1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 RODNEY L. McCLENDON, 4 Plaintiff, 5 JUDGE McGINTY -vs- CASE NO. 374136 6 7 KAISER FOUNDATION HEALTH PLAN OF OHIO, et al., 8 Defendants. 9 10 - - - - 11 Deposition of MAUREEN KILRAIN, taken as if upon 12 cross-examination before Laura L. Ware, a Notary 13 Public within and for the State of Ohio, at the 14 offices of Mazanec, Raskin & Ryder, 100 Franklin's 15 Row, 34305 Solon Road, Cleveland, Ohio, at 11:00 16 a.m. on Thursday, August 19, 1999, pursuant to 17 notice and/or stipulations of counsel, on behalf of 18 the Plaintiff in this cause. 19 20 - - - - 21 WARE REPORTING SERVICE 22 3860 WOOSTER ROAD ROCKY RIVER, OH 44116 23 (216) 533-7606 FAX (440) 333-0745 24 25 2 1 APPEARANCES: 2 Mark W. Ruf, Esq. Hoyt Block Building, Suite 300 3 700 West St. Clair Avenue Cleveland, Ohio 44113 4 (216) 687-1999, 5 On behalf of the Plaintiff; 6 Douglas G. Leak, Esq. Mazanec, Raskin & Ryder 7 100 Franklin's Row 34305 Solon Road 8 Cleveland, Ohio 44139 (440) 248-7906, 9 On behalf of the Defendant 10 Kaiser Foundation Health Plan of Ohio; 11 Thomas H. Allison, Esq. Arter & Hadden 12 1100 Huntington Building 925 Euclid Avenue 13 Cleveland, Ohio 44115 (216) 696-1100, 14 On behalf of the Defendant 15 The Cleveland Clinic Foundation. 16 17 W I T N E S S I N D E X 18 PAGE CROSS-EXAMINATION 3 19 BY MR. RUF 20 CROSS-EXAMINATION 42 BY MR. ALLISON 21 RECROSS-EXAMINATION 49 22 BY MR. RUF 23 E X H I B I T I N D E X 24 PAGE 25 Plaintiff's Exhibits 43 and 44 3 3 1 - - - - 2 (Thereupon, Plaintiff's Exhibits 43 and 3 44 were mark'd for purposes of identification.) 4 - - - - 5 MAUREEN KILRAIN, of lawful age, called by 6 the Plaintiff for the purpose of cross-examination, 7 as provided by the Rules of Civil Procedure, being 8 by me first duly sworn, as hereinafter certified, 9 deposed and said as follows: 10 CROSS-EXAMINATION OF MAUREEN KILRAIN 11 BY MR. RUF: 12 Q. Could you please state your name and spell your 13 name. 14 A. First and last name? 15 Q. Yes. 16 A. Maureen, M-A-U-R-E-E-N, Kilrain, K-I-L-R-A-I-N. 17 Q. And what is your address? 18 A. 16593 Craigmere, that's C-R-A-I-G-M-E-R-E, Drive, 19 that's in Middleburg Heights, B-U-R-G, Ohio, 44130. 20 Q. Who is your current employer? 21 A. Ameritech New Media. 22 Q. What is it? 23 A. Ameritech New Media. 24 Q. What do you do for Ameritech New Media? 25 A. I'm a sales representative in their cable industry. 4 1 Q. You are not involved in medicine any longer? 2 A. At the present time. 3 Q. When did you go to work for Ameritech? 4 A. In February of 1999. 5 Q. Back in February of '98 who was your employer? 6 A. Kaiser Permanente Hospital. 7 Q. What was your position with Kaiser Permanente? 8 A. Physician Assistant. 9 Q. When did you leave Kaiser? 10 A. February of 1999. 11 Q. Why did you leave? 12 A. The department that I was working for, the 13 musculoskeletal department, was downsized. I lost 14 my position as a result of the downsizing. 15 Q. How many people were in the musculoskeletal 16 department? 17 A. In terms of providers? 18 Q. Yes. 19 A. Four. 20 Q. Were any of those four people physicians? 21 A. Yes. 22 Q. How many were physicians? 23 A. Two. 24 Q. And what were the other two people? 25 A. Myself, again as a Physician Assistant, and another 5 1 person also a PA or Physician Assistant. 2 Q. And what was the department downsized to? 3 A. Two people. 4 Q. A physician and a PA? 5 A. Correct. 6 Q. How long had you been working for Kaiser when the 7 department was downsized? 8 A. About four and a half years. 9 Q. Are you licensed as a Physician's Assistant? 10 A. Yes, I am. 11 Q. When were you licensed? 12 A. 1993 -- wait. Let me think. It was either 1993 or 13 1994. 14 Q. Did you pass the test the first time? 15 A. No. 16 Q. How many times did you have to take the test? 17 A. I took it once. 18 Q. You took the licensing test once? 19 A. Yes. 20 Q. And you passed the first time? 21 A. Yes. 22 Q. After you were licensed who did you work for? 23 A. I worked for University Hospitals. 24 Q. How long did you work for University Hospitals? 25 A. Two years. 6 1 Q. Why did you leave University Hospitals? 2 A. I found a better opportunity at Kaiser Hospital 3 regarding an increase in my skills. It was still 4 within the same specialty, which is orthopedics. I 5 just found it to be a better opportunity overall. 6 Q. Do you have any type of special certification in 7 orthopedics? 8 A. Other than my experience, no. 9 Q. Do you have any type of degree? 10 A. Yes, I do. 11 Q. What's your degree? 12 A. I have an Associate's in applied science as well as 13 a certificate for completion of the Physician 14 Assistant program. 15 Q. Is the Associate's in applied science a two-year 16 degree? 17 A. Correct. 18 Q. And you said you have a PA certificate? 19 A. Correct. 20 Q. How long is the training for the PA certificate? 21 A. It's two years. 22 Q. Did you get the certificate and the degree at the 23 same time or did you -- 24 A. Same time. 25 Q. So that was concurrent, two years to get both the 7 1 certificate and the degree? 2 A. Correct. I should note that I took a lot of the 3 prerequisite courses, which was a total of three 4 years, prior to entering the Physician Assistant 5 program as well. 6 Q. What training do you have in orthopedics? 7 A. Mainly my experience, two years experience at 8 University Hospitals, as well as the four and a half 9 years experience at Kaiser Hospital. 10 Q. Did you receive any training in orthopedics during 11 the PA program? 12 A. No, I did not. That was considered an elective 13 course. 14 Q. So you didn't take any orthopedic courses in the 15 obtaining of either your degree or the certificate? 16 A. No. 17 Q. Have you studied any orthopedic textbooks? 18 A. Yes. 19 Q. What orthopedic textbooks have you studied? 20 A. There's -- I mean, there's a journal that I receive, 21 the Orthopedic Journal of Medicine. During my 22 employment with Kaiser we would periodically, we 23 being myself, the other PA and another physician, 24 would review orthopedic material on a regular basis 25 to keep up with our skills, our training. 8 1 Q. Have you ever read an entire orthopedic textbook? 2 A. Well, I mean, I do have orthopedic books. From 3 start to cover, probably not, but I would say the 4 majority of the text would just depend what I was 5 looking up or what I was interested in learning 6 about. 7 Q. Were there any orthopedic textbooks available to you 8 in the musculoskeletal clinic? 9 A. Most definitely, yes. 10 Q. What books were available to you? 11 A. The names of the books? 12 Q. Yes, or the authors. 13 MR. LEAK: If you remember. The best 14 of your recollection. 15 A. There was, let's see, a Manual of Orthopedics. I 16 can't remember the author. There was a Lang's that 17 had orthopedic material in it. The chief physician, 18 she had a library of physical therapy type books 19 that I would periodically go into. That's it. 20 Q. What is the musculoskeletal department? 21 A. In terms of -- 22 Q. What does that mean? 23 A. It's a department where we assess muscle type 24 problems, bone problems, tendinous problems, 25 ligament problems. 9 1 Q. Do you know what the qualifications of the 2 physicians were in that department? 3 A. In terms of their degree, their specialty, their 4 certification? 5 Q. Yes. Was either physician board certified in 6 orthopedics? 7 A. No. 8 Q. Were they board certified in any area of medicine? 9 A. Yes. 10 Q. What area? 11 A. The one was board certified in emergency medicine 12 and the other one in physiatry. I'm sorry, did I 13 say internal medicine on the first one? 14 Q. I believe you said emergency medicine. 15 A. Yes, emergency medicine. 16 Q. Were those physicians available at all times when 17 the musculoskeletal clinic was open? 18 A. I would say the majority of times. Sometimes both 19 of them would be on vacation and then another 20 physician mainly from the internal medicine 21 department would be available to the PAs. 22 Q. While working in the musculoskeletal department did 23 you ever see patients without a physician being 24 involved? 25 A. Being involved to what degree, what level? 10 1 Q. Well, for an office visit did you ever exclusively 2 see a patient without physician involvement? 3 A. No. 4 Q. And why is that? 5 A. Well, the standard procedure was that I would go in, 6 evaluate the patient, then after the evaluation was 7 finished I would present the case to one of the 8 physicians, let them know the history of the present 9 illness, the diagnosis, x-ray findings, any 10 pertinent labs, of course the diagnosis and the 11 treatment plan. The physician would, if in 12 agreement, would go ahead and sign off on my plan. 13 Q. Did the physician sign off on the plan without 14 examining the patient? 15 A. Sometimes. 16 Q. Under what circumstances would the physician examine 17 the patient? 18 A. If I myself personally found an indication for the 19 MD to go ahead and assess the patient physically. 20 Q. So unless you told the physician you thought a 21 physician's examination was warranted, the patient 22 would not be seen by the physician? 23 A. Typically, yes. However, if there was something 24 that I had mentioned in my assessment that led the 25 physician to feel that he wanted to see the patient, 11 1 then that would occur as well, the physician would 2 see the patient in those circumstances as well. 3 Q. What if the patient asked to see a physician? 4 A. That is totally a patient's right to go ahead and 5 see an MD. Whether it's a second opinion with 6 another provider or a second opinion with a 7 physician, that, in my belief, is a patient's right 8 to request that. 9 Q. I'd like to ask you about the scope of your license 10 as a Physician's Assistant. 11 A. Uh-huh. 12 Q. What are you allowed to do under your license? 13 A. Well, that's pretty much determined from institution 14 to institution as well as provider. 15 Q. Do you know if there's any legal restriction on your 16 license as to what you can do and what you can't 17 do? 18 A. Yes. 19 Q. What are you allowed legally to do and what are you 20 not allowed to do? 21 A. You want me to run through the whole list? 22 Q. Yes. 23 A. Or just basically what I was allowed to do in the 24 MSK department? 25 Q. Yes. 12 1 MR. LEAK: Which one? 2 MR. RUF: The second. 3 MR. LEAK: The MSK. 4 A. Okay. Legally I'm permitted to perform history and 5 physical exams, legally I am permitted to inject IM, 6 interarticular injections. I am allowed to order 7 various different tests, whether they be lab tests, 8 radiology tests. I am allowed to come up with a 9 diagnosis as well as a treatment plan based on my 10 history and physical. I'm allowed to write out 11 prescriptions which require a co-signature from an 12 MD, as well as on my charts a co-signature from an 13 MD. 14 Q. Are you allowed to provide treatment for a fracture 15 without consultation with a physician? 16 A. Typically if I ran across a fracture I would call an 17 orthopedist and give them my assessment, x-ray 18 interpretation and pretty much find out what they 19 would want to do with the patient. Most of the time 20 that patient would be referred to orthopedics. 21 Since musculoskeletal, I mentioned, initially sees 22 mainly muscles, tendons, ligament type problems, we 23 don't really make it a practice to treat fractures 24 in the musculoskeletal clinic. 25 Q. So the appropriate department to evaluate and treat 13 1 fractures could be orthopedics? 2 A. Yes. 3 Q. During the time you evaluated and treated Rodney 4 McClendon did you obtain an orthopedic consult? 5 A. No. 6 Q. Why not? 7 MR. LEAK: Just so you know, I'm just 8 going to let her have a copy of that in front 9 of her. That's your note, if you have to 10 review it. 11 A. At the time when I saw the patient, Rodney, what he 12 presented to me was more of a musculoskeletal type 13 problem. 14 Q. Were you evaluating him for whether or not he had a 15 fracture? 16 A. No. 17 Q. Is that something that you're qualified to do? 18 A. Evaluation for fractures? 19 Q. Yes. 20 A. Yes. 21 Q. If you suspect that a patient may have a fracture of 22 the elbow, what tests would you order? 23 A. I would order an x-ray of that particular area. 24 Q. What views would you order? 25 A. AP, lateral. 14 1 Q. So you would order AP and lateral views of the 2 elbow? 3 A. Correct. That's if I suspect it was in the 4 olecranon area. Of course there's the radial head, 5 the ulna. I would also get pronation, supination 6 views. 7 Q. Why would you get those additional views if you 8 suspected a fracture of the radial head? 9 A. Because those particular views would give a clearer 10 picture of that particular site. 11 Q. What was the location of the facility that you 12 worked in? 13 A. I don't understand. 14 Q. The Kaiser facility, was it in Parma? 15 A. Yes, Parma. 16 Q. At the Kaiser Parma facility is there a radiology 17 department? 18 A. Yes, there is. 19 Q. And did you have the authority to order x-rays from 20 the radiology department? 21 A. Yes, I do. 22 Q. Do they have the equipment to perform AP and lateral 23 x-rays of the elbow as well as pronation and 24 supination views? 25 A. Yes. 15 1 Q. Did you order any x-rays for Rodney McClendon? 2 A. No, I did not. 3 Q. Why didn't you order x-rays? 4 A. Because based on the information from the emergency 5 room note I was under the impression that all the 6 x-rays had been done, all the appropriate x-rays. 7 Q. And what did you consider to be all the appropriate 8 x-rays? 9 A. Pretty much I was under the impression the elbow, 10 the wrist, the forearm. 11 Q. Do you know what views of the -- 12 A. Oh, and also the shoulder too. 13 Q. Do you know what views of the elbow had been taken? 14 A. I just had assumed that all the appropriate x-rays 15 had been taken. 16 Q. Did you do anything to check as to whether all the 17 appropriate x-rays had been taken? 18 A. Yes. 19 Q. What did you do? 20 A. I examined the patient. 21 Q. No, my question is did you do anything to check to 22 see if all the appropriate x-rays had been taken? 23 A. That's one way that I check is by examining the 24 patient to see if any pain is elicited in any 25 localized, any particular localized area. If there 16 1 had been, then if additional views were indicated I 2 would have gone ahead and done that. But according 3 to the ER report, pretty much the entire extremity, 4 under my impression, had been x-rayed. 5 Q. Did you do anything to find out what specific views 6 had been taken? 7 A. Well, it's a routine in the seven years that I've 8 been practicing orthopedics, it's pretty routine to 9 do a minimum of AP, lateral when we're talking about 10 the upper extremity. I did note that they did an AC 11 view of the shoulder because the provider had 12 mentioned that there was no indication of an AC 13 separation within the shoulder. 14 Q. Do you know if AP and lateral views were taken of 15 the elbow in the ER? 16 A. On the ER report it does mention elbow, yes. 17 Q. And just because it mentions elbow you would assume 18 that they've taken both AP and lateral views? 19 A. Correct. 20 Q. Would you also assume that they took pronation and 21 supination views? 22 A. No. 23 Q. Did you consider ordering pronation and supination 24 views? 25 A. No. 17 1 Q. Why not? 2 A. Again, based on my physical findings on the patient 3 I did not suspect localized pain in the radial area 4 and the ulna area to indicate that we order 5 additional views. 6 Q. Well, when you saw Rodney McClendon he returned 7 because he had continuous pain from February 6th 8 until the date you saw him, correct? 9 A. Yeah, right, two and a half days later, correct. 10 Q. And he had continuous pain bilaterally in the 11 elbows? 12 A. That is not what he presented to me on that 13 particular -- on February 9th. 14 MR. LEAK: And you can refer to your 15 note. 16 Q. Where was he having pain? 17 A. He was exhibiting pain mainly in the forearm 18 muscular region. 19 Q. Did he complain at all to you that he had severe 20 pain in the elbows? 21 A. No. 22 Q. I'm handing you what's been marked as Plaintiff's 23 Exhibit 43. 24 MR. LEAK: That's the same thing. 25 A. Yeah, I have the same thing here. 18 1 Q. First of all, do Exhibits 43 and 44 constitute your 2 entire record for Rodney McClendon's visit of 3 February 9th, 1998? 4 A. I see it. 5 MR. LEAK: He wants to know is this 6 everything you've written in this case. 7 A. Oh, yes, this is everything. 8 MR. LEAK: It's legal terminology, I 9 guess. 10 THE WITNESS: Okay. 11 Q. Now, on Plaintiff's Exhibit 43 it states at the top 12 reason for visit, bilateral elbows, correct? 13 A. Correct. 14 Q. Whose signature is underneath that? 15 A. That is a nurse. 16 Q. Would he have first been seen by a nurse before 17 seeing you? 18 A. The nurse typically will bring the patient from the 19 waiting room into the examination room. They really 20 do not do anything in terms of a significant 21 assessment on the patient. They will just ask, you 22 know, where is your pain. 23 Q. So writing down bilateral elbows would be due to the 24 patient's response to the nurse's question where is 25 your pain? 19 1 MR. LEAK: Objection. That's what the 2 nurse inquired as to. Go ahead if you know 3 what the nurse asked. 4 A. Yeah. Again, the nurse is not trained to come up 5 with a diagnosis or any pertinent assessment. The 6 patient could point to an area, for example here, I 7 have pain here, which is typically how patients will 8 respond when they are talking about their pain, they 9 will show them. 10 Now, a nurse could assess that as neck problem, 11 they could also assess it as a shoulder problem, it 12 could be pain coming from the elbow that's referring 13 up to this particular area. This is not a 14 diagnosis, this is not -- 15 Q. But the typical practice is for the nurse to ask the 16 patient where the pain is? 17 A. Correct. 18 Q. And then the nurse would record what the patient 19 said under reason for visit? 20 MR. LEAK: Well -- 21 A. It doesn't necessarily mean that they said it 22 verbally. Again, they could point to a particular 23 area. If they point here this could mean a neck 24 problem, this could mean a shoulder problem, this 25 could mean an elbow problem. I mean, it could mean 20 1 a number of different things. Am I going to tell 2 you that Rodney said the word elbow? No, I was not 3 in the room. 4 Q. Do you know whether or not he said the word elbow? 5 MR. LEAK: To the nurse or to her? 6 MR. RUF: To anybody. 7 A. No. 8 Q. When you first saw Rodney McClendon did you review 9 reason for visit? 10 A. I always make it a practice to review the reason for 11 the visit, yes. 12 Q. Before you saw Rodney did you do anything to obtain 13 his emergency room records? 14 A. Yes. 15 Q. What did you do? 16 A. The emergency room notes were available to me. 17 Q. How were they available to you? 18 A. Well, the nurses typically the night before will go 19 through a process in which they obtain the records, 20 or at least the last record of when the patient was 21 seen. 22 Q. Would you have had a hard copy of the emergency room 23 record or would that be on the computer system? 24 A. Typically from the ER it would be a hard copy. 25 Q. Did you have any radiology reports from the 21 1 emergency room visit? 2 A. I don't think so, no, because the x-rays had been 3 taken only about two and a half days prior, which is 4 certainly not enough time to get it into the 5 computer system. 6 Q. I'm handing you what's been marked as Plaintiff's 7 Exhibits 28 and 29. Is that the document you would 8 have reviewed from the emergency room department? 9 A. Yes. 10 MR. ALLISON: Could I just see what 11 those are, please. 12 MR. LEAK: There's other emergency room 13 records. 14 MR. ALLISON: I need to see what it was 15 we were referring to as 28 and 29. 16 MR. LEAK: That's the dictated note. 17 MR. ALLISON: The physician's dictated 18 note? 19 MR. LEAK: Todd Richards, that one 20 right there. It's a two-page document. 21 MR. RUF: Let's go off the record for 22 one moment. 23 - - - - 24 (Thereupon, a discussion was had off 25 the record.) 22 1 Q. Did you review Plaintiff's Exhibits 28 and 29 before 2 seeing Rodney McClendon? 3 A. Yes. 4 Q. Did you read Exhibits 28 and 29 in their entirety? 5 A. Yes. 6 Q. So you are aware that his chief complaint in the 7 emergency room was bilateral elbow and forearm 8 pain? 9 A. No. I just know that it involved the upper 10 extremity region. 11 Q. Well, that is what is recorded as his chief 12 complaint in the emergency room, correct? 13 MR. LEAK: He's referring to that. 14 A. Yes. 15 Q. And the emergency report states that he has a great 16 deal of pain to his right elbow which comes in 17 waves. 18 A. Yes. 19 Q. So you were aware of that fact when you saw him? 20 A. Yes. 21 Q. And were you also aware of the fact that the pain in 22 the right elbow was severe at times? 23 A. Yes. 24 Q. Was he complaining of that same type of pain when 25 you saw him? 23 1 A. When I saw him his pain was more localized in the 2 forearm region. 3 Q. Did you review the x-ray section of the emergency 4 department note? 5 A. Definitely. 6 Q. So you were aware that he was sent from the ER 7 department to x-ray for views of the right and left 8 forearm and elbow? 9 MR. LEAK: And wrist, I think. 10 A. Yeah, and the wrist and shoulder. 11 Q. Were you aware that Todd Richards dictated, "CCF 12 radiologist read both x-rays of right and left 13 forearm as no fracture of dislocation." I think it 14 should say or. 15 A. Yes. 16 Q. Was it a concern to you that no elbow views had been 17 taken? 18 MR. LEAK: Objection. 19 MR. ALLISON: Objection. 20 MR. LEAK: I mean, how does she know 21 that, based on these records? I guess that's 22 what -- 23 Q. Can you answer the question? 24 A. Well, it's saying right here the patient was sent to 25 x-ray from triage for view of the right and left 24 1 forearm and elbow. 2 Q. Right, but the very next line states only that the 3 view of the right and left forearm showed no 4 fracture, correct? 5 A. Well, I would imagine that at the time when I read 6 this I interpreted it as the views that I thought 7 were initially done or actually done were also 8 read. 9 Q. So even though it states that there were only views 10 of the right and left forearm, you assumed there 11 were more views? 12 MR. LEAK: Objection. It doesn't say 13 that only views of the forearm were taken. 14 A. In my mind when I read this, reading it now my 15 interpretation is that x-rays were performed of the 16 forearm and elbow, thus any interpretation of those 17 films from a radiologist would address those 18 particular areas. 19 Q. So you just made an assumption based on reading the 20 record, correct? 21 A. No, not necessarily an assumption. You just read a 22 typo. There could be a typo in a report as well. 23 Q. Well, did you call either Todd Richards or Felix 24 Martin to see if there was a typo in the report? 25 A. No. 25 1 Q. Did you call either one of them to confirm what 2 x-rays had been taken in the emergency room? 3 A. No. 4 Q. Did you call anybody at the Cleveland Clinic 5 Radiology Department to check on what x-rays had 6 actually been taken? 7 A. No. 8 Q. Well, since you did not actually have the radiology 9 reports and did not call anyone to confirm what 10 specific views had been taken, you didn't know for 11 sure what x-rays had been taken in the ER, did you? 12 A. In my mind I did, yes. 13 Q. Well, how did you know for sure? 14 A. Based on what my mental interpretation of reading 15 this report was. 16 Q. And your mental interpretation of reading the report 17 was that AP and lateral views had been taken of the 18 elbow? 19 A. That films had been taken of the forearm and the 20 elbow, yes. 21 Q. And that the films of both the forearm and elbow 22 were read as negative? 23 A. Correct. 24 Q. And you had that impression even though it only 25 states CCF radiologist read both x-rays of right and 26 1 left forearm as no fracture or dislocation? 2 A. Yes. 3 Q. When you saw Rodney McClendon did he have any signs 4 or symptoms that were consistent with an elbow 5 fracture? 6 A. No. 7 Q. When you have a fracture of a radial head can the 8 pain radiate into the forearm? 9 A. Possibly. 10 Q. I'm handing you what's been marked as Plaintiff's 11 Exhibit 30. It's the nurse triage note from the 12 emergency room. Was that document available to you 13 when you saw Rodney McClendon? 14 A. Yes. 15 Q. Did you review that document before seeing Rodney 16 McClendon? 17 A. Yes. 18 Q. Did you read the section under nursing triage 19 action? 20 A. Yes. This is what would tell me what views were 21 done. 22 Q. And what does it state on that record? 23 A. It says x-ray right and left forearm/elbow/wrist. 24 Q. And based on that note, did you assume that x-rays 25 of the right and left forearm, elbow and wrist were 27 1 ordered and actually taken? 2 A. Yes. 3 Q. Why did you assume that? 4 A. Because it was written there. 5 Q. And did you assume that both AP and lateral views 6 were taken of the forearm, elbow and wrist? 7 A. Since that is standard routine in terms of x-ray 8 views, yes. 9 Q. I'm having a little bit of trouble reading some of 10 your writing, so could you please go through and 11 read into the record what your writing states. 12 A. The entire document? 13 Q. Yes. 14 A. Patient states on February 6th, 1989 -- 1998 he 15 tried to break up a fight and landed on his palmar 16 side hands causing pain in bilateral forearm. 17 Patient works as a police officer. No swelling, no 18 numbness, tingling. 19 Went to ER Kaiser Permanente. Treatment, 20 Motrin which helps. Denies shoulder pain, wrist 21 pain. Physical examination, male in no acute 22 distress. Bilateral forearms, positive pain on 23 palpation at extensor/flexor muscles bilaterally. 24 No swelling. Sensation intact bilateral forearms. 25 No pain upon palpation at bilateral wrists to 28 1 shoulders. Strength four out of five secondary to 2 pain. 3 Assessment, bilateral forearm strain, acute 4 times three days. Plan, number one, take Motrin as 5 prescribed every day. Number two, bilateral forearm 6 straps with activity. Number three, call MSK in 7 three to four weeks if not noticing improvement. 8 Q. Where are the extensor/flexor muscles? 9 A. Do you want me to show you physically? 10 Q. Sure. 11 MR. LEAK: You're also going to have to 12 describe it for the Court Reporter because -- 13 A. I'm pointing on top of my forearm right below the 14 elbow. This is considered the extensor muscles. I 15 am pointing below or on the bottom of my forearm. 16 These are considered the flexor muscles. 17 Q. Did he have pain in those muscles when he moved or 18 just sitting there? 19 A. As I have documented, it's pain on palpation, 20 meaning that I was palpating those specific areas 21 and the patient was exhibiting pain. 22 Q. Did you palpate any area around the elbow? 23 A. Yes, I had palpated the entire extremity. 24 Q. You don't note in your record that you palpated the 25 elbow, correct? 29 1 A. Well, bilateral wrist to shoulder region, wrist 2 meaning the bottom of the extremity, shoulder 3 meaning the very top of the extremity. This is the 4 area, everything, starting there and ending there, 5 that I examined. 6 Q. Your actual record does not say anything about the 7 elbow, correct? 8 A. Correct. 9 Q. And you do not specifically note palpated elbow, no 10 pain, correct? 11 A. Correct. 12 Q. Did he have any loss of range of motion in his right 13 or left upper extremity? 14 A. I can't say for sure because I don't have it 15 documented. I tested the strength. 16 Q. Did you test for loss of range of motion? 17 A. Typically when I'm examining an extremity I will 18 test for sensation, strength, as well as range of 19 motion. 20 Q. Typically do you write down everything that you do 21 in your physical exam? 22 A. Sometimes not. 23 Q. Do you believe it's important to have thorough 24 medical documentation as to what you've done? 25 A. Yes. 30 1 Q. But your note does not say anything about range of 2 motion, correct? 3 A. Correct. 4 Q. You do note a loss of strength, correct? 5 A. Correct. 6 Q. Is that in the right or left arm? 7 A. I have it entitled bilateral forearms, so that would 8 be both arms. Everything that is written past 9 bilateral forearms is pertaining to both 10 extremities. 11 Q. And what type of strength did you test? 12 A. The extensor muscles, the flexor muscles. 13 Q. And you noted a loss of strength secondary to pain? 14 A. Correct. 15 Q. What type of pain was he having that caused the loss 16 of strength? 17 A. The loss of strength was secondary to the pain. 18 Q. Could that be consistent with a fracture of the 19 radial head? 20 A. What I was seeing was more muscular type pain. 21 Q. My question is could that be consistent with a 22 fracture of the radial head? 23 MR. ALLISON: Objection. 24 MR. LEAK: Objection. 25 Q. Please answer the question. 31 1 MR. LEAK: Go ahead, if you know. 2 THE WITNESS: When you guys say 3 objection does that mean -- 4 MR. ALLISON: It's just for the record. 5 MR. LEAK: It's just for the record. 6 MR. ALLISON: You can go ahead and 7 answer. 8 THE WITNESS: So it doesn't matter 9 whether you guys say objection or not? 10 MR. LEAK: Down the road it may. He 11 wants to know if that's a possible sign or -- 12 A. Where one would exhibit pain if they have a 13 fracture? Can you repeat the question, please. 14 Q. Yes. If a patient has a fracture of the radial 15 head, can they have pain in the flexor/extensor 16 muscles? 17 MR. ALLISON: Objection. 18 MR. LEAK: Objection. Go ahead. 19 A. Typically, in my opinion, it's going to be more 20 localized. 21 Q. Can a patient have referred pain with a fracture? 22 A. Yes. 23 Q. And with a fracture is one sign or symptom also a 24 loss of strength or loss of range of motion? 25 A. Can you repeat -- 32 1 MR. ALLISON: Objection. 2 MR. LEAK: Objection. Same thing. 3 A. Can you repeat the question? 4 MR. RUF: Please read the question 5 back. 6 - - - - 7 (Thereupon, the requested portion of 8 the record was read by the Notary.) 9 - - - - 10 A. Yes. 11 Q. What are the muscles in the area of the elbow? 12 A. What specifically? There's mainly ligaments and 13 tendons. There's the triceps muscle that attaches 14 right above the olecranon. 15 Q. Any other muscles you're aware of in the elbow? 16 A. In the elbow region? 17 Q. Yes. 18 A. No. 19 Q. What muscles, ligaments or tendons could be affected 20 if a patient was suffering from a radial head 21 fracture? 22 A. Well, the radial collateral ligament, since it 23 attaches. 24 Q. Any muscles or tendons? If you know, say, if you 25 don't, say you don't. 33 1 MR. LEAK: If you don't know, that's 2 fair enough. 3 A. Well, but every injury is different, you know. I 4 mean, are you asking me in general terms? 5 Q. Yes. 6 A. I would say mainly the radial collateral ligament 7 would be affected. 8 Q. Are you able to palpate the area of the radial 9 collateral ligament during an examination? 10 A. Yes. 11 Q. Did you do that on Rodney McClendon? 12 A. No. 13 Q. How did you actually test the strength in his 14 forearm? 15 A. I had the patient, I'm putting my arm straight out, 16 had the patient resist against flexion and extension 17 of the wrist, and that would exhibit pressure. 18 Q. So you had him hold his arm straight out and then 19 you would put pressure against his wrist both in the 20 up position and the down position? 21 A. Yes, flexion and extension, correct. 22 Q. Did you put any pressure against his arm when he 23 would move his arm straight out and then toward his 24 body? 25 A. I don't recall. I don't remember. 34 1 Q. You did not record that in your record, correct? 2 A. Correct. 3 Q. Is that the type of motion that you would use to 4 evaluate someone's elbow? 5 A. Flexion, extension, correct. 6 Q. What are the signs or symptoms of a fracture of the 7 radial head? 8 A. Mainly palpating the radial head itself and the 9 patient eliciting pain. Swelling is another one. 10 Typically with a fracture you're going to find 11 swelling, sometimes ecchymosis. 12 Q. You did not note that you palpated the radial head, 13 correct? 14 A. Correct. 15 Q. Is it your understanding that there's a standard 16 practice to re-x-ray a patient five to seven days 17 later if initially a fracture is not shown on x-ray? 18 MR. ALLISON: Objection. 19 MR. LEAK: Objection. If you know. 20 A. It is not standard procedure to re-x-ray a patient 21 if the initial films were negative regarding a 22 fracture. 23 Q. Do you know if there are changes that can occur in a 24 patient with a fracture after five to seven days 25 that may make a fracture evident when it was not 35 1 evident initially? 2 MR. LEAK: Objection. On an x-ray 3 film? 4 MR. RUF: Yes. 5 MR. LEAK: If you know. 6 A. I would say five to seven days may be a little bit 7 too quick. 8 Q. Well, how long would it take for changes to occur 9 that might make a fracture more evident on x-ray? 10 MR. LEAK: Objection. 11 A. It just depends on the particular injury. I can't 12 really answer that. 13 Q. Do you know what occurs in the healing process that 14 may make a fracture more evident on x-ray at a later 15 time? 16 MR. LEAK: Objection. 17 MR. ALLISON: Objection. Go ahead. 18 Q. They're just being obstructive. Ignore them. 19 MR. ALLISON: That's actually not true. 20 MR. LEAK: We're not. 21 MR. ALLISON: That was about as vague 22 and general and unanswerable a question as I've 23 heard in a long time, so, no, I don't believe 24 I'm being an obstructionist in the slightest. 25 MR. LEAK: And also remember, she's a 36 1 Physician's Assistant and we're starting to get 2 into medical diagnoses and, you know, that may 3 be more appropriate for an MD. We're just -- 4 Q. Can you answer the question? 5 A. Can you repeat the question? 6 Q. Sure. 7 MR. RUF: Could you please read back 8 the question. 9 - - - - 10 (Thereupon, the requested portion of 11 the record was read by the Notary.) 12 - - - - 13 MR. ALLISON: Objection. 14 MR. LEAK: Objection. 15 A. No. 16 Q. Did Rodney McClendon ask to see a physician? 17 A. I don't recall. 18 Q. He has testified that he did ask to see a physician 19 on February 9th, 1998. Do you have any reason to 20 dispute that? 21 A. Was he asking to see the physician on that day or 22 for a future appointment? 23 Q. He has testified that he asked to see a physician 24 that day. 25 A. If a patient asks me for a second opinion from an 37 1 MD, it is always honored and I will go and get a 2 physician to go speak with that patient. It has 3 happened before in the past and certainly myself as 4 a provider do not have a problem at all with 5 honoring a patient's request for a second opinion. 6 Q. Would you have any reason to refuse his request -- 7 A. None whatsoever. 8 Q. -- to see a physician? 9 A. None whatsoever. 10 Q. Do you agree it would be inappropriate for you to 11 refuse a patient's request to see a physician? 12 A. Most definitely, yes. 13 Q. Do you have the authority to refuse a patient's 14 request to see a physician? 15 A. No. 16 Q. Do you know if a physician actually saw Rodney 17 McClendon on February 9th, 1998? 18 A. I don't think so, at least not in the MSK 19 department. 20 Q. No physician's signature is noted on Plaintiff's 21 Exhibits 43 and 44, correct? 22 A. Which one is 43 and 44? 23 MR. LEAK: 44. 24 A. Did you ask me if no physician is documented? 25 Q. Yes. 38 1 A. This is a physician's signature underneath mine. 2 Q. But you said that based on your standard practice a 3 physician could have reviewed your history, physical 4 exam, your findings and your suggested care plan and 5 signed off on the record without actually seeing the 6 patient, correct? 7 MR. ALLISON: Objection. That wasn't 8 your question. 9 MR. LEAK: Objection. That wasn't your 10 question. Your question was is there a 11 signature. 12 MR. RUF: She answered the question. 13 MR. LEAK: There is one. 14 MR. RUF: And now I have a follow-up 15 question. 16 MR. LEAK: Well, just to make it clear, 17 that was not your question and that's where the 18 confusion was. 19 MR. RUF: There's no confusion. She 20 answered the question. 21 MR. LEAK: Yes, there was. 22 MR. RUF: And I asked a follow-up 23 question. 24 MR. LEAK: Do you want to repeat the 25 last question? Re-ask the question. 39 1 Q. Based on your standard practice you could have taken 2 a history and physical exam, made a diagnosis and 3 suggested a treatment plan and the physician could 4 have reviewed all of those without actually seeing 5 Rodney McClendon, correct? 6 A. Correct. 7 MR. LEAK: I guess I just was trying to 8 make sure the record was clear that that 9 signature was an MD underneath Maureen's. 10 Q. The MD did not note actually seeing Rodney McClendon 11 in the record, correct? 12 A. Correct, there was no indication for the physician 13 to see the patient. 14 Q. Typically if a physician sees a patient do they 15 record their findings in the record? 16 A. Yes, or they will report to me their findings and 17 then I will document it. 18 Q. What was your diagnosis for Rodney McClendon? 19 A. Bilateral forearm strain. 20 Q. And what treatment did you prescribe for him? 21 A. I asked him to continue with the Motrin that had 22 already been prescribed to him from the emergency 23 room visit. I prescribed forearm straps on both 24 forearms, and I asked the patient to call or somehow 25 contact the MSK department in three to four weeks if 40 1 not noticing any improvement. 2 Q. The Motrin is pain medication, correct? 3 A. It serves as an antiinflammatory which serves to 4 help with pain, yes. 5 Q. What were the straps that you gave to him? 6 A. What were they in terms of -- what specifically do 7 you want me to say about the forearm straps? 8 Q. What did they do, what's the purpose of forearm 9 straps? 10 A. The forearm straps are mainly to help immobilize the 11 area of the forearm, thus reducing stress on 12 particular muscles, tendons, and that can aid in 13 terms of the healing process. 14 Q. Where do the forearm straps go? 15 A. Right below the elbow. 16 Q. And what do they immobilize? 17 A. The extensor tendons, muscles of the forearms. 18 Q. Do they immobilize the elbow joint? 19 A. No. 20 Q. And he was to call the musculoskeletal department in 21 three to four weeks if he was not improving, 22 correct? 23 A. Correct. 24 Q. You did not tell him to make an appointment if he 25 was still having problems in three to four weeks, 41 1 correct? 2 A. Well, calling the MSK department is actually making 3 an appointment or at least talking to a provider 4 one-on-one regarding any lack of improvement. 5 Q. Does the acceptable standard of Physician's 6 Assistant practice require you to take a thorough 7 history and physical exam? 8 A. Yes. 9 Q. And do you believe that you did that for Rodney 10 McClendon? 11 A. I would say that I did a thorough physical exam, 12 however, I don't feel that I did my usual 13 documentation. I don't recall what was going on 14 that day, but in terms of my usual documentation 15 within the notes, no. 16 Q. So your documentation was less thorough than usual? 17 A. Yes. 18 MR. RUF: Okay. Thank you. That's all 19 I have. I may have some follow-up questions 20 after this gentleman. 21 MR. ALLISON: Ms. Kilrain, my name is 22 Tom Allison. We met right before your 23 deposition. I represent the Cleveland Clinic 24 in this case. I just have a few questions, 25 probably follow-up on some of the things that 42 1 you've already talked about. 2 - - - - 3 CROSS-EXAMINATION OF MAUREEN KILRAIN 4 BY MR. ALLISON: 5 Q. First, you only saw Rodney McClendon one time; is 6 that correct? 7 A. Correct. 8 Q. And that was at the Kaiser facility at the Parma 9 medical center? 10 A. Correct. 11 Q. With respect to exactly what records you reviewed of 12 the emergency room visit, I think we've talked about 13 the two-page dictated note? 14 A. Uh-huh. 15 Q. And then I believe there was also mention of a 16 nursing triage note? 17 A. Correct. 18 Q. Was there any other part of the ER record that you 19 had at the time that you saw Mr. McClendon on 20 February the 9th of 1998? 21 A. No. 22 Q. So just those three pages then was all you would 23 have had? 24 A. Correct. 25 MR. LEAK: Can I interject something? 43 1 MR. ALLISON: Sure. 2 MR. LEAK: Because she doesn't have a 3 recollection and she's only been thrown records 4 in front of her, you may want to ask her, I 5 don't know if she reviewed, this is a part of 6 the ER record. I don't know. 7 MR. ALLISON: Let's go off the record 8 for a second. 9 - - - - 10 (Thereupon, a discussion was had off 11 the record.) 12 - - - - 13 Q. Showing you what's been previously marked as 14 Plaintiff's Exhibit 31, it's part of the Cleveland 15 Clinic, the Kaiser emergency room visit of February 16 the 6th marked as Plaintiff's Exhibit 31. Was that 17 something that you would have reviewed as well? And 18 if you recall fine, and if you don't that's fine 19 too. 20 A. I don't really recall. I mean, typically I would 21 get the Kaiser notes from the CCF. 22 Q. Do you specifically recall reviewing that nurse's 23 triage note that is marked as exhibit what? 24 MR. LEAK: 30. 25 Q. Yeah, do you specifically recall reviewing that? 44 1 A. Well, given the fact that all three documents are 2 typically available before I assess a patient, yes. 3 Q. Well, do you have a specific recollection or is it 4 that you believe you probably would have because 5 they typically would have been available? 6 A. Correct, I believe. 7 Q. Okay. 8 A. Yes. 9 Q. Not that you have a specific recollection? 10 A. No. 11 Q. Anything else that you can recall that you looked at 12 at the time you saw Mr. McClendon that was part of 13 that Kaiser emergency room visit? 14 A. No. 15 Q. My understanding of what you said is that your 16 evaluation of Mr. McClendon, based upon both the 17 history that you took and your physical examination, 18 is that he had a muscular strain of his forearm 19 muscles, correct? 20 A. Correct. 21 Q. In terms of the evaluation that you described to us 22 where you would have tested the strength of his 23 wrists, is that right, and you noticed that he was 24 four out of five secondary to pain? 25 A. Yes. 45 1 Q. And I think you indicated when you were explaining 2 to us how you did that test that he would have put 3 his arm in full extension? 4 A. Yes. 5 Q. So that the elbow was fully extended and the arm was 6 straight, correct? 7 A. Correct. 8 Q. Then you would push down on the wrist or on the hand 9 to flex the wrist, push up on the hand to 10 hyperextend the wrist? 11 A. Right, with his resistance. 12 Q. With his resistance? 13 A. He would be forcing resistance. 14 Q. Do you recall any complaint by him at the time that 15 you did that test that he was having any difficulty 16 fully extending his arm? 17 A. No. 18 Q. If he would have made any comment to you about 19 having any pain or difficulty fully extending his 20 arm, would you have noted that in your records? 21 A. Definitely. 22 Q. And he didn't complain to you of that, did he? 23 A. No. 24 Q. In terms of your evaluation on the second page of 25 what is Plaintiff's Exhibit 44, you make the 46 1 notation negative pain on palpation with bilateral 2 wrists, slash, shoulders? 3 A. Correct. 4 Q. Now, is it my understanding from your testimony that 5 what that means is that he did not have any pain on 6 palpation when you palpated his entire upper 7 extremities, his entire arm, that would be meaning 8 the wrist, the elbows and the shoulder, that joint? 9 A. Correct. 10 Q. So that by your normal designation of how you write 11 your notes, that would have meant that you palpated 12 his wrist, his elbow, and his shoulder and found no 13 pain, correct? 14 A. Correct. 15 Q. And based on your evaluation, because there was no 16 pain with palpation of his wrist, his elbow and his 17 shoulder, but there was pain on palpation of the 18 muscles of his forearm, and the history that he gave 19 you, your clinical impression, was that there was no 20 need for further x-rays to be taken, correct? 21 A. Correct. 22 Q. And that evaluation and that assessment was 23 concurred by the physician that you discussed Mr. 24 McClendon's case with, correct? 25 A. Can you repeat that? 47 1 Q. Sure. And I'm sorry, it may have been a little long 2 and confusing. 3 The physician -- who was the physician, by the 4 way, that you discussed this evaluation with that 5 signed off on the note? 6 A. Dr. Charles Duncan. 7 Q. Okay. Is Dr. Duncan still there in the department, 8 in the MS department? 9 A. Actually, he's an internist. He works in internal 10 medicine. 11 Q. After you did your evaluation of Mr. McClendon and 12 you took your history and you did your physical, 13 made your assessment and your plan, you specifically 14 discussed those matters with Dr. Duncan, correct? 15 A. Correct. 16 Q. And Dr. Duncan didn't indicate that he thought there 17 was any need for further x-rays to be taken, 18 correct? 19 A. Correct. 20 MR. RUF: Objection. Move to strike. 21 Q. Have you ever examined a patient in your work as a 22 Physician's Assistant in an orthopedic area that did 23 have a fracture of the elbow? 24 A. Yes. 25 Q. Have you ever examined a patient, if you can recall, 48 1 that had a fracture of the radial head? 2 A. Yes. 3 Q. What typically did you see from your evaluation when 4 you examined a patient that had a fracture of the 5 radial head? 6 A. Well, mainly on the x-ray I would -- oh, are you 7 talking about physically? 8 Q. I'm sorry, clinical physical examination. 9 A. Well, localized tenderness right at the radial head, 10 generally swelling, depending on how long ago the 11 injury was, typically ecchymosis, and usually 12 decreased range of motion. 13 Q. And Mr. McClendon had none of those symptoms when 14 you saw him on February the 9th, correct? 15 MR. RUF: Objection. 16 A. Correct. 17 - - - - 18 (Thereupon, a discussion was had off 19 the record.) 20 - - - - 21 MR. ALLISON: Thank you. That's all I 22 have. 23 24 - - - - 25 49 1 RECROSS-EXAMINATION OF MAUREEN KILRAIN 2 BY MR. RUF: 3 Q. You made no notations about Rodney McClendon's elbow 4 either negative or positive, correct? 5 A. Correct. 6 MR. RUF: That's all I have. Thanks. 7 MR. ALLISON: Nothing further. 8 MR. LEAK: That's it. I'm going to 9 recommend that you can read this, just to make 10 sure everything was taken down accurately. 11 Same thing we've done with everyone else. I'll 12 order a copy. 13 14 MAUREEN KILRAIN 15 16 17 18 19 20 21 22 23 24 25 50 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, MAUREEN KILRAIN, 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 day of , 1999. 17 18 Laura L. Ware, Ware Reporting Service 19 3860 Wooster Road, Rocky River, Ohio 44116 My commission expires May 17, 2003. 20 21 22 23 24 25