitations of the facts of this case? 20 A. I just told you no, they don't. 21 MS. REINKER: Thank you, that's 22 all. 23 24 _________________________ JOSEPH KAHN, M.D. 25 102 1 2 C E R T I F I C A T E 3 4 The State of Ohio, ) SS: County of Cuyahoga.) 5 6 I, Pamela S. Greenfield, a Notary Public 7 within and for the State of Ohio, authorized to administer oaths and to take and certify 8 depositions, do hereby certify that the above-named JOSEPH KAHN, M.D., was by me, before 9 the giving of his deposition, first duly sworn to testify the truth, the whole truth, and nothing 10 but the truth; that the deposition as above-set forth was reduced to writing by me by means of 11 stenotypy, and was later transcribed into typewriting under my direction; that this is a 12 true record of the testimony given by the witness, and was subscribed by said witness in my 13 presence; that said deposition was taken at the aforementioned time, date and place, pursuant to 14 notice or stipulations of counsel; that I am not a relative or employee or attorney of any of the 15 parties, or a relative or employee of such attorney or financially interested in this 16 action. 17 IN WITNESS WHEREOF, I have hereunto set my hand and seal of office, at Cleveland, Ohio, this 18 ____ day of ____________, A.D. 20____. 19 20 ______________________________________________ Pamela Greenfield, Notary Public, State of Ohio 21 1750 Midland Building, Cleveland, Ohio 44115 My commission expires June 30, 2003 22 23 24 25 103 1 W I T N E S S I N D E X 2 PAGE CROSS-EXAMINATION 3 JOSEPH KAHN, M.D. BY MS. REINKER......................... 3 4 5 E X H I B I T I N D E X 6 EXHIBIT MARKED 7 Kahn Exhibit 1, eight-page Kahn CV..................... 5 8 Kahn Exhibit 2, 9 three-page 4/4/99 Kahn report......... 21 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25