1 1 IN THE COURT OF COMMON PLEAS 2 SUMMIT COUNTY, OHIO 3 THERESA McGARVEY, et al., 4 Plaintiffs, 5 JUDGE COSGROVE 6 -vs- CASE NO. CV 98 06 2523 7 LAUREL LAKE NURSING HOME, 8 et al., 9 Defendants. 10 - - - - 11 Deposition of ELLA KICK, DNSc., RN, taken as if 12 upon cross-examination before Laura L. Ware, a 13 Notary Public within and for the State of Ohio, at 14 the offices of Linton & Hirshman, Hoyt Block 15 Building - Suite 300, 700 West St. Clair Avenue, 16 Cleveland, Ohio, at 10:10 a.m. on Friday, April 7, 17 2000, pursuant to notice and/or stipulations of 18 counsel, on behalf of the Plaintiffs in this cause. 19 20 - - - - 21 WARE REPORTING SERVICE 22 21860 CROSSBEAM LANE ROCKY RIVER, OH 44116 23 (216) 533-7606 FAX (440) 333-0745 24 25 2 1 APPEARANCES: 2 Ellen Hobbs Hirshman, Esq. Tobias J. Hirshman, Esq. 3 Linton & Hirshman Hoyt Block Building - Suite 300 4 700 West St. Clair Avenue Cleveland, Ohio 44113 5 (216) 781-2811, 6 On behalf of the Plaintiffs; 7 Michael F. Lyon, Esq. (Via Telephone) Lindhorst & Dreidame 8 312 Walnut Street, Suite 2300 Cincinnati, Ohio 45202 9 (513) 421-6630, 10 On behalf of the Defendant Chris Marquart, M.D.; 11 Martin T. Franey, Esq. 12 Rawlin, Graves & Franey 1240 Standard Building 13 Cleveland, Ohio 44113 (216) 579-1602, 14 On behalf of the Defendants 15 Akron General Medical Center, Akron Clinic Physician Group, 16 Akron General Health System; 17 Frederick P. Vergon, Jr., Esq. Smith, Marshall, Weaver & Vergon 18 1965 East Sixth Street, Suite 500 Cleveland, Ohio 44114 19 (216) 781-4994, 20 On behalf of the Defendants Laurel Lake Nursing Home and 21 Laurel Lake Retirement Community, Inc. d/b/a Laurel Lake Nursing Home and 22 Laurel Lake Retirement Community, Inc. 23 24 25 3 1 2 3 W I T N E S S I N D E X 4 PAGE 5 CROSS-EXAMINATION 4 BY MS. HIRSHMAN 6 CROSS-EXAMINATION 89 7 BY MR. LYON 8 CROSS-EXAMINATION 104 BY MR. HIRSHMAN 9 RECROSS-EXAMINATION 106 10 BY MR. LYON 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 ELLA KICK, DNSc., RN, of lawful age, called 2 by the Plaintiffs for the purpose of 3 cross-examination, as provided by the Rules of Civil 4 Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as follows: 6 CROSS-EXAMINATION OF ELLA KICK, DNSc., RN 7 BY MS. HIRSHMAN: 8 Q. Would you please state your name. 9 A. Ella Kick. 10 Q. And Mrs. Kick, what is your address? 11 A. 1226 Forest Drive, Wooster, Ohio. 12 Q. Oh, you just handed me your business card, okay. 13 Are you generally addressed as Dr. Kick, you said, 14 or Ms.? 15 A. When I'm at the university I am or when I'm on duty 16 I am, but mostly people call me Ella. 17 Q. Okay. What is your profession, ma'am? 18 A. Nursing. 19 Q. And what is your date of birth? 20 A. 12-14-30. 21 Q. And are you licensed to practice nursing? 22 A. Yes. 23 Q. And in what states? 24 A. Ohio. 25 Q. How long have you been licensed in Ohio? 5 1 A. Since 1951. 2 Q. Who is your employer at present? 3 A. Myself. 4 Q. So you're self employed? 5 A. Yes. 6 Q. How long have you been self employed? 7 A. About a year and eight or nine months. 8 Q. And in your present position as being self employed, 9 what kind of work do you do; what does your 10 profession involve? 11 A. I consult with nursing homes and I do educational 12 programs, I sometimes consult with organizations, 13 also organizations that deal with nursing homes or 14 nursing. The last consultation I did with an 15 organization was an organization that dealt with 16 nurse aides who work in nursing homes. 17 Q. Why don't you describe for me, first of all, since 18 you've been self employed the last year and eight 19 months or so, how much of your time on a weekly 20 basis you spend dedicating to your professional 21 needs or your professional work? 22 A. Maybe 20 hours some weeks, maybe 30 or 40 hours 23 another week, maybe 10 hours another week. You 24 know, the kind of work I do isn't something where 25 you work 8:00 to 4:00 Monday, Tuesday and 6 1 Wednesday. You know, I set my own hours so -- 2 Q. So on -- would you be able to average? 3 A. If I were to say an average, I'd say 20 hours. 4 Q. Can you tell me the names of the nursing homes that 5 you've consulted with over the last year, year and a 6 half? 7 A. Westview Manor, which is a religious home in 8 Wooster, it has four levels of care. Then I've 9 consulted with -- that was the most recent one I 10 consulted with. 11 Q. And when was that? 12 A. In the last month. 13 Q. Okay. 14 A. I consulted with one in Dayton, maybe last summer. 15 I don't think I've done any others. It's mostly 16 been organizations and with teaching. I've been 17 teaching at Ashland University where I was formerly 18 employed. I've been doing lectures there. The last 19 lecture I did there was two weeks ago. 20 Q. And what was the lecture you just gave two weeks ago 21 at Ashland? 22 A. It dealt with nursing and public policy and 23 government. 24 Q. And you mentioned there's other organizations that 25 you consult with that deal with nursing homes. Can 7 1 you tell me the names of some of those 2 organizations? 3 A. Yes, AOPHA, which is the Association of Ohio 4 Philanthropic Homes for the Aging. They are 5 nonprofit nursing homes. And I'm trying to think of 6 the name of the organization. There's an 7 organization in Akron that deals with nurse aides. 8 It's called the Ohio Nursing Assistant 9 Organization. 10 Q. Can you tell me what it is you did with AOPHA? 11 A. Yes. 12 Q. In other words, what was the nature of your 13 consultation? 14 A. Yes. I consulted with them about educational 15 programs for -- they give educational programs for 16 nurses as well as other people who work in nursing 17 homes, and I work on, say, the curriculum and I also 18 do some of the lecturing, but I haven't done a 19 lecture for them since October. 20 Q. And what is the nature of the consultations you've 21 provided to this organization in Akron? 22 A. Oh, they're writing a grant proposal to get money to 23 teach nurse aides who work in nursing homes, to 24 provide them with more education and to study the 25 needs, what their educational needs are. And they 8 1 had a grant and this was a renewal of an existing 2 grant, and so it took some time to get the 3 information together and to assure that it would be 4 funded, and then it was funded. 5 Q. Have you provided any hands-on nursing care since 6 you've been self employed? 7 A. No. What I do is I may give demonstrations in a 8 classroom, but I don't have a for real patient 9 there. Might have a manikin or a student, I mean an 10 employee who I call a student. 11 Q. A volunteer? 12 A. Yes. 13 Q. Would you please tell me prior to becoming self 14 employed by whom you were employed? 15 A. Ashland University. 16 Q. And can you tell me the dates which you were 17 employed by Ashland? 18 A. Yes. I was employed by them from August 1 of '94 to 19 July 1 of '97. 20 Q. Just so -- I need to fill the gap here. Does that 21 mean you've been employed since July of '97? 22 A. Uh-huh. 23 Q. So it's been more than a year and eight months and 24 you've been self employed for about two and a half 25 years? 9 1 A. It's two years, yeah, I'm sorry. 2 Q. Okay, that's why I asked, that's okay. Sometimes my 3 math is bad, but I got lucky there. Okay. 4 So when you were employed at Ashland 5 University, can you tell me what your 6 responsibilities were there? 7 A. Yes, I was the dean in the school of nursing, and 8 that's a small school, so half time was teaching and 9 half time was administration. 10 Q. And approximately how many hours a week would you 11 devote to your profession when you were working at 12 Ashland? 13 A. Well, it was all of my time I devoted to my 14 profession. 15 Q. I'm sorry, it was probably an in-artfully phrased 16 question. How many hours per week on average would 17 you devote to your profession when you were employed 18 at Ashland University? 19 A. Well, they employed me as a nurse, so I spent all of 20 my time in nursing. 21 Q. Were you working there 20 hours a week, 30 hours a 22 week, 40 hours a week? 23 A. Oh, I see what you mean. 24 Q. Yeah. 25 A. Well, that time varied too. Sometimes I'd be there 10 1 60 hours a week, always 40 hours a week at least, 2 and sometimes, quite a bit of the time, more than 3 40. 4 Q. And then why did you leave that position? 5 A. I thought it was time to retire from full-time 6 work. 7 Q. Were you doing any outside consulting work when you 8 held that position at Ashland University? 9 A. Yes, I did. 10 Q. And what type of additional work did you do? 11 A. I did some lecturing at other places, continuing 12 education lectures for nurses, and if a nursing home 13 called me and wanted consultation I consulted with 14 them. 15 Q. And what percentage of your time back then when you 16 were at Ashland would involve consulting work? 17 A. Two or three percent. 18 Q. Prior to being at Ashland, can you tell me by whom 19 you were employed just prior to that? 20 A. Middle Tennessee State University. 21 Q. I'm sorry, middle? 22 A. Middle Tennessee State University. 23 Q. And what were your dates of employment there, 24 please? 25 A. January 1 of '90. I was there three years, so it 11 1 would have been December 1 of '92. 2 Q. Three years until '93? '92, okay. 3 A. '92. 4 Q. See, you won on that one. 5 Now, between December of '92 leaving Middle 6 Tennessee State University and August 1 of '94 when 7 you went to Ashland University, what did you do in 8 that time? 9 A. I became a bride. 10 Q. So you took some time off? 11 A. Yeah, I got married. 12 Q. Well, good for you. What was your title or your 13 role or responsibilities at Middle Tennessee State 14 University? 15 A. I was the national -- I had the National Health 16 Corp. Chair of Excellence in Nursing. 17 Q. And what does that mean? 18 A. Well, the National Health Corp. is a national 19 organization home based in Nashville, Tennessee. At 20 the time I was there they owned 78 nursing homes in 21 the Southeastern United States with maybe a couple 22 in Texas and one in California. I don't know how 23 many they own now. 24 Q. And what were your responsibilities as the chair of 25 this corporation? 12 1 A. No, I wasn't the chair of the corporation. 2 Q. Oh. 3 A. I had a chair at the university. 4 Q. Oh, it's a position? 5 A. And it was called the National Health Corp. Chair of 6 Excellence in Nursing. 7 Q. But you were a professor, that means, at Middle 8 Tennessee State? 9 A. Yes, I was a professor, but I also, since National 10 Health Corp. was founding or financing my position, 11 I consulted with a lot of nursing homes that were 12 owned by National Health Corp. 13 Q. Were you a professor then at Middle Tennessee State? 14 A. Yes, yes, I taught nursing students. 15 Q. And were you particularly involved in teaching 16 nursing students as to the policies and procedures 17 and nursing standards in nursing home settings? 18 A. Yes, I taught nursing administration and 19 gerontological nursing. 20 Q. And that was a full-time position? 21 A. Yes. 22 Q. And you said sometimes you would consult at some of 23 the nursing homes that were observed by this 24 corporation? 25 A. Yeah, that was part of the job. And also I founded 13 1 a wellness center for elderly people. It was open 2 only on Wednesdays and I worked there on 3 Wednesdays. 4 Q. Prior to being at Middle Tennessee State University, 5 where were you employed? 6 A. Kent State University. 7 Q. And how long were you at Kent State? 8 A. Four and a half years. 9 Q. So that would be from what year, in '85, '86? 10 A. August of '85 until December 31st of '89. 11 Q. And again, what was your title or role there at Kent 12 State? 13 A. I was an Associate Professor of Nursing. 14 Q. And what type of courses did you teach there? 15 A. I taught growth and development, I taught 16 gerontological nursing, nursing process, and nursing 17 administration. 18 Q. Prior to being employed at Kent State, where were 19 you employed? 20 A. Prior to that I was in school at Indiana University 21 in Indianapolis getting a doctoral degree, and while 22 I was getting the doctoral degree I worked for an 23 HMO on weekends and I did telephone triage. 24 Q. And what were those dates when you were obtaining 25 your doctorate? 14 1 A. I was there three years, from -- let me see, I went 2 to Kent in '85, so it would have been from '82. I 3 went there in August of '82 and left in August of 4 '85. 5 Q. And the reason I'm going through all this is because 6 I do have a copy of your curriculum vitae, but it's 7 not all spelled out, so that's why I want to take 8 the time to go through it. 9 A. That's okay. 10 Q. Prior to '82 when you went to Indiana University? 11 A. I was at University of Akron. 12 Q. And what was your title at University of Akron? 13 A. Assistant Professor. 14 Q. And what were the dates you were employed there? 15 A. From August of '78 until August of '82. 16 Q. You were full time working as an assistant 17 professor? 18 A. Yes. 19 Q. Were you working in any other capacity on a 20 professional level in that time frame, in other 21 words at a hospital, nursing home, consulting? 22 A. No, but you see, every place where I worked when I 23 was at the university I had students and I was in 24 the clinical area with the students because that's 25 how you teach students, you take them to the 15 1 clinical area. 2 Q. When you say the clinical area, are you talking 3 about actually going into the hospital and providing 4 care, overseeing the nurses providing care? 5 A. Most of the time nursing homes, but hospitals, I 6 went to Akron General. 7 Q. Okay. 8 A. And Akron City. 9 Q. Did you do that at Kent State as well? 10 A. Yes. 11 Q. Could you tell me some of the nursing homes you 12 rotated through when you were at Kent State? 13 A. Yes. The Lutheran home in North Canton, St. Luke's, 14 it's called St. Luke's Lutheran Home. Oh, gosh, 15 there are two of them in Ravenna. I don't remember 16 the names. 17 Q. That's okay. How about through Akron, were there 18 nursing homes -- 19 A. When I was in Akron? 20 Q. -- you would go to? 21 A. There was Valleyview in Akron and Manor Care in 22 Akron. Those are the only ones that come to mind 23 right now. 24 Q. What percentage of your time would you spend 25 actually clinically supervising nurses in nursing 16 1 homes when you were at Akron University, for 2 example, as opposed to classroom teaching? 3 A. See, you're in the classroom such a short time. 4 Well, I would say somewhere between 10 and 20 hours 5 a week. 6 Q. In the nursing homes? 7 A. Uh-huh, or hospital. 8 Q. Or hospitals, okay. 9 A. Uh-huh. Or sometimes it was ambulatory care 10 clinics, because they need a well rounded 11 education. 12 Q. Like urgent care centers? 13 A. No, we never went to urgent care. At Akron we had a 14 wellness center where patients could come in right 15 there. 16 Q. Prior to being at University of Akron, I guess that 17 would take us back to '78? 18 A. Yeah, okay. I was with the University of 19 Cincinnati, but the last year that I was at 20 Cincinnati, from '77 to '78 -- I mean from June of 21 '77 to July 1 of '78, I had a fellowship with -- a 22 Robert Wood Johnson fellowship to study to be a 23 nurse practitioner, and I did that for a year at the 24 University of Colorado in Denver. And I worked with 25 the geriatrics there, but my other three years with 17 1 the University of Cincinnati I founded the Master's 2 in Gerontological Nursing Program there. It was the 3 only one in the state at the time, so I taught 4 gerontological nursing. 5 Q. From '74 to '77? You said three -- 6 A. '73, I think. 7 Q. Okay, that's fine. 8 A. Yeah, it was from '73 to '77. I started there in 9 September. They were on quarters, so I started in 10 September. 11 Q. Prior to the University of Cincinnati, where were 12 you employed, please? 13 A. I was at the Ohio Department of Health for five 14 years. 15 Q. So that would be from '68 to '73, approximately? 16 A. Yeah, January 1 of -- no, January 1 of '69. 17 Q. To '74 then? 18 A. Yeah, to September 1st of '74. And I was a 19 Medicare/Medicaid licensure surveyor. I said five 20 years, it was really four and a half. 21 Q. Okay. You're talking about University of Cincinnati 22 or Department of Health? 23 A. Ohio Department of Health was more like four and 24 three-quarters. 25 Q. And when you were a Medicare/Medicaid surveyor, can 18 1 you describe for us what that involves? 2 A. When I first started I had seven counties in this 3 area. I had Summit County, Wayne County, Holmes 4 County, Ashland County, seven counties, and every 5 nursing home in those seven counties had to be 6 evaluated on an annual basis, which I did. And 7 then, oh, if the Governor got a complaint from 8 someone he'd call and I would have to drop 9 everything and go investigate the complaint, write a 10 report. 11 And at that time surveyors also did some 12 teaching. I would organize classes for the nurses 13 in nursing homes so that when you went in you 14 weren't just gigging them for something they didn't 15 do right. You know, you helped them to do it right. 16 Q. So back when you did that, the defendant's nursing 17 facility, the Laurel Lake Retirement Community, 18 wasn't there, obviously? 19 A. Oh, no. 20 Q. You were not involved in ever surveying the 21 defendant's facility? 22 A. Oh, no, I think they're only about 10 or 12 years 23 old. I went to their open house when they opened, 24 and it seems like that was only 10 or 12 years. 25 Q. How was it you were invited to their open house? 19 1 A. Well, I go to all the gerontological meetings in 2 Ohio and I speak at a whole lot of them, and so 3 people invite me to these things, and so then I go. 4 Q. Prior to being with the Ohio Department of Health, 5 by whom were you employed? 6 A. I was at Ohio State getting a Master's Degree. 7 Q. And the dates you were obtaining that degree? 8 A. From September of '67 to December of '68. 9 Q. And prior to that by whom were you employed or where 10 were you working? 11 A. I was employed by the Wooster Hospital for about six 12 months. 13 Q. What type of nursing were you engaged in at that 14 time? 15 A. Obstetrics. 16 Q. And prior to that where did you -- 17 A. Prior to that I was a Director of Nursing in a chain 18 of three nursing homes. I left that job, my husband 19 died. That's how I ended up in obstetrics, my 20 husband died, the three nursing homes was a 21 24-hour-a-day job, I had two little kids and I 22 couldn't handle it. 23 Q. Too time consuming? 24 A. Uh-huh. 25 Q. And what was the chain, was that a corporation that 20 1 owned three nursing homes? 2 A. Yes, it was Horn Nursing Homes. 3 Q. So that would have been in what time frame? 4 A. From June of '66 to February of '67. 5 Q. Prior to that where did you work? 6 A. I was in school at Ohio State getting a Bachelor's 7 Degree. 8 Q. And that was in what time frame? 9 A. March of '64 to June of '66. 10 Q. And prior to that what did you do? 11 A. I was at Mansfield General Hospital. 12 Q. What was the nature of your nursing responsibilities 13 there? 14 A. I was Maternal and Child Health Supervisor. 15 Q. What were your dates of employment? 16 A. I left there in March. I went there in September of 17 '62, so September of '62 until March of '64. 18 Q. And prior to that where did you work? 19 A. I was at the Wooster Community Hospital. 20 Q. What was the nature of your nursing responsibilities 21 at Wooster? 22 A. I was there for a ten-year period because I started 23 there in March of '52, so in the time that I was 24 there I was the night supervisor for about three or 25 four years. 21 1 Q. Supervisor of nursing care? 2 A. Uh-huh, the whole hospital. In those days you even 3 put the turkey in the oven on Thanksgiving. I was 4 also head nurse in OB, in maternity, for maybe three 5 years. I worked a 3:00 to 11:00 shift in OB for 6 maybe a year, and I worked days in maternity for a 7 couple years. That might make up ten years. I know 8 that I was there ten years. 9 Q. And then between receiving your RN certificate in 10 '51 and going to -- 11 A. I was with the Polio Foundation. 12 Q. So '51 to '52 you were with the Polio Foundation? 13 A. From September of '51 to March of '52 I was with 14 Polio and they assigned me to the old city hospital 15 in Cleveland, which is now Metro General. Before 16 that I was a nurse's aide for two years. 17 Q. So I'd like to go through your training and 18 experience in the last -- and I understand that when 19 you have had teaching responsibilities teaching 20 nurses, a part of your teaching responsibilities are 21 teaching in a clinical setting, right, supervising 22 nurses in a clinical setting? 23 A. As well as lecturing. 24 Q. Right, right. When is the last point in time, 25 however, that you were actually working in, let's 22 1 say, a nursing home setting providing patient care 2 as the care provider? 3 A. You mean employed by the nursing home or working 4 with the student? 5 Q. Employed by the nursing home working, not 6 supervising a student. 7 A. Employed with the nursing home would be at Horn's in 8 '66. 9 Q. But in your teaching responsibilities you supervise 10 nurses learning in a nursing home setting? 11 A. Yes. 12 Q. Do you do that at present? 13 A. No, I don't, unless the nursing home employs me to 14 teach something, then I would. 15 Q. Okay. So at present -- 16 A. I don't have students now because I'm not at the 17 university. 18 Q. And you completed your teaching, you left, I guess, 19 Ashland University in July of '97? 20 A. Yes. 21 Q. You mentioned that you were actually at the opening 22 of the Laurel Lake Retirement Community? 23 A. Uh-huh. 24 Q. Have you ever been back there since you were there 25 to celebrate their opening? 23 1 A. No, and I don't -- when I was there I don't remember 2 seeing any patients there either. I mean, I saw the 3 building. 4 Q. Okay. 5 A. And they had tea and punch and cookies. 6 Q. So it was a party, really? 7 A. Yeah. 8 Q. And to the best of your recollection you've never 9 been back there since? 10 A. No. 11 Q. And when you were there it was prior to them 12 actually having patients or residents living at the 13 community? 14 A. Uh-huh, yes. 15 Q. You mentioned before one facility that had, I think, 16 four levels of care at Westview? 17 A. Yes. 18 Q. How many levels of care are there at Laurel Lake 19 Retirement Community? 20 A. I can't say with 100 percent accuracy. 21 Q. That's fine. 22 A. I would assume that they have at least three levels 23 of care, and I would -- I know that they have 24 skilled care and they have assisted living, and 25 since they take Medicaid I am certain they would 24 1 have intermediate care, and they may even have 2 independent living. I don't remember if they do or 3 not. 4 Q. Can you tell me what materials you reviewed 5 regarding this case? Because I notice you didn't 6 bring anything with you today, right? 7 A. Oh, yes. 8 Q. Oh, it's on the floor. I didn't see it. 9 MR. VERGON: She's got a whole suitcase 10 full of stuff there. 11 A. Yes, I do. 12 Q. There we go. 13 A. I reviewed the clinical record of Mr. McGarvey for 14 the two admissions that he had at Laurel Lake, and I 15 reviewed depositions and reports. So can I list the 16 depositions first or the reports first? 17 Q. Well, you know what, actually paragraph one of page 18 one of your report you list -- 19 A. Yes. 20 Q. -- a number of things. 21 A. Yes. 22 Q. So we already have those written down. If it would 23 make it easier, can you tell me what since you wrote 24 your report that you've reviewed? 25 A. On that report I don't think it's listed the report 25 1 of Hadley Morgenstern-Clarren. 2 Q. Okay. 3 A. I'm not sure if that report -- you can tell me if it 4 includes the report of James Chesebro, M.D. 5 Q. Okay. 6 A. Daniel Guiton, M.D., George Taylor, M.D., Robert 7 Bahler, B-A-H-L-E-R, M.D., Roger Chaffee, M.D., 8 Steven, H-E-U-P-L-E-R, M.D., George Litman, M.D., 9 Sheldon, T-R-A-E-G-E-R, M.D. Then I have 10 depositions. I think they're all listed on there. 11 Q. Well, the reports that you just listed, are these 12 all materials that you've read, reviewed, since you 13 wrote your report? 14 A. I think so, otherwise I would have listed them. 15 Q. Have you reviewed any nursing policy procedure 16 manuals from Laurel Lake? 17 A. No, I have not. 18 Q. You know, and just so we're clear, when I refer to 19 Laurel Lake I want to make sure we're all on the 20 same page in that we're including or referring to 21 the Crown Center? 22 A. Crown Center, yes. 23 Q. You understand the Crown Center -- 24 A. Yes. 25 Q. -- is actually the skilled nursing facility? 26 1 A. Yes. I call it Laurel Lake because I just call it 2 Laurel Lake. 3 Q. So if I use Laurel Lake or Crown Center for purposes 4 of reviewing this case, we know Bob McGarvey was 5 really at the Crown Center which is the skilled 6 nursing facility? 7 A. Yes. 8 Q. Okay, very good. 9 Before we go into your report, you know, why 10 don't we finish talking about your curriculum 11 vitae. We already went through your employment 12 history. Do you have a copy of your curriculum 13 vitae in front of you? Mr. Vergon has one. 14 MR. VERGON: I have one. 15 Q. On page six, if you can look at that with me for a 16 moment. 17 MR. VERGON: There is no page six. 18 MS. HIRSHMAN: You don't have a page 19 six? 20 Q. It looks like a five, but I think it's six. 21 A. Oh, yeah, it is six. 22 Q. It's the second last page, right? 23 A. Yes. 24 Q. You talk about being a speaker and participating at 25 seminars and institutes and workshops and in-service 27 1 programs. Can you explain to me -- you say from 2 1970 to the present. Would that essentially be the 3 type of seminars you've already mentioned to me that 4 you've been involved in? 5 A. Yes. For about five years I was -- I chaired the 6 American Nurse's Association Counsel of Nursing Home 7 Nurses, which required me to go all over the country 8 speaking. So I did a lot of that in the early '80s, 9 I'd say, but then during that time I got to be known 10 by other people, so then people kept calling me to 11 go to various places to speak or to consult with 12 them about problems they had in nursing homes. 13 I went to Puerto Rico a couple times for the VA 14 consulting with their nursing home there, and I 15 consulted with George Washington University when 16 they were developing their Master's Degree in 17 gerontological nursing, then I consulted with 18 Proctor & Gamble when they were developing Attends, 19 which is no longer on the market, but it's a large 20 size pamper, if you know what a pamper is. It's a 21 brief that people wear. I consulted with them on 22 that. With Ross laboratories, I consulted with them 23 on -- they have a publication for nursing home 24 nurses which they no longer have. They quit in 25 '94. I consulted with them as far as getting 28 1 articles written and what would be important to put 2 in the newsletter, and I wrote a lot of the articles 3 also. 4 Q. You know what, also then on the last page, on page 5 seven, actually it was the last item, you say you've 6 been a consultant to law firms in Ohio, Indiana, 7 Florida, Virginia and Missouri from 1980 to the 8 present. Can you tell me in what regard you've 9 consulted with law firms? 10 A. Well, I took all those as a whole. I don't mean 11 I've done anything in Missouri in the last year. 12 Q. Okay. 13 A. I hope I didn't lead you to believe that. I haven't 14 done anything in Missouri for maybe ten years or 15 Virginia either or Florida. I guess I've only done 16 something in Ohio and Indiana in the last five 17 years. 18 Q. I guess I'm just trying to get an understanding as 19 to whether or not the consulting you've done with 20 law firms in these dates has been of a medical/legal 21 nature -- 22 A. Yes. 23 Q. -- such as you're doing in this case? 24 A. Yes. 25 Q. So you've been doing this kind of consultation for 29 1 attorneys in the medical/legal setting since 1980? 2 A. Yes. 3 Q. And obviously you're still doing it at present 4 because you've involved with this case, right? 5 A. Yes. 6 Q. So you've been doing that for about 20 years? 7 A. Yes. 8 Q. Can you tell me over the years if you usually 9 consult with law firms who are defending the nursing 10 homes or if you've ever consulted on behalf of the 11 patient resident? 12 A. It's been about 50/50. 13 Q. And can you tell me on how many occasions you've 14 actually consulted on medical/legal matters? 15 A. Well, I don't keep tabs, you know, I don't count 16 them. Over -- in a year's time would it be helpful 17 if I told you in a year's time? 18 Q. Sure, if you can give me an average yearly number of 19 cases. 20 A. Maybe eight or ten in a year. 21 Q. And that would be consistent for 20 years? 22 A. Well, while I was in school I didn't hardly do any, 23 and while I was in Tennessee the whole time I was 24 there I only did one or two. 25 Q. So would it be more or less than a hundred cases 30 1 you've reviewed over the last, and we're talking 2 about, 20 years? 3 A. I'd say that would be a round number, uh-huh. 4 Q. Around a hundred or more or less? 5 A. I'd say that, since I only did one or two in 6 Tennessee. Oh, and when I was in Indiana going to 7 school, I only did one that I can remember of. 8 Q. So about a hundred -- I just want to make sure I 9 understood your answer. About a hundred would be an 10 accurate estimate? 11 A. Yes. 12 Q. And obviously when you've been asked to consult, has 13 it been from a nursing perspective? 14 A. Yes. 15 Q. Have you been asked to look at cases not only 16 regarding care that's provided in a nursing home 17 setting but also in a hospital setting? 18 A. Yes. 19 Q. Have you found that it's been more times that you're 20 asked to consult with regard to nursing homes as 21 opposed to hospitals? 22 A. Yes. 23 Q. And you have consulted with Mr. Vergon on at least 24 one prior occasion? 25 A. Yes, one other case. 31 1 Q. And how many years ago was that? 2 A. Two or three. 3 Q. And do you remember what nursing home that was and 4 what the issues were in that case? 5 A. It was the Corinthian Nursing Home, and to be 6 truthful, I don't remember what the issue was. 7 Q. Have you ever consulted on a case before in a 8 medical/legal setting where there was an issue as to 9 how the nursing staff or the nursing home in whole 10 dealt with the interaction with their attending 11 physicians and medical director? 12 A. I don't ever remember any where that was a specific 13 issue, but, you know, nurses always have to deal 14 with the medical director. 15 Q. Absolutely. But has it ever been an issue, have you 16 ever consulted on a case where there was a question 17 as to how a nurse goes about -- what the appeal 18 process may be if a nurse has a question about the 19 way a doctor is providing medical care to a 20 patient? 21 A. No, I don't recall a case like that. 22 Q. Okay. Do you understand that's one of the issues in 23 this case? 24 A. Yes. 25 Q. I should ask you if this curriculum vitae of yours 32 1 that we received, if this is current and accurate? 2 A. Yes. 3 Q. And I also noted that you do have several 4 publications listed. Are any of these publications 5 dealing with the issues that we may be dealing with 6 in this case? 7 A. No. 8 Q. Can you tell me the names of some of the law firms 9 or the lawyers that you've actually consulted with 10 in Ohio? 11 A. Yeah. In Akron, the law firm of Scanlon & 12 Gerringer, and also Andress -- 13 Q. Oh, Roetzel & Andress? 14 A. Roetzel and Andress, and also Burroughs. 15 Q. Buckingham? 16 A. Buckingham, Doolittle and Burroughs. 17 Q. They have nicer offices than me. 18 A. And I don't think I've worked with any attorneys in 19 Cleveland. 20 Q. Well, Mr. Vergon? 21 A. Yeah, except him. In Dayton, oh, boy, I'm trying to 22 think of the name of that law firm. Well, in 23 Springfield, which is right outside of Dayton, his 24 name is Chris Cornyn, C-O-R-N-Y-N. In Indianapolis 25 there's a Mr. Harper and Mr. Hanson, they work 33 1 together in the same office, Hanson & Harper. Those 2 are the ones I can think of right now. 3 Q. I may have already covered this, but I want to make 4 sure it's clear. You've never consulted with the 5 Laurel Lake Retirement Community or the Crown 6 Center? 7 A. No, I've never been there since open house. 8 Q. Okay. Other than speaking with Mr. Vergon, have you 9 had any discussions with anyone else about this 10 case? 11 A. No. 12 Q. You don't know any of the parties? 13 A. No. 14 Q. You mentioned some doctors' names, reports you 15 looked at, you looked at Dr. Guiton and some other 16 doctors. Having been in the Akron area, do you know 17 any of these doctors? 18 A. No, I don't. 19 Q. You told us that I think it was back in the late 20 '60s you were involved working with the Department 21 of Health and actually involved in surveying on 22 behalf of Medicare and Medicaid, correct? 23 A. Yes. 24 Q. When you did that, you probably were familiar with 25 some of the regulations that existed under the Ohio 34 1 Administrative Code that governed the conduct of 2 nursing homes? 3 A. Yes. 4 Q. As we sit here today, are you familiar -- well, 5 strike that. 6 You don't have any legal training? 7 A. No. 8 Q. You have a lot of training, but you have not been 9 trained as a lawyer or have any legal training, do 10 you? 11 A. No. 12 Q. Okay. I just wanted to make sure. As we sit here 13 today, are you familiar with, let's say, the 14 administrative regulations which govern the conduct 15 of nursing homes like the defendant in this case? 16 A. Yes. I have a copy, not with me. 17 Q. Are you familiar with some of the statutes in Ohio, 18 like Ohio Revised Code Section 3721 which governs 19 the conduct of nursing homes and the 20 responsibilities they have to the residents like Bob 21 McGarvey? 22 A. Yes. 23 Q. Are you familiar then -- you understand then that 24 that statute, like Statute 3721, that statute 25 mandates -- 35 1 A. Now, I need to tell you, I don't remember them by 2 number. 3 Q. Okay. Are you familiar with -- 4 A. But I'm familiar with the nursing home regs as well 5 as the federal regs that regulate Medicare and 6 Medicaid. 7 Q. You understand there's state regulations and federal 8 regulations? 9 A. Yes, and there are regulations for licensing as well 10 as Medicaid and Medicare. 11 Q. Did you bring some of the regulations with you, 12 actually? 13 A. No. 14 Q. You did say you didn't have them with you, I'm 15 sorry. Then you're aware that there are some 16 statutes, although you don't remember the numbers, 17 that mandate that the nursing home is responsible 18 for providing adequate medical care to their 19 residents? 20 A. The nursing home itself doesn't provide the medical 21 care, the patient employs a physician who then 22 provides care to the patient. 23 Q. So if there is a statute which mandates that a 24 nursing home provide appropriate and adequate 25 medical treatment to its residents, you're not 36 1 familiar with any such statute? 2 A. No. The way the regulations are, the patient must 3 have a physician. I mean, that's the regulation. 4 They must have a physician, but the physician is 5 employed by the resident, not by the nursing home. 6 Q. Okay. 7 A. And they get a bill, the resident gets a bill from 8 the doctor. The doctor doesn't send his bill to the 9 nursing home, he sends it to the resident or their 10 designated relative or guardian. 11 Q. So you understand there are regulations that talk 12 about if a patient presents to the nursing home and 13 that patient doesn't have a doctor to provide care 14 to them in the nursing home, then the nursing home 15 has to provide them with a doctor? 16 A. Yes, that's right. 17 Q. And actually that's what happened here with Bob 18 McGarvey, right; he came to this nursing home and 19 needed a doctor to care for him in the nursing home 20 setting? 21 A. I know that he needed one, I don't know how he got 22 one. 23 Q. Okay. 24 A. But I know that everyone who gets admitted must have 25 one and I knew that he had Dr. Marquart, but I don't 37 1 know how he got Dr. Marquart. 2 Q. So the circumstances under which the nursing home 3 provided Dr. Marquart or how this patient got Dr. 4 Marquart, you're not familiar with what happened? 5 A. No, it's not in the record. 6 Q. So, and I'm asking you, if there is a statute which 7 mandates that a nursing home be responsible for 8 providing appropriate medical care, I'm not talking 9 about regulations, if there's a statute that 10 mandates that of the nursing home, you're not 11 familiar or aware of any such statute? 12 MR. VERGON: Let me put an objection 13 here. Ellen, I don't have the statute in front 14 of me, I can't remember what it actually says 15 word for word, Ms. Kick obviously doesn't 16 either. 17 MS. HIRSHMAN: I want to understand if 18 she's aware of anything in that regard. 19 A. No, nursing homes do not provide the medical care. 20 The patient employs or contracts with a physician. 21 A nursing home does not contract to provide medical 22 care to each one, but the patient must have a 23 physician, otherwise the nursing home cannot provide 24 care to them. 25 Q. And if there's a statute which mandates that a 38 1 nursing home provide appropriate medical care 2 consistent with the program for which the resident 3 contracts, you're not familiar with any such 4 statute? 5 A. No. 6 Q. What is your understanding as to the services for 7 which Bob McGarvey contracted with the defendant? 8 A. With the nursing home? 9 Q. Yes, ma'am. 10 A. He contracted for skilled care. 11 Q. So he contracted to receive skilled nursing care in 12 their skilled nursing facility, which we know as 13 being the Crown Center? 14 A. Yes. 15 Q. Bob McGarvey had a right to -- 16 A. Excuse me, is there water? 17 Q. Absolutely. Why don't you go ahead and I'll wait 18 until you get a chance to get some. 19 - - - - 20 (Thereupon, a discussion was had off 21 the record.) 22 - - - - 23 Q. Would you agree with me that Bob McGarvey had a 24 right to expect and to obtain appropriate medical 25 care and treatment from the Crown Center? 39 1 MR. VERGON: Objection. She's already 2 said that the Crown Center doesn't provide the 3 medical. 4 A. Not from Crown Center, from Dr. Marquart. 5 Q. Okay. So he had a right to expect and obtain 6 appropriate medical care and treatment while he was 7 at the Crown Center? 8 A. Yes. 9 Q. But your position is that the nursing home itself as 10 an entity doesn't have the responsibility to make 11 sure that that medical care is appropriate? 12 A. Oh, they have a responsibility to see that he has a 13 physician, otherwise they don't admit them. They 14 cannot admit someone who does not have a contract 15 with a physician who will provide them with medical 16 care that that person needs. 17 Q. And they made sure they did that in this case 18 because Dr. Marquart -- 19 A. Yes. 20 Q. -- became his doctor, right? 21 A. Yes. 22 Q. And Dr. Marquart is also the Medical Director at 23 this facility, correct? 24 A. Yes. 25 Q. And just so we're clear, as a nurse you're not going 40 1 to be rendering opinions in this case as to whether 2 or not the medical care was appropriate or not, are 3 you? 4 A. No, I wouldn't attempt it. 5 Q. You're not going to be having any opinions about 6 medical care, whether it was at the nursing home or 7 back at Akron General? 8 A. Right. 9 Q. Okay. Were you aware that part of the services that 10 Bob McGarvey contracted to receive at the Crown 11 Center included an individualized medical care plan 12 to meet his individual needs? 13 A. I'm not certain about an individual medical care 14 plan. I haven't seen an individual medical care 15 plan. 16 Q. I know you read depositions, and I believe there 17 were a lot of exhibits that were marked at some of 18 these depositions. Did you see the actual brochure 19 from the Crown Center which was marked as Exhibit 2 20 at Nurse Yeakley's deposition? 21 A. No. 22 Q. I'm going to hand this to you and give you a moment 23 just to look at the front of it so you can see what 24 that is. 25 A. Yes, Crown Center services and amenities. 41 1 Q. Maybe Mr. Vergon, he's got -- 2 MR. VERGON: I've got the original. 3 Q. I'd like one of those originals, they're nice and 4 pink. 5 I don't have any numbering on this, so if you 6 could find the same page, then you can follow along 7 with me, that would be great. 8 MS. HIRSHMAN: Can you get me an 9 original like that? 10 MR. VERGON: Maybe. 11 MS. HIRSHMAN: Do they cost money? 12 Thank you. 13 MR. FRANEY: Everything costs money, 14 Ellen. 15 Q. We're on a page where it says Crown Center services 16 and amenities, correct? 17 A. Yes. 18 Q. It says here individualized health care plan. 19 Health care services are organized and provided 20 through a plan of care individually developed for 21 each resident. The plan combines the efforts of the 22 attending physician with nursing and other 23 disciplines, such as pharmacy, physical therapy, 24 dietetics, social services and activities. 25 A. That's a health care plan and you asked me about a 42 1 medical care plan. And a medical care plan is 2 different from a health care plan. 3 Q. Well, they promise -- so he did contract to receive 4 an individualized health care plan, correct? 5 A. Yes. 6 Q. And in this brochure, part of the agreement appears 7 that they will combine the efforts of the attending 8 physician with these other specialists in the 9 nursing home, correct? 10 A. Yes, that's by law. 11 Q. And they also -- Bob McGarvey contracted to -- 12 strike that. 13 The nursing home also had a responsibility to 14 make sure that the Medical Director oversaw the 15 medical and nursing care that he received when he 16 was at the Crown Center, correct? 17 A. Yes. 18 Q. Because we know in this brochure the next section 19 says medical care and therapies. You can read along 20 with me. The Crown Center's Medical Director 21 oversees all our medical and nursing care. Then it 22 says more, but did I read that correctly? 23 A. Yes. 24 Q. So they did promise and Bob McGarvey had a right to 25 expect that the Crown Center's Medical Director 43 1 would oversee the medical care and nursing care that 2 any resident would receive, correct? 3 MR. VERGON: Objection. It doesn't say 4 that. 5 Q. Do you agree with that? 6 A. Well, it says that the Crown Center's Medical 7 Director will oversee all of the medical and nursing 8 care. 9 Q. Okay. So Bob McGarvey had a right to expect that 10 that would happen? 11 MR. VERGON: Wait a minute. Let me 12 object here because it doesn't say Bob McGarvey 13 in here anywhere. It says the Crown Center's 14 Medical Director oversees our medical and 15 nursing care. It doesn't refer to any 16 individual patients. 17 Q. Well, let me ask you this, since you're the expert 18 that the Crown Center hired. I'll ask you, do you 19 think, based on what you read here, that Bob 20 McGarvey had a right to expect that the Crown 21 Center's Medical Director would oversee the medical 22 care and nursing care that he received? 23 A. I don't know that he would actually -- that the 24 Medical Director actually oversees the medical care 25 of each individual patient. What the Medical 44 1 Director in fact does is he reviews the medical 2 policies to determine that the policies that will be 3 used in that facility are adequate, provide safe 4 care to residents, then each physician who works in 5 the facility follows those policies. And the 6 Medical Director would rarely see another 7 physician's patient. I think about the only time 8 they do that is if someone goes on vacation and they 9 call up and say will you have the Medical Director 10 look at my patient while I'm gone for two weeks or 11 something. 12 Q. Or they may oversee the care being provided by 13 another attending at the nursing home if a nurse has 14 a question about the care being provided and she 15 goes over that doctor's head and goes to the Medical 16 Director to deal with a need? 17 A. Yes, that could happen. 18 Q. So you don't interpret this as saying Bob McGarvey 19 had a right to expect that the Medical Director 20 would oversee the medical care he received? 21 A. That's right. The Medical Director is looking at 22 the overall picture of how medicine is practiced in 23 that facility and he does that by way of policies. 24 Q. The nursing home, Crown Center, also promised, in 25 essence, through the brochure, to make sure that 45 1 each resident was provided with the finest care and 2 personal attention available; didn't they? 3 MR. VERGON: Is that in there 4 someplace, Ellen? 5 A. It says they have on-site services, including 6 physical, occupational therapy, speech pathology, 7 audiology, podiatry, dental care and optometry. 8 Q. Well, I'll read this and tell me if I've read this 9 right. Experienced licensed staff members provide 10 residents with the finest care and personal 11 attention available. 12 A. Experienced. 13 Q. Did I read that correctly? 14 A. Yes. 15 Q. And staff members would include the nursing staff, 16 right? 17 A. Yes, and dietary staff. 18 Q. Right. And therapy, any type of therapy, right? 19 A. Uh-huh. 20 Q. You have to answer out loud. 21 A. Yes, that would include that. 22 Q. So Bob McGarvey did have the right to expect that he 23 would receive care from experienced staff members 24 and receive the finest care and personal attention 25 available, correct? 46 1 A. Yes. 2 Q. And I take it from reading your report you believe 3 that all these needs were met appropriately when Bob 4 McGarvey -- 5 A. Yes. 6 Q. -- was a resident? 7 A. Yes. 8 Q. You just told us a little while ago that the role of 9 the Medical Director is to oversee medical policies 10 and procedures in the nursing home? 11 A. Yes, and they meet with the staff once weekly. 12 Scratch that. Once monthly. 13 Q. What is your -- 14 A. In -- 15 Q. And I'm sorry, did you finish your answer? 16 A. In an interdisciplinary meeting where items or 17 problems or anything that someone wants to bring up 18 about care being provided in the facility is hashed 19 out in this interdisciplinary meeting. 20 Q. What is your understanding as to when this monthly 21 meeting is conducted at the Crown Center? 22 A. When it is? I think someone said it's on 23 Wednesdays. 24 Q. And what's your understanding as to who attends 25 these meetings? 47 1 A. The people who usually attend are the physician, the 2 Director of Nursing, the dietician, the head of 3 therapies, like physical therapy, occupational 4 therapy, and speech therapy, and the social worker. 5 Q. Is that routine in every nursing home that you've 6 seen, based on your knowledge? 7 A. Yes, because if it's a Medicare and -- or Medicare 8 recipient, they must do this. 9 Q. And what is your understanding as to how Dr. 10 Marquart actually gets involved in making policies 11 at this skilled nursing facility, the Crown Center? 12 A. I didn't read any of the minutes of these 13 interdisciplinary meetings, but my understanding is 14 that he would attend the meeting and contribute in 15 whatever way medicine would be involved, make 16 suggestions and vote on changing policies or 17 initiating new policies. 18 Q. In your experience -- well, strike that. 19 You read Dr. Marquart's deposition, correct? 20 A. Yes. 21 Q. My recollection from reading his deposition was that 22 he's not really proactive in developing policies at 23 the nursing home, instead if an issue is brought to 24 his attention and he's asked to become involved, by 25 whoever, the Director of Nursing or whatever, then 48 1 he will get involved in establishing policy. Is 2 that your understanding as well? 3 A. That's correct, because the way nursing homes 4 operate when a change of ownership occurs or when a 5 facility is newly opened the state comes in and does 6 an assessment of the structure, the structure 7 includes policies. Okay, once those policies have 8 been approved, they're rarely redeveloped, they're 9 amended instead of redeveloped. So perhaps he means 10 he's not developing policies, he may be 11 participating in the amendment of the policies that 12 have already been approved. 13 Q. Well, my understanding is that he doesn't really -- 14 he doesn't really go out of his way to look for 15 issues which need to be addressed maybe in a policy, 16 but instead if something is brought to his attention 17 and he's asked to get involved, then he will get 18 involved. Do you understand what I'm saying? 19 A. Yes, I understand. 20 Q. And is that your understanding as well? 21 A. I don't remember reading that part, but I can say 22 that's the way most nursing homes operate. 23 Q. And you didn't really look at the policy and 24 procedure manual for the Crown Center or the Laurel 25 Lake Retirement Community at all, did you? 49 1 A. No, I did not. 2 Q. So do you know one way or the other from 3 reviewing -- well, strike that. 4 You don't know from your own personal knowledge 5 one way or the other whether or not they have 6 policies and procedures that would have dealt with 7 the issue that Nurse Yeakley and Nurse Schug should 8 have dealt with back in January of '98 when treating 9 this patient, Bob McGarvey? 10 A. I think that I know. 11 Q. Okay. And what's the basis for your knowledge? 12 A. The policy of the Ohio Department of Health in the 13 review of nursing home facilities is that the 14 structure of the facility, which includes policies 15 and procedures, are reviewed when a facility is 16 newly opened or when it changes ownership or when it 17 makes big changes in the way the place is going to 18 be operated, or if the Ohio Department of Health 19 comes in and finds glaring problems they will then 20 review these policies again, but if they don't find 21 any glaring problems they don't review these 22 policies during their annual visit to the facility. 23 So since they didn't review the policies at their 24 last visit, one would have to assume that they found 25 that they were okay. 50 1 Q. So just that I'm clear, although you haven't looked 2 at the policies and procedures, it's your opinion 3 that their policies and procedures were adequate to 4 deal with this patient, Bob McGarvey's situation, at 5 the nursing home based on the fact that, number one, 6 the Ohio Department of Health had done an 7 inspection, they had at some point previously 8 approved them, and to your knowledge after initially 9 approving them they've never been questioned on any 10 other subsequent visits? 11 A. That's correct. 12 Q. So you're basing your opinion based on the conduct 13 of what's happened with the Ohio Department of 14 Health inspectors? 15 A. Yes. 16 Q. But you haven't conducted any independent review of 17 those policies and procedures and applied your 18 knowledge of those policies and procedures to what 19 happened to this patient in this case? 20 A. No, I have not reviewed the policies. 21 MR. VERGON: Let me interrupt. Ellen, 22 your question may be not complete. 23 Didn't you tell me that in your 24 experience no nursing homes have a policy or 25 procedure to deal with the situation that we 51 1 have in this case? 2 MS. HIRSHMAN: Well, we'll get into the 3 specifics, I just want to -- 4 MR. VERGON: You asked her what was the 5 basis of her opinion and she said lack of 6 whatever. She has another basis, is all I'm 7 saying. 8 MS. HIRSHMAN: Okay. Well, we're going 9 to go into all this a little bit more. Let's 10 talk -- I just turned the air so it would be a 11 little cooler in here. Is everybody okay right 12 now? We'll keep going. 13 MR. VERGON: Yeah. 14 - - - - 15 (Thereupon, a discussion was had off 16 the record.) 17 - - - - 18 Q. Let's talk about Mr. McGarvey's January, '98 19 admission, okay. When Bob McGarvey was transferred 20 from Akron General Medical Center, and I may refer 21 to it as AGMC at times, or to the Crown Center on 22 January 20th, 1998, a transfer order sheet came with 23 the patient, correct? 24 A. Yes. 25 Q. And in fact, that's required by law, isn't it? 52 1 A. Yes. 2 Q. So that transfer order that came from AGMC to Laurel 3 Lake, that was not an uncommon occurrence when Bob 4 McGarvey went there on January 20th? 5 A. No, it's a very common occurrence. 6 Q. And the purpose or the reason that it's required by 7 law is that you have to give some guidance to the 8 nursing and medical staff over at the nursing home 9 as to what this patient's needs are? 10 A. Yes. 11 Q. And that happened in this case, correct? 12 A. Yes. 13 Q. You've reviewed that transfer order sheet? 14 A. Yes. 15 Q. And you read Nurse Yeakley's deposition, correct? 16 A. Yes. 17 Q. And she did use that transfer order sheet for 18 purposes of writing the initial orders for this 19 patient, Bob McGarvey? 20 A. Yes. 21 MR. HIRSHMAN: We're talking about the 22 first visit still? 23 MR. VERGON: The second visit. 24 MS. HIRSHMAN: We're talking January of 25 '98. 53 1 Q. But in fact, Nurse Yeakley actually wrote the 2 admission orders for Bob McGarvey at the time of 3 both admissions, the one in December of '97 and then 4 again on January 20th, '98, didn't she? Do you 5 remember that? 6 A. I would have to look at the first admission. 7 Q. Okay. Well, why don't you just assume what I'm 8 saying is correct. 9 A. Yes. 10 Q. And my understanding is that that was actually one 11 of her major responsibilities at the Crown Center, 12 was to actually be the primary person responsible 13 for taking patients on transfer from the hospital 14 and admitting them to the Crown Center. Is that 15 your understanding as well? 16 A. She didn't do the actual admission. The Social 17 Service Department was responsible for admitting 18 him. She was responsible for the clinical part of 19 it. 20 Q. She was responsible for looking at the patient's 21 order sheet that came on transfer and for writing 22 the initial orders at the time of admission, 23 correct? 24 A. Yes. 25 Q. My understanding was that they had it set up there 54 1 at the Crown Center so that was primarily her job, 2 and most of the time Kathleen Yeakley, at least when 3 Mr. McGarvey was there, was the person that was 4 responsible for writing admission orders for the 5 admitting physicians? 6 A. Yes. 7 Q. And fortunately, actually, she recalled when we took 8 her deposition, she recalled this patient and his 9 admission in January of '98, didn't she? 10 A. Yes. 11 Q. And she recalls that when she admitted the patient a 12 second time, on January 20th, that he had been there 13 a month earlier, in December? 14 A. Yes. 15 Q. And not only did she remember that he had been there 16 just one month earlier, but she remembered that when 17 he was admitted one month earlier he had been on 18 Coumadin at that time as well, correct? 19 A. Yes. 20 Q. She knew that he had been on Coumadin a month 21 earlier and she remembered that he had been on one 22 fifth the dose that he was now being admitted on? 23 A. Yes. 24 Q. Because in December of '97 she remembered he had 25 only been on one milligram of Coumadin, correct? 55 1 A. Yes. 2 Q. And now here in January of '98 he's coming back from 3 the hospital on five milligrams, correct? 4 A. Yes. 5 Q. And she also remembered when she was writing up 6 these orders on her worksheet that one month earlier 7 when he was on one fifth the dosage there was an 8 order to have a PT drawn in a couple days, correct? 9 A. Yes. 10 Q. And now here, in January of '98, she was cognizant 11 of the fact that he's on five times the dose, but 12 there's not an order for a PT, correct? 13 A. Yes. 14 Q. And she was concerned about that, wasn't she? 15 A. Yes. 16 Q. Now, you would expect her to be concerned about 17 that, wouldn't you? 18 A. Yes. 19 Q. You would expect any nurse at the Crown Center or in 20 a hospital setting to be concerned about a patient 21 who presented like Bob McGarvey did on January 20th, 22 correct? 23 A. Yes. 24 Q. And that's because you would expect a nurse in that 25 situation to know what Coumadin is? 56 1 A. Yes. 2 Q. Why would you expect them to be concerned? 3 A. Because every nursing and pharmacology textbook that 4 I've ever read and any course that I have ever 5 taught and any course that any other professor in 6 nursing ever taught that I know of insists that the 7 nurses know the drugs that a patient is ordered to 8 take, and they need to know all of the side effects 9 and all of the other treatments or lab or anything 10 that is necessary to do for that patient because 11 that patient is receiving this drug. And every 12 nurse I know knows that a patient who receives 13 Coumadin, whether he's in a nursing home, a 14 hospital, or in his own home needs to have either a 15 pro time or an INR or both. 16 Q. And why is it important to have a PT and INR or 17 both? 18 A. Because when a patient receives Coumadin, it has an 19 effect in the body that could cause bleeding to 20 occur. Lay people call it a blood thinner. It 21 really isn't a blood thinner, but it's easy to 22 explain it like that. 23 Coumadin is a cumulative drug, that's why the 24 PT or the INR has to be done. You don't want a 25 person to bleed internally. If they're going to 57 1 bleed, many patients bleed internally where it can't 2 be seen. So this is why a nurse will look at the 3 urine, look at the stool of a patient who receives 4 Coumadin, look at his toothbrush or what he spits 5 out of his mouth when he brushes his teeth. 6 Q. And blood coming out of the mouth is called 7 hemoptysis, when you cough it up? 8 A. When you cough it up it is, but if it's just coming 9 from the gums you don't. 10 Q. It has to be coughed up, that's hemoptysis? 11 A. Uh-huh, or sometimes people just by touching, 12 hitting their hand against a table can get a blood 13 blister, so to speak. So the reason you do the pro 14 time, I think that's what you asked me, was because 15 you want to be cognizant of this person's status as 16 far as bleeding is concerned. You don't want him to 17 be bleeding. 18 So in order to assure yourself that he's not 19 going to bleed, you get a pro time or an INR to give 20 yourself some self confidence that this person is 21 not going to bleed. 22 Q. How does a PT or an INR assist in the management of 23 a patient on Coumadin? 24 A. Well, if you get the PT or the INR, if it falls 25 within the normal limits, and every lab sheet I've 58 1 ever read in the last 10 or 15 years tells right on 2 the sheet what the normal range is and most of them 3 when they're reported put an asterisk next to 4 something that's out of range, or some of them even 5 have two columns, you know, one column says out of 6 range, and they say that. 7 So if the pro time or the INR falls within 8 normal range, then you can feel pretty good about 9 the dose that the patient is getting. If it falls 10 out of range, either too low or too high, then 11 that's a red flag to the nurse, call the doctor and 12 tell the doctor this is out of range. 13 Now, the doctor always gets a copy of the lab 14 work, it's faxed to his office. But if a nurse gets 15 one and the patient is out of range on anything, you 16 know, pro time or some other thing, they immediately 17 call the doctor just in case, you know, because in 18 the doctor's office he could be getting faxes from 19 several nursing homes or hospitals, and so they want 20 to call to his attention those that are out of 21 range. 22 Q. From a nursing perspective, is it your understanding 23 that PTs and INRs are to be monitored while a 24 patient is on Coumadin to help determine whether or 25 not the dosage of the Coumadin is an appropriate 59 1 dosage? 2 A. Yes. 3 MR. LYON: What was her answer? I'm 4 sorry. 5 THE WITNESS: Yes. 6 MR. VERGON: Yes. 7 MS. HIRSHMAN: Yes. 8 MR. LYON: Thank you. 9 Q. Just give me a moment. And the PT and INR, those 10 are -- well, the PT is a lab test and the INR is a 11 mathematical calculation, I understand, based on the 12 PT, which are conducted pursuant to a doctor's 13 order, it's your understanding? 14 A. Yes. 15 Q. Your understanding is you can look at those, even 16 from a nursing perspective, and see whether or not 17 those are elevating or whether or not they're 18 leveling off to determine whether or not a dosage is 19 adequate? 20 A. That's right. 21 Q. Or not enough or too much? 22 A. That's right, the nurse monitors it and she notifies 23 the doctor if it's too low or too high, because it 24 could cause a problem in either direction. If it's 25 too low it can cause problems, if it's too high it 60 1 can cause problems. 2 Q. And obviously if it's too high, this patient is at 3 an increased risk of bleeding if their PTs are 4 elevated? 5 A. Yes. 6 Q. Now, if a nurse looks at PTs and INRs that over 7 several days is steadily increasing and has not 8 leveled off, that should be of some concern? 9 MR. LYON: I'm going to object to that 10 question. It's so hypothetical, but go ahead. 11 A. If it's rising sometimes you want it to be rising 12 because after the patient has been off a dose 13 because he went to the dentist or because he had 14 surgery or a broken leg or something, he's off the 15 Coumadin for a while. Now, you're going to start 16 him up again, so you start him with a little higher 17 dose because you want to get him up, so you expect 18 it when you put him back on after his time period 19 off, you want it to climb again. 20 And if it's not climbing, you may want to tell 21 the doctor that too, because the doctor is expecting 22 it to climb now. And then when it reaches its 23 plateau, you know, when it starts to level off and 24 be in the normal range, then you're happy. If it 25 doesn't do that, then you're going to tell the 61 1 doctor. 2 Q. So if you see some increases over several days in 3 the PTs and INRs, that's okay, as long as it's 4 within a therapeutic range. It's when it keeps 5 rising out of a therapeutic range you're concerned? 6 A. Yes. 7 Q. Or if it's going down below? 8 A. Yeah, if it's headed in the other direction you 9 could be concerned. 10 Q. And so one bit of information that's important from 11 a nursing perspective is to know when the patient 12 was started back up on the Coumadin? 13 A. Yes, you want to know that. 14 Q. Did you review the medical records that accompanied 15 the patient at the time of transfer on January 20th, 16 1998? 17 A. I looked at the transfer form, and let me check 18 this. I think along with the Crown Center Laurel 19 Lake records, there may have been a few pages from 20 Akron General. 21 Q. Right. 22 A. So -- 23 Q. Do you want to take a moment to see if that is 24 accurate? I will tell you that some records did 25 come over there. I think there's a question as 62 1 to -- 2 MR. VERGON: What? 3 Q. -- the timing of when they were available. That's 4 for another day, but I think that everyone has seen 5 that there are some records from Akron General 6 Medical Center that either accompanied the patient 7 or came right after the patient on January 20th, 8 1998. 9 A. Oh. I can tell you now I don't know the date of 10 arrival of any records. 11 Q. Okay. 12 A. I only know that -- I assumed, I guess I should say 13 this, that the transfer record came with the patient 14 because that's the policy that hospitals usually 15 have, you know, that you send the transfer record 16 with the patient. 17 Q. Right. 18 A. So I'm only assuming that the transfer record came 19 with the patient. I'm not assuming that anything 20 else did. 21 Q. Okay. And in fact, I think that would be consistent 22 with what Nurse Yeakley says usually happens. 23 A. Yes. 24 Q. And in any event, do you remember looking through 25 those records from AGMC that came over in January? 63 1 A. Yes, but you would have to ask me about a specific 2 one. 3 Q. The reason for those records coming over is to give 4 more information about this patient's most recent 5 hospitalization, both to the nursing staff and to 6 the physician, correct? 7 A. Yes. 8 Q. Would it be -- strike that. 9 Now, I'm going to get back to Nurse Yeakley. 10 You talked about the situation that she was 11 confronted with when she wrote down the admission 12 orders for this patient on January 20th. What's 13 your understanding as to what Nurse Yeakley did once 14 she had a concern as to whether or not PTs should be 15 ordered for this patient at the time of admission? 16 A. My understanding is that she read the transfer form 17 and she was transcribing the orders onto a physician 18 order sheet, which she would then fax to Dr. 19 Marquart to get his signature, because once the 20 resident or the patient is in Crown Center, then 21 Crown Center is responsible for him and the doctor 22 at Crown Center is responsible for him, so she needs 23 to get approval from Dr. Marquart for these orders 24 that came over from Akron General. 25 So she faxed them to him and also noted that 64 1 there was no pro time ordered, even though Coumadin 2 had been ordered. So she asked Dr. Marquart would 3 you like to have a pro time ordered on this patient, 4 and he said no. 5 Q. So -- 6 A. And he said I'll be in tomorrow, and then he came in 7 the following day. 8 Q. Do you recall that Nurse Yeakley, when she received 9 the response back from Dr. Marquart, which I believe 10 according to the deposition, her deposition, was 11 written form, she didn't talk to him verbally. Is 12 that your recollection as well? 13 A. I don't remember if the response was written or 14 oral. 15 Q. In any event, once Nurse Yeakley got a response 16 saying Dr. Marquart did not want to order PTs on Bob 17 McGarvey, she was still concerned because she had 18 failed to get an order for a PT, even though he was 19 on Coumadin. Do you recall that as well? 20 A. Yes. 21 Q. But in her mind at that point in time she didn't do 22 anything further because she knew he was going to 23 come in the next day, because it was a Tuesday, I 24 think the 20th of January, and she knew he'd be in 25 the next day, Wednesday, and he'd personally see the 65 1 patient. Do you recall that, her saying that? 2 A. Yes. 3 Q. But between Nurse Yeakley asking Dr. Marquart for a 4 PT and her coming into work the next day, 5 something -- there were more inquiries and requests 6 for this patient to have PTs and INRs monitored, 7 weren't there? 8 A. Yes. 9 Q. We know that at some point later in the day the 10 pharmacist for the Crown Center faxed a request to 11 the nursing home asking -- suggesting that an INR be 12 checked 24 hours after the start of Ancef and 24 13 hours after the completion of the administration of 14 Ancef. Is that your recollection as well? 15 A. I thought it was 48, but nevertheless -- 16 Q. I think you're right. Okay. But in any event, the 17 pharmacist was recommending that INRs be checked on 18 two occasions on this patient, correct? 19 A. Yes. 20 Q. Did you actually see that fax -- 21 A. No. 22 Q. -- which was marked at one of the -- I think it was 23 Dr. Marquart's deposition. 24 A. No, I did not see the fax. 25 Q. And do you remember -- well, I'll tell you -- well, 66 1 strike that. 2 In any event, that recommendation was made of 3 the nursing home and Dr. Marquart through a fax from 4 the pharmacist, correct? 5 A. Yes. 6 Q. And then there was a Nurse Schug who took that 7 information and placed a phone call to Dr. Marquart 8 at 6:30 in the evening asking him with regard to 9 ordering an INR in this patient, correct? 10 A. Yes. 11 Q. So she called him at 6:30 in the evening asking him 12 to order an INR, correct? 13 A. Yes. 14 Q. He didn't respond to that request at that time, did 15 he? 16 A. No. 17 Q. She called him back at 8:30 and again asked him 18 about ordering INRs as recommended by the 19 pharmacist, didn't she? 20 A. Yes. 21 Q. And she reflected in her note at 8:30 that evening 22 that, in quotation marks in her note, it said the 23 doctor said, no, I do not. Right? 24 A. Yes. 25 Q. Did you look at that note and how it was written by 67 1 Nurse Schug? 2 A. I looked at it. 3 Q. Okay. Did you notice it was in quotation marks? 4 A. Yes. 5 Q. Did you notice I think it was in all capital 6 letters? 7 A. Yes. 8 Q. Did you interpret the way she wrote that to have any 9 special significance? 10 A. Well, when a nurse does that they usually want to 11 put emphasis on it. 12 Q. Why is that? 13 A. Because the purpose of a clinical record is for 14 communication because usually in a facility there 15 are three groups of nurses who work days, evenings 16 and nights, so you don't always see the same people, 17 so there has to be some means of communication, not 18 only for the nursing staff, but for the medical and 19 the therapies and other people. 20 It's a means of communication so that everyone 21 who cares for this person has the information to 22 know what has transpired when I'm not on duty. I 23 can be assured that I know what transpired on this 24 patient because I can look in the record and it will 25 be there. 68 1 Q. So she wanted to make sure that she wrote down this 2 information because it was important? 3 A. Yes. 4 Q. And she wanted to make sure it was communicated to 5 the next doctor or the next nurse, dietary 6 personnel, any person involved in the care of Mr. 7 McGarvey that saw this note when they looked at the 8 chart? 9 A. Yes. 10 Q. So that they would know that she did ask for an INR, 11 but Dr. Marquart said, no, he did not want to, 12 right? 13 A. Yes. 14 Q. Do you recall the deposition testimony of Nurse 15 Yeakley as to whether or not she was concerned when 16 she came into work the next day and she noted Nurse 17 Schug's note? 18 A. I would have to review that again. I don't recall 19 it at this minute. 20 Q. Well, I'll ask you to accept my characterization. 21 If someone wants to, they can prove me wrong at 22 another point, okay? 23 A. Yes. 24 Q. Nurse Yeakley in her deposition stated that she's 25 not 99 percent sure that she would have -- she saw 69 1 Nurse Schug's note from the note prior when she was 2 in on January 21st, okay? 3 A. Yes. 4 Q. And that knowing that in addition to her being 5 concerned after a refusal to get a PT and knowing 6 now that a pharmacist had recommended checking the 7 INRs and knowing that Nurse Schug had asked Dr. 8 Marquart to order them and he said, no, he didn't 9 want to, she was even more concerned now, okay? 10 A. Yes. 11 Q. And she recalls there being discussion amongst -- 12 more discussion about this issue, okay, I want you 13 to take that as an accurate characterization. 14 A. Yes. 15 Q. Given that situation, what was the process of appeal 16 available to these nurses at the Crown Center in 17 January of 1998 to further investigate and try to 18 obtain a PT or an INR for this patient? 19 A. Well, see, the bit of information that they didn't 20 have is they didn't know if there was any 21 communication between -- they didn't know why Dr. 22 Marquart was not ordering INRs. He may have 23 communicated with someone at General. So they don't 24 know why he isn't ordering PTs, so that's one bit of 25 information that they didn't have. 70 1 Q. So you're saying that since they didn't know one way 2 or the other whether or not he, meaning Dr. 3 Marquart, had communicated with prior treating 4 doctors at AGMC, they didn't need to do anything 5 further with their concerns about the failure to 6 obtain these orders for PTs and INRs? 7 A. Well, they asked him three times and three times he 8 said he didn't want it, so they had done their duty, 9 as far as their duty was concerned. They had asked 10 him three times. He had a right to say how he 11 wanted to treat the patient, and they had no 12 knowledge of whether he talked with anyone at 13 General or not, so he could have had information 14 that they didn't have. So they gave him three 15 opportunities to order the drug or to order the lab 16 work to cover the drug and so they had done what 17 they could do for him. 18 Q. Now, in all the years that you've been a nurse, have 19 you ever been in a situation where you questioned 20 the order or the lack of an order of a physician 21 that you were working with? 22 A. Yes. 23 Q. And have you ever, in your experience as a nurse, 24 either personally or from knowing another nurse's 25 situation known of a situation where a nurse went 71 1 through an appeal process or went over the head of 2 that attending physician because they still weren't 3 comfortable with the order or the failure to order 4 something in particular for a patient? 5 A. Yes. 6 Q. And can you describe any situation for me, give me 7 an example? 8 A. Well, I was involved in a case when I worked in 9 obstetrics. The Ohio Department of Health also 10 regulates that. If your census is low, they allow 11 you to have clean GYN cases, which means no 12 infection. 13 So I had a doctor, when I was the head nurse, 14 bring a patient in with an infection and I -- and he 15 wanted me to change the dressings for her, and I 16 refused because it was not a clean case. So I 17 called the Director of Nursing, she handled it. 18 Q. Was there a policy in place that told you that 19 that's how you would proceed or was that just 20 something you knew as a nurse, it would be 21 reasonable -- 22 A. No, I think nurses always go a step -- one step up. 23 Q. Okay. 24 A. And my step up was the Director of Nursing. 25 Q. So in that situation if you had a question and 72 1 wasn't comfortable with an order that you were 2 receiving from the doctor, you went to your Director 3 of Nursing? 4 A. Yes. 5 Q. Well, in this situation at the Crown Center in 6 January of '98 Nurse Yeakley's testimony has been 7 that she thinks somebody did go to the Director of 8 Nursing. Do you remember her testimony in that 9 regard? 10 A. I'd have to read that again. 11 Q. That's okay. Let's just assume that someone did 12 take this issue up to the Director of Nursing back 13 in January of '98. How would you expect a Director 14 of Nursing in a skilled nursing facility setting, 15 like the Crown Center, to address these concerns of 16 the nurse once brought to her? 17 A. If I were the Director of Nursing I'd talk with the 18 doctor. 19 Q. And what kind of issues would you expect the 20 Director of Nursing, in carrying out her 21 responsibilities in an appropriate fashion, what 22 issues would you expect her to address with the 23 attending, who in this case was Dr. Marquart? 24 A. I guess I would just say to him what the other 25 nurses said. When a patient receives Coumadin, a 73 1 pro time is usually ordered, and when a person 2 receives Ancef and also receives Coumadin at the 3 same time that a pro time is usually done, and that 4 the pharmacy recommended that. And I would again 5 say to him what do you want to do. But that had 6 already been said to him. 7 Q. Well, I understand it had been said to him before, 8 but the whole reason for appealing is to maybe have 9 a little bit more push from someone at a higher 10 level who, in this case you're saying, would be, 11 theoretically, the Director of Nursing? 12 A. Yeah, she would be the highest that you could go 13 to. 14 Q. Are you aware one way or the other whether or not 15 there was an Associate Medical Director at the Crown 16 Center back in January of '98? 17 A. No, I don't know. 18 Q. If there was an Associate Medical Director who was 19 available to deal with needs in the Crown Center, 20 would it have been appropriate for a nurse like 21 Nurse Schug or Nurse Yeakley to take their concerns 22 to the Associate Medical Director? 23 A. It would depend on his job description. Some 24 Associate Medical Directors serve only in the 25 absence, and by absence I mean when the Medical 74 1 Director is on vacation or ill or something like 2 that, so it would depend on the job description. If 3 he's employed only during vacations, then I would 4 say no. But if he was employed 12 months, so to 5 speak, then I'd say yes. 6 Q. Well, the reality is probably the nurses in the 7 trenches, like Nurse Yeakley and Nurse Schug, don't 8 always know the exact definition or the roles that 9 are defined for an Associate Medical Director, do 10 you think? 11 A. Oh, I would think they would know that. 12 Q. Okay. Well, do you remember Nurse Yeakley in her 13 testimony talked about the fact that even though she 14 was once concerned after Dr. Marquart said he didn't 15 want to order a PT, she said if this had been 16 another attending physician, other than Dr. 17 Marquart, she could have gone to the Medical 18 Director and asked for a PT order on this patient; 19 do you remember her testimony in that regard? 20 A. Yes, I do. 21 Q. So she, in essence, told us that if it had been 22 another attending she could have gone to the Medical 23 Director, Dr. Marquart, and gotten a PT order, 24 correct? 25 A. Yes. 75 1 Q. However, with this patient, she couldn't do that 2 because he was both the attending and the Medical 3 Director for this patient, wasn't he? 4 A. Yes. 5 Q. So she felt that she had done all she could on that 6 day because both the attending, in her mind, and the 7 Medical Director had refused to order a PT? 8 A. Yes. 9 Q. I always get a little bit off center here. We had 10 talked about hypothetically if someone had gone to 11 the Director of Nursing and then it would be 12 reasonable for her to go to Dr. Marquart and again 13 address the recommendations that had been made by 14 the pharmacist and if he still didn't want to order 15 the PTs at that point, you say that would be the end 16 of the process, the appeal process, there would be 17 no one else to appeal to? 18 A. Yes. 19 Q. However, again, if Dr. Marquart hadn't been -- if it 20 had been another attending and not Dr. Marquart, 21 part of the appeal process could have included going 22 to the Medical Director, Dr. Marquart? 23 A. Yes. 24 Q. Now, your -- strike that. 25 Do you have an understanding one way or the 76 1 other as to whether or not there were any protocols 2 in place at the Crown Center or Laurel Lake, back 3 when Bob McGarvey was a patient there, that dealt 4 with the frequency of monitoring of PTs and INRs in 5 patients who are on Coumadin? 6 MR. FRANEY: Objection. I think she 7 said she didn't review any protocols. 8 A. No, I didn't see any policies or procedures or 9 protocols. 10 Q. We talked earlier about how protocols and policies 11 are developed or amended in the nursing home 12 setting, and I believe you told me that a Director 13 of Nursing or the nursing administration may see a 14 need for a protocol and then address that with the 15 Medical Director? 16 A. In the interdisciplinary team, it could be a policy 17 that the Director of Nursing would involve the 18 Medical Director. On the other hand, it may not 19 involve him so they bring it up in the team because 20 maybe the nurse doesn't know that her policy is 21 going to affect dietary or going to affect medicine, 22 so they bring it up in the team so that any 23 policy -- in fact, the way the regs read, that it 24 should be brought up in the interdisciplinary team. 25 Q. And when you talk about interdisciplinary team, are 77 1 you talking about the monthly meeting where the 2 Medical Director is present? 3 A. Yes. 4 Q. If a particular physician in the nursing home 5 setting, based on your training and experience and 6 what you know about Coumadin and the management of 7 Coumadin from a nursing perspective, if it's known 8 in the nursing home that a certain physician 9 frequently has patients on Coumadin and only 10 monitors the PTs or INRs on that patient maybe every 11 six months, now don't you think in that, assuming 12 those facts, the nursing home staff may want to 13 review that policy or habit of that physician to 14 determine whether or not that constitutes good 15 medical care? 16 A. See, there are a lot of patients who only get their 17 Coumadin or their pro time done every six months. 18 See, when a person is first put on Coumadin, it's 19 very important to get frequent INRs or pro times. 20 Okay, once you get a person established, you know 21 how his body physiologically and chemically responds 22 to Coumadin and you see that you're on a plateau and 23 it's staying like that, you may not do it. 24 I mean, I've seen lots of patients. See, there 25 are a lot of people at home getting Coumadin that 78 1 only go in twice a year for their checkup. The 2 doctors just tell them watch your urine, watch your 3 toothbrush, watch your bowels, watch all those 4 things. So people, lots of people only get it done 5 every six months. 6 Q. So it's important to know how frequently the patient 7 had been restarted or started on the Coumadin? 8 A. Yes. 9 MR. HIRSHMAN: Recently. 10 Q. And if it had just been recently, within the last 11 three or four days, that tells you, as a nurse, it 12 needs to be monitored more closely right now? 13 A. Yes. 14 Q. Who oversees the conduct of the Medical Director? 15 A. The Medical Director has expertise in medicine, so 16 the administrator cannot -- the administrator 17 oversees him as far as administrative things are at 18 hand. He can tell him you're not coming to the 19 nursing home often enough, you're not putting in 20 enough hours, you're too brusque with the nurses, 21 things like that. But he can't tell him anything 22 about how to practice medicine because this guy -- 23 well, unless the administrator would be a physician, 24 but I don't know of any nursing home administrators 25 who are physicians. 79 1 So he can't tell him how to practice medicine, 2 the nurse can't tell him how to practice medicine 3 because her expertise is in nursing, not in 4 medicine. So when he's employed, you look at his 5 credentials and somehow you assume that he practices 6 medicine the way it ought to be practiced, and if 7 you're hiring him to be the Medical Director I 8 suppose you'd look at his interpersonal skills to 9 see how he interacts with other people and things 10 like that. And the administrator would be 11 responsible for things like that, but not anything 12 dealing with the practice of medicine. 13 Q. So you wouldn't expect anyone to oversee the medical 14 care of the Medical Director? 15 MR. VERGON: The Medical Director 16 doesn't provide medical care. 17 Q. Do you remember reading that there was something 18 that's been called an IDT conference, or an 19 interdisciplinary team conference, for Mr. McGarvey 20 in January of '98? 21 A. Yes, that would have been his care plan conference. 22 Q. Okay, right. And the purpose of that meeting, that 23 IDT conference, was to help individualize the 24 medical care that he received? 25 A. No, not the medical care. 80 1 Q. It helped individualize what? 2 A. It's a health care plan. See, it deals with more 3 than medical care. You know, it deals with nursing 4 care, dietary care, pharmacy care, physical, 5 occupational, speech, all those things. 6 Q. And again, this is part of coordinating with the 7 physicians and all the other ancillary services in 8 the nursing home setting, dietary and so forth? 9 A. Yes. 10 Q. Well, according to the records that conference with 11 all these different disciplines represented took 12 place on January 28th, 1998. Okay? 13 A. Yes. 14 Q. Six people were present, one of whom was Nurse 15 Yeakley and one of whom was Theresa McGarvey. Are 16 you aware of that? 17 A. I think that was said in one of the depositions. 18 Q. And it's in the records as well, but why don't you 19 just assume for purposes of my next question that 20 this IDT conference did take place on January 28th, 21 okay, and Bob McGarvey personally, the resident, 22 personally did not attend, but his wife, Theresa, 23 attended. Okay? 24 A. Yes. 25 Q. Now, by this point in time, on January 28th, we had 81 1 already had all these events where Nurse Yeakley had 2 asked for a PT, where the pharmacist had recommended 3 that they be checked two times, that Nurse Schug had 4 already asked two times and all the time Dr. 5 Marquart said no, right? 6 A. Yes. 7 Q. Do you know whether or not anyone ever brought it to 8 Bob McGarvey's attention or Theresa McGarvey's 9 attention at this IDT conference that Dr. Marquart 10 had been requested on all these occasions to order 11 PTs or INRs but yet had refused? 12 A. No, I don't know if that was mentioned. 13 Q. Do you know if anyone ever told the patient, Bob, or 14 his wife, Theresa, that a pharmacist had recommended 15 that, now given the interplay between Coumadin and 16 Ancef, that it would be a good idea to monitor INRs 17 on two occasions for him? 18 A. No, I don't know that. 19 Q. Doesn't the nursing staff have a responsibility to 20 provide the family with information that's available 21 to them from the chart? 22 A. Sometimes yes and sometimes no. 23 Q. Well, in this situation, don't you think the nursing 24 home, through its nursing staff, had a 25 responsibility to advise either the patient or his 82 1 wife of these facts, the fact that these had been 2 requested and recommended, yet not ordered for him? 3 A. No. Can you image the psychological effect that 4 would have on a patient if you go in there and tell 5 him his doctor isn't up to snuff or whatever? 6 Q. So you don't think they should do that because it 7 might have upset the patient? 8 A. The patient has the right to talk to his physician 9 and ask his physician questions. If nurses went 10 around telling patients their doctors aren't doing 11 right by you, that sounds like insubordination to 12 me. 13 Q. Well, if you don't go to the patient, then should 14 you be going to someone else at least to change the 15 conduct of the physician? And here we're talking 16 about Dr. Marquart. 17 A. Yes, I know, but I don't know what you want to 18 change about him. 19 Q. Trying to get these PT orders. 20 A. But it's like I said before, if I'm the nurse, I 21 don't know what communication he has already had 22 with someone at General. How do I know what they're 23 discussing back and forth? 24 Q. So in that hypothetical, wouldn't you expect the 25 Director of Nursing, since that's the one key 83 1 element it sounds like you think is missing, 2 wouldn't you expect her, if she was asked by the 3 nursing staff, wouldn't you expect in her discussion 4 with Dr. Marquart to say have you talked to anyone 5 at the prior institution? 6 A. Uh-huh, she might say that. 7 Q. And if she found out he hadn't, how would you expect 8 her to deal with such a response in that situation? 9 A. I would say to him tell me why you don't want to 10 give -- order a pro time or an INR. 11 Q. May it have been reasonable for the Director of 12 Nursing to look at the records from AGMC that came 13 over with the patient and if it said in a progress 14 note from January 17th, three days before his 15 admission to Crown Center, if it said in a progress 16 note Coumadin restarted, wouldn't that information 17 tell the nurse and Dr. Marquart that this patient 18 has just recently been restarted on this medication 19 and does have to have these PTs monitored? 20 A. Yes, it would say that. 21 Q. It would tell them that, wouldn't it? 22 A. Yes. 23 Q. Do you know one way or the other whether or not 24 those records contain a progress note that would 25 have told them that it had just been restarted 84 1 around January 17th? 2 A. No, I don't know. 3 Q. Now, one of the ways a nursing home acts is through 4 its staff, including its nurses, correct? 5 A. Yes. 6 Q. Tracey Skinner is one of the nurses that had 7 hands-on care, provided hands-on care for Bob 8 McGarvey, correct? 9 A. Yes. 10 Q. And we know that she had a responsibility to provide 11 the finest care and personal attention available to 12 Bob McGarvey in carrying out her role, correct? 13 A. Yes. 14 Q. Now, a nurse has a responsibility to provide the 15 family with information that is available to them 16 when they're asked, correct? 17 A. Are you talking about in general? There are some 18 things that you would not tell the patient. 19 Q. Well, if they're going to give information, it 20 should be accurate information, correct? 21 A. Yes. 22 Q. Now, as of January 29th, 1998, no PTs had ever been 23 ordered for Bob McGarvey at the Crown Center, had 24 they? 25 A. Correct. 85 1 Q. And neither had any PTs nor INRs ever been checked 2 on him while he was there, had they? 3 A. No, they had not. 4 Q. And in fact, the only time that the blood was 5 scheduled to be drawn for this patient was on 6 January 30th because there had been a CBC ordered 7 and an SMA I think it was a six or twelve? 8 A. Yes. 9 Q. And those aren't tests to check PTs or INRs, are 10 they? 11 A. No. 12 Q. I want to ask you to assume the following facts. 13 Assume that Theresa McGarvey, the resident's wife, 14 approached a nurse one evening at the nursing home 15 and advised her that they were concerned because 16 they didn't think the PTs had been checked or were 17 being checked and that one of the nursing home staff 18 did look at the chart and advised Theresa that the 19 blood was being drawn, not to worry, that blood was 20 being drawn tomorrow, and led her to believe that 21 the PTs were going to be checked. 22 Knowing what you know about this, the facts in 23 this case, assuming that the nurse did tell her 24 that, that would have been inappropriate conduct on 25 behalf of the nurse? 86 1 MR. VERGON: Objection. Can you read 2 the question back? 3 MR. LYON: Can you, please. 4 MR. HIRSHMAN: Why don't you restate 5 the question. 6 Q. Okay. Assume that Theresa McGarvey approached a 7 nurse at the nursing home around January 29th, '98 8 and brought to her attention that they were 9 concerned because they didn't think PTs had been 10 monitored or were being checked on her husband, Bob 11 McGarvey, and that the nurse looked at the chart and 12 told her not to worry, that the blood was being 13 drawn the next day and led her to believe that PTs 14 were going to be checked. Assuming that, I'm asking 15 you to assume that that is true, under those set of 16 circumstances the nurse, her conduct in that regard, 17 would be inappropriate, wouldn't it? 18 MR. VERGON: Objection. The basis of 19 my objection, Ellen, is that in your assumption 20 you put in there that the nurse led Mrs. 21 McGarvey to believe something or other. It 22 sounds to me like your client may have drawn 23 that conclusion on her own. 24 MS. HIRSHMAN: Well, I'll ask it a 25 different way then so we don't have that 87 1 problem. 2 Q. I'd like you to assume around January 29th, 1998 3 Theresa McGarvey asked a nurse -- strike that. 4 I want you to assume on January 29th, 1998 that 5 Theresa McGarvey advised one of her husband's nurses 6 that they were concerned because they didn't think 7 PTs had been checked, and the nurse looked at the 8 chart and advised her not to worry about that 9 because blood was being drawn the next day. 10 Now, if you assume those facts, knowing what 11 you know about this patient's chart and what's in 12 the chart, if the nurse in fact told them not to 13 worry, that would have been inappropriate conduct by 14 the nurse? 15 MR. VERGON: Objection. 16 A. Well, you're asking me to make some assumptions. If 17 the nurse said lab work is being done, that was 18 true. Now, did Mrs. McGarvey actually say she 19 wanted to know about PTs or did she want to know 20 about lab work? 21 Q. Assume that the nurse was asked about monitoring 22 PTs. 23 A. Well, I don't know if the nurse knew what lab work 24 was being done, but if she asked specifically about 25 the PTs and if PTs had not been done and were not 88 1 included in tomorrow's lab work, then I would say 2 the nurse lied. 3 Q. And she gave false information? 4 A. Well, yeah, lying, I guess, is false information. 5 Q. Right. And that would be inappropriate nursing 6 care? 7 A. Yes, that would be inappropriate. 8 Q. Okay. 9 MR. FRANEY: Ellen, do you have a lot 10 more? 11 - - - - 12 (Thereupon, a discussion was had off 13 the record.) 14 - - - - 15 (Thereupon, a recess was had.) 16 - - - - 17 MS. HIRSHMAN: You know, at this point 18 in time I don't have any other questions, so 19 taking a break was beneficial, I guess. 20 MR. LYON: Wonderful. You're 21 finished? 22 MR. HIRSHMAN: That's right. 23 MS. HIRSHMAN: We're done. Thank you. 24 MR. LYON: Is everybody there? 25 MR. VERGON: Yes. 89 1 MS. HIRSHMAN: Yes. 2 MR. LYON: Ma'am, my name is Michael 3 Lyon. I'll pick up the phone here. Perhaps 4 you can hear me better. 5 THE WITNESS: I can hear you fine. 6 MR. LYON: And I just have a few 7 questions. 8 - - - - 9 CROSS-EXAMINATION OF ELLA KICK, DNSc., RN 10 BY MR. LYON: 11 Q. Apparently from your testimony, you're a member of 12 the American Nurse's Association; is that correct? 13 A. Correct. 14 Q. And how long have you been a member? 15 A. Since 19 -- I think it was March of '52 or right 16 around that time. 17 Q. If I heard you correctly, you're not only a member, 18 but you've served as a chairperson -- 19 A. Yes. 20 Q. -- of some committees, correct? 21 A. Yes. 22 Q. Have you ever been an officer? 23 A. No. 24 Q. Did you ever participate, personally participate, in 25 the promulgation of the standards which have been 90 1 set forth and published by the American Nurse's 2 Association relative to nursing care in hospitals 3 and nursing homes? 4 A. I was on the committee that developed the standards 5 of gerontological nursing. 6 Q. And when were you on that committee and when were 7 they promulgated? 8 A. Well, I was not on the committee for the first set. 9 That would have been, you know, I can't give you an 10 exact date. 11 Q. That's not necessary. 12 A. '70 -- it would have been '74, '75. 13 Q. In your professional opinion, based on your 14 education, your training and experience, were there 15 in place or in existence standards promulgated by 16 the American Nursing Association in place in 1998? 17 A. Oh, yes. 18 Q. And were there standards -- are you familiar with 19 the standards that were in place in 1998 relative to 20 the nursing standards as they would apply to a 21 nursing home? 22 A. Well, they don't have standards that apply to a 23 specific environment. They have standards that 24 relate to specific nursing areas like gerontology, 25 psychology, school of nursing, penal nursing, things 91 1 like that, but they don't tell you that it's for a 2 nursing home. But the standards for gerontological 3 nursing, of course, would have application in a 4 nursing home as well as a hospital or an ambulatory 5 clinic. 6 Q. In your professional opinion would those standards, 7 as promulgated by the American Nurse's Association, 8 apply to the nursing behavior in this case, the one 9 we're talking about? 10 A. Oh, yes. 11 Q. All right. And as a matter of fact, they delineate 12 the standard of care for nurses; do they not? 13 A. Yes. 14 Q. What, in your professional opinion, are the 15 authoritative nursing journals which you review on a 16 regular basis to keep abreast of the changing 17 state-of-the-art of nursing? 18 A. Well, the usual -- if you're talking about 19 gerontological nursing, there's the Journal of 20 Gerontological Nursing, and then there's the Journal 21 of Geriatric Nursing, then there's a journal on 22 nursing administration. 23 But really a better way to keep up with what's 24 going on is to attend the gerontology meetings, and 25 also, you know, we're obliged to be aware of the 92 1 state regulations, and it's good to attend those 2 meetings and to be current on what the state regs 3 are. 4 Q. Would you, in your professional opinion, feel the 5 American Journal of Nursing is an authoritative 6 journal of nursing? 7 A. Yes, it is. 8 Q. And would you characterize Mr. McGarvey in this case 9 as a geriatric patient? 10 A. Yes, he was 65. I feel pretty certain he was 65. 11 Q. Was he 65 or 69? I'm not sure. 12 A. Yeah, he was -- we classify him as geriatric. 13 Q. Okay. So the geriatric components of the American 14 Nursing Association standards would apply to his 15 care; would they not? 16 A. Yes. 17 Q. The medical records that you reviewed, I'm going to 18 jump around briefly, and I'm addressing the very 19 first paragraph of your consultation report you were 20 kind enough to prepare for counsel. And do you have 21 that in front of you? 22 A. Yes, I do. 23 Q. And it says on the first paragraph, it says down at 24 the bottom of the first paragraph after you have 25 characterized the depositions you reviewed, you said 93 1 the clinical records of Robert McGarvey's stay at 2 Laurel Lake for two admissions, 12-17-97 to 12-19-97 3 and 1-20-98, 2-5-98. Now, what I'm interested in is 4 have you reviewed any records beyond the 5th day of 5 February, 1998? 6 A. No, I have not. 7 Q. And are you aware of the fact that there were 8 voluminous records beyond the 5th day of February, 9 1998 reflecting the care and treatment of Mr. 10 McGarvey in the hospital? Maybe you're not. 11 A. If he was in the hospital I assume there would be a 12 record of it. 13 Q. I guess what I'm saying, do you know when he was 14 discharged from Akron General? 15 A. No, I do not. 16 Q. All right. Have you ever asked to review records 17 beyond the 5th day of February, 1998? 18 A. No, I did not. 19 Q. Did you ask for the depositions of all these 20 doctors, or were they simply sent to you by 21 counsel? 22 A. Well, they were sent to me. 23 Q. When we're talking about a nurse and a nurse's 24 responsibility, whether it be a nursing home or a 25 hospital, would you agree with me that a nurse's 94 1 primary commitment, if you will, is as a patient 2 advocate? 3 A. Her primary responsibility? 4 Q. Well, the nurse's responsibility is to the patient, 5 not the treating physician; isn't that true? 6 A. Oh, yes, her responsibility is to provide safe, 7 quality care to the resident or patient. 8 Q. And at all times to be the advocate for that 9 patient? 10 A. Yes. 11 Q. And in the event there's a dispute between a 12 treating physician or attending physician, the 13 nurse's responsibility as the patient advocate, the 14 patient advocacy always transcends their duty to the 15 doctor; is that not true? 16 A. I think there might be cases when that could not be 17 true. 18 Q. Well, as a general proposition? 19 A. In general, it's true. 20 Q. In other words, in this case, the nurses at the 21 nursing home, their primary nursing responsibility 22 was to be Mr. McGarvey's advocate; is that not true? 23 A. Yes. 24 Q. I don't know if you answered the question or not. 25 A. Oh, yes. 95 1 Q. In other words, if the nurses from a professional 2 standpoint, based on their education, their 3 training, their experience and their knowledge of 4 this patient, Mr. McGarvey, if they felt that there 5 was something done or not being done, which in their 6 professional opinions would hurt the patient, they 7 had a primary commitment and duty to be the advocate 8 for that patient to make sure that was done, did 9 they not? 10 A. Yes. 11 Q. When you were -- you were at the University of 12 Cincinnati? 13 A. Yes. 14 Q. For how long? 15 A. Four years. 16 Q. And can you name some of the nursing homes -- strike 17 that. 18 Did you work with any nursing homes here in 19 Hamilton County? 20 A. There's a round building, I can't remember the names 21 of these, there's a round building just a block away 22 from the school of nursing. Do you know which one I 23 mean? It's near General. 24 Q. Oh, I know what you're talking about, right. 25 A. I had students there. Then there were, oh, boy, 96 1 there's a Jewish home there and then there's -- you 2 know, that's been almost 30 years ago. 3 Q. Oh, that's all right. You were at the University of 4 Cincinnati College of Nursing when, approximately? 5 A. From '73 to '77. 6 Q. You probably taught my ex-wife, but we won't get 7 into that, being an ex-wife, as you can imagine. 8 A. What is your name? 9 Q. My name is Lyon, her name was Motress, Barbara 10 Motress. 11 A. No, I didn't know her. 12 Q. That's all right. We'd be on the phone all day on 13 that. 14 Relative to Coumadin toxicity, you made some 15 references to that. 16 A. Yes. 17 Q. It appears to me from your testimony that you are 18 aware, not only of the complications of Coumadin 19 toxicity, but also the clinical signs and symptoms 20 of Coumadin toxicity; is that true? 21 A. Yes. 22 Q. In other words, I heard you make mention of 23 bleeding, urine, stool, teeth, gums. Those are the 24 traditional and expected signs, objective signs of 25 Coumadin toxicity; are they not? 97 1 A. Yes. 2 Q. And my question to you is from the medical records 3 that you reviewed at the nursing home, did you see 4 any objective evidence of Coumadin toxicity 5 reflected in those types of findings? 6 A. No, I did not. 7 Q. In order to -- and I heard you talk about the 8 nurses, and it sounded to me what you're saying is, 9 and it makes sense to me, if I understand it, you're 10 saying that these nurses in this nursing home in 11 this clinical setting have confronted or asked Dr. 12 Marquart, I guess three separate times, he had given 13 them his advice. You recall that, of course? 14 A. Yes. 15 Q. And I think you said on more than one occasion that 16 the nurses did not know why he was not ordering the 17 INR levels, correct? 18 A. Yes. 19 Q. If the nursing staff at the hospital -- I'm sorry, 20 if the nursing staff at the nursing home had had 21 clinical evidence of Coumadin toxicity, i.e. 22 bleeding from the gums, blood in the stool, urine, I 23 assume you would have felt the nurses at that point 24 probably should have acted more aggressively? 25 A. Yes. 98 1 Q. But because they saw no clinical evidence of 2 Coumadin toxicity you feel comfortable with their 3 conduct? 4 A. Yes. 5 Q. And again, I don't know the answer to this, in a 6 hospital setting relative to the hierarchy, in other 7 words if a nurse hypothetically has an issue with a 8 physician's order and she goes -- and she ends up at 9 the Director of Nursing, to whom does the Director 10 of Nursing traditionally or customarily go then with 11 an issue of a doctor's order in a hospital setting? 12 A. Well, it depends. Each hospital has their set of 13 policies and procedures, and so they have a protocol 14 that tells the nurse what to do and she should 15 follow that protocol. 16 Q. And I guess what I'm getting at is in a nursing home 17 setting if the issue gets to the Director of 18 Nursing, and the Director of Nursing, based on what 19 she or he has heard, still feels that there should 20 be something done to correct the order or give the 21 order or amend the order or whatever, wouldn't the 22 Medical Director be the next step on the hierarchy 23 to bring that problem in a nursing home setting? 24 A. Yes. 25 Q. So in this case, Dr. Marquart, being both the 99 1 physician and the Medical Director, it was kind of 2 circumlocutious to the extent that he would have 3 been who the nursing director would have gone to, 4 correct? 5 A. Yes. 6 Q. And I assume that's also one of the bases for your 7 comfort level with the nursing conduct in this case? 8 A. Yes. 9 Q. That they would have ended up talking to the very 10 same individual with whom or to whom they had 11 contacted on the three previous occasions? 12 A. Yes. 13 Q. I just have one final set of questions I want to try 14 to talk to you about, how a patient gets to a 15 nursing home. 16 It's my understanding that one way a patient 17 gets to a nursing home is that an independent 18 private practicing practitioner, physician, will, 19 for however the customary process is, will send a 20 person to a nursing home. That's one way to do it? 21 A. Yes. 22 Q. In other words, you can have a physician who has 23 absolutely no contact, nor responsibilities, nor 24 contract, nor anything with the nursing home, so you 25 would have a private independent physician. 100 1 The second situation, the way it would be, is a 2 patient like Mr. McGarvey where he comes to the 3 nursing home without an attending. And is that what 4 happened here? 5 A. I don't know. 6 Q. Oh, you don't know, okay. 7 A. All right. 8 Q. Well, generally then that would be the two ways a 9 patient would get to the nursing home, they would be 10 admitted by and through a private independent 11 physician or admitted and then after which a 12 physician would be appointed; fair statement? 13 A. Well, a physician would not be appointed. Who would 14 appoint the physician? 15 Q. Well, the Medical Director then would be the one who 16 provides the services promulgated in the nursing 17 protocols? 18 A. No, the usual manner is the family talks with the 19 social worker, the Social Service Department, and 20 the Social Service Department tells the family you 21 must have a physician who will care for this patient 22 while he is here in this building, and if the family 23 says, well, I don't know anybody who comes here or 24 who has privileges here, and see nursing home 25 doctors don't have privileges in nursing homes, they 101 1 just come there. 2 So then the Social Service Department can give 3 that family a list of names of physicians who have 4 been there in the past or the social service might 5 say, well, who do you doctor with now and they might 6 know someone that that doctor has recommended in the 7 past. 8 Q. Oh, I see. 9 A. Or something like that. But they don't appoint, 10 it's up to the family or the patient himself to 11 select and bring his physician with him. 12 Q. I guess you and I can both agree that nurses do not 13 diagnose? 14 A. Oh, they make nursing diagnoses, but not medical 15 diagnoses. 16 Q. All right. And that's sometimes called assessment, 17 true? 18 A. Yes. 19 Q. But there are oftentimes in the context of emergency 20 rooms, hospital floors or even nursing homes are 21 what are called standing orders where under a 22 certain sets of circumstances nurses, without the 23 intervention of a physician order, can independently 24 order lab studies and tests; true? 25 A. Yes, according to -- it has to be standing orders 102 1 that have been approved by this interdisciplinary 2 committee. I'm talking about a nursing home. 3 Q. Okay. 4 A. The interdisciplinary committee would approve any 5 standing orders, and then when a physician comes 6 here to practice, he comes here with the -- knowing 7 that we, these are our standing orders, and if he 8 can agree to our standing orders then he practices 9 here, but if he doesn't agree to them, he can write 10 on the record any standing order that he does not 11 want to be used. 12 Q. As a consultant, expert over the years, and I don't 13 have your CV in front of me, but that's not 14 relevant, have you ever assisted any nursing home in 15 the promulgation of standing orders? 16 A. Oh, lots of them. 17 Q. I thought so. Are you aware of whether any of the 18 nursing homes that you have consulted with have 19 standing orders relative to the independent ordering 20 of PT or INR lab values relative to a patient on 21 Coumadin? 22 A. No. 23 Q. Or is that something you have seen or have consulted 24 with or have suggested? 25 A. No, I haven't seen it. 103 1 Q. So my understanding is you are not aware as to 2 whether there are any standing orders in this 3 nursing home relative to that issue; is that true? 4 A. That's true. 5 Q. And assuming they do not, just for a moment, 6 assuming they do not, you don't feel that that's 7 inappropriate, do you? 8 A. No. 9 Q. In other words, you don't think that a nursing home 10 should have standing orders that would give the 11 nurses independent authority to order PT and INR 12 levels on any and all patients on Coumadin? 13 A. No. 14 Q. You would expect the nurses to need much more 15 clinical -- well, strike that. 16 Ma'am, I really appreciate your putting up with 17 me. 18 MR. LYON: Fred, let me ask you this 19 question, I assume Ms. Kick is going to be at 20 trial? 21 MR. VERGON: Yes. 22 MR. LYON: Okay. Well, I'll reserve 23 any further cross. I have nothing further. 24 Thank you very much. 25 MR. FRANEY: I have no questions on 104 1 behalf of Akron General. 2 MR. HIRSHMAN: I have one set of 3 follow-up questions here. 4 - - - - 5 CROSS-EXAMINATION OF ELLA KICK, DNSc., RN 6 BY MR. HIRSHMAN: 7 Q. Mr. Lyon asked you some questions about Coumadin. 8 That's who this telephone is, Mr. Lyon. He's 9 actually better looking than that telephone. Let me 10 ask you some questions about Coumadin toxicity. 11 A. Yes. 12 Q. And you talked about Coumadin toxicity is sometimes 13 manifested by bleeding of the gums, sometimes it's 14 manifested by blood in the urine, sometimes it's 15 manifested by blood in the stool? 16 A. Yes. 17 Q. You didn't mean to suggest that every time there's 18 Coumadin toxicity that it manifests itself 19 externally before it manifests itself internally, 20 did you? 21 A. You know, it's hard to say how it's going to act 22 on -- you know, each patient is his own chemical 23 being and it's hard to say. Some people, it happens 24 that quick and with other people you don't see it at 25 all, so I'd be hard pressed to tell you that this is 105 1 the first sign you'll see and then this is the 2 second sign because with each patient it's 3 different. 4 Q. So you can have a patient that is overdosed on 5 Coumadin with elevated INRs who bleeds externally 6 and not internally, correct? 7 A. Yes. 8 Q. And by the same token, you can have a patient on 9 Coumadin with a toxic level and elevated INRs who 10 bleeds internally but never shows a manifestation 11 externally, correct? 12 A. Yes and no. If a patient is receiving Coumadin and 13 he has no external bleeding but if he would say to 14 me, oh, I feel light-headed today or, oh, I feel so 15 tired or gives me other symptoms like that, I'm 16 going to take his blood pressure and I'm going to 17 take his pulse because those two findings will tell 18 me if he's bleeding internally. 19 Q. Okay. 20 A. Or he might say I have a belly ache or I hurt in my 21 chest or my left calf hurts. 22 Q. Do you have an opinion as to whether Mr. McGarvey 23 was bleeding internally as of the time he was 24 transferred back to Akron General Medical Center on 25 February 5th? 106 1 MR. VERGON: I'm going to object. I 2 think that's a medical question. 3 MR. LYON: I do too. 4 Q. Do you have an opinion? 5 A. If my memory serves me correct, his INR was off the 6 scale, so to speak. 7 Q. Stratospheric, wasn't it? 8 A. Yes, and I don't remember how many units of blood he 9 had to have, so if he required blood, then he 10 probably had some bleeding somewhere. 11 Q. At the time of his transfer to the hospital? 12 A. Yes. 13 MR. HIRSHMAN: I have no further 14 questions. Thank you. 15 MR. LYON: I have one question in 16 follow-up to that. 17 - - - - 18 RECROSS-EXAMINATION OF ELLA KICK, DNSc., RN 19 BY MR. LYON: 20 Q. Ma'am, do you know what disseminating intervascular 21 coagulation is? 22 A. Yes. 23 Q. You are aware of the fact that that is a condition 24 that oftentimes when present causes bleeding? 25 A. Yes. 107 1 MR. LYON: I have no further 2 questions. I'll have a copy. 3 4 ELLA KICK, DNSc., RN 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 108 1 2 C E R T I F I C A T E 3 The State of Ohio, ) SS: 4 County of Cuyahoga.) 5 6 I, Laura L. Ware, a Notary Public within and for the State of Ohio, do hereby certify that the 7 within named witness, ELLA KICK, DNSc., RN, was by me first duly sworn to testify the truth, the whole 8 truth, and nothing but the truth in the cause aforesaid; that the testimony then given was reduced 9 by me to stenotypy in the presence of said witness, subsequently transcribed into typewriting under my 10 direction, and that the foregoing is a true and correct transcript of the testimony so given as 11 aforesaid. 12 I do further certify that this deposition was taken at the time and place as specified in the 13 foregoing caption, and that I am not a relative, counsel or attorney of either party or otherwise 14 interested in the outcome of this action. 15 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, 16 Ohio, this 17th day of April, 2000. 17 18 Laura L. Ware, Ware Reporting Service 19 21860 Crossbeam Lane, Rocky River, Ohio 44116 My commission expires May 17, 2003. 20 21 22 23 24 25