0001
 1              IN THE COURT OF COMMON PLEAS
 2                OF CUYAHOGA COUNTY, OHIO
 3                      - - - - -
 4   LARRY ZERBIAN, et al.,
 5         Plaintiffs,
 6         vs              Case No. CV-07-618652
 7   UNIVERSITY HOSPITALS
     HEALTH SYSTEM, INC., et al.,
 8   
           Defendants.
 9   
10                       - - - - -
11   
12         DEPOSITION OF MICHELLE LISGARIS, M.D.
13                WEDNESDAY, MAY 21, 2008
14                       - - - - -
15        Deposition of MICHELLE LISGARIS, M.D., a
16   Defendant herein, called by counsel on behalf of
17   the Plaintiff for examination under the statute,
18   taken before me, Vivian L. Gordon, a Registered
19   Diplomate Reporter and Notary Public in and for
20   the State of Ohio, pursuant to agreement of
21   counsel, at University Hospitals, Foley
22   Building, Cleveland, Ohio, commencing at 9:30
23   o'clock a.m. on the day and date above set
24   forth.
25                       - - - - -
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiff
 3         Becker & Mishkind co., LPA
 4         HOWARD D. MISHKIND, ESQ.
 5         Skylight Office Tower Suite 660
 6         1660 W. 2nd Street
 7         Cleveland, Ohio 44113
 8         216-241-2600
 9   
10   
11   
12   On behalf of the Defendant
13         Moscarino & Treu
14         KRIS H. TREU, ESQ.
15         The Hanna Building Suite 630
16         1422 Euclid Avenue
17         Cleveland, Ohio 44115
18         216-621-1000
19   
20   
21                       - - - - -
22   
23   
24   
25   
0003
 1         MICHELLE LISGARIS, M.D., a witness herein,
 2   called for examination, as provided by the Ohio
 3   Rules of Civil Procedure, being by me first duly
 4   sworn, as hereinafter certified, was deposed and
 5   said as follows:
 6         EXAMINATION OF MICHELLE LISGARIS, M.D.
 7   BY MR. MISHKIND:
 8         Q.    Would you please state your name for
 9   the record.
10         A.    Michelle Lisgaris.
11         Q.    Dr. Lisgaris, my name is Howard
12   Mishkind.  We were introduced a few minutes
13   before the deposition started.  As you know, I
14   represent Mr. Zerbian and his wife in connection
15   with the lawsuit that has been filed against a
16   number of people.  You are one of the named
17   parties to this action.  You understand that?
18         A.    Yes.
19         Q.    I'm going to be asking you some
20   questions relative to your role in this case as
21   an infectious disease consultant and some
22   questions about your background and experience.
23   Hopefully the deposition won't be terribly long,
24   but we will have to play it by ear.
25         A.    Sure.
0004
 1         Q.    I have had a chance to look at
 2   interrogatory answers that you had provided
 3   through your attorney a while ago and what I
 4   would like to do is to start with some questions
 5   relative to the interrogatories and then we will
 6   work forward.
 7               First, to begin with, who is your
 8   employer?
 9         A.    UH Case Medical Center.
10         Q.    Now, at the time that the
11   interrogatories were answered there was a
12   reference to you being employed by University
13   Physicians, Inc., in interrogatory number 24.
14         A.    Right.
15         Q.    Can you explain to me the difference
16   between University Physicians, Inc. and UH Case
17   Medical Center?
18         A.    Well, until recently, until UH Case
19   Medical Center was put together, most of the
20   physicians in all departments had their own
21   physician groups, independent groups, and more
22   recently UH, instead of having multiple
23   physician groups, they combined all independent
24   physician groups into UHMG.  It's just a change
25   of name and oversight.  That's all I can really
0005
 1   say.  They combined a bunch of physicians'
 2   groups together into one group.
 3         Q.    Do you know when that was?
 4         A.    Not that I can recall.  Not exact
 5   dates I don't recall.
 6         Q.    During the course of the deposition,
 7   if you know an answer, by all means give me the
 8   answer.  If you are able to give me an estimate
 9   or give an approximation, let me know that you
10   are not certain but you believe.
11         A.    Okay.
12         Q.    If I ask you a question that you
13   simply don't know the answer to, tell me you
14   don't know.
15         A.    Okay.
16         Q.    If it's something that I need to
17   delve into further from the standpoint of, for
18   example, what your expectations were of a
19   particular scenario and you need to see
20   something to answer that to provide an honest
21   and thorough answer, we will explore that step
22   by step, okay?
23         A.    Uh-huh.
24         Q.    Is that a yes?
25         A.    Yes.
0006
 1         Q.    Also, make sure that you do answer
 2   verbally.  It becomes very comfortable to do
 3   exactly what you did a moment ago, but Vivian,
 4   unless she is looking over at you won't be able
 5   to get the nodding of the head or the gesture if
 6   it's a yes or no.  So please answer verbally.
 7               Also, when you are answering my
 8   question, I will wait until you are entirely
 9   done answering the question.  Do the same with
10   me in terms of waiting until I'm done with the
11   question before you start to answer.  Will you
12   do that, as well?
13         A.    Yes.
14         Q.    With those introductory
15   instructions, do you understand that I'm going
16   to be relying upon the answers that you give
17   when this case proceeds to trial?
18         A.    Yes.
19         Q.    And is it fair then for me to
20   conclude that if you answer a question, you
21   understood the question?
22         A.    Yes.
23         Q.    Okay.  Great.
24               Going back to the interrogatories
25   for a moment, you indicated in the
0007
 1   interrogatories that prior to this case you had
 2   never been named as a party to any litigation.
 3   Does that still stand; that this is the only
 4   case that you are a defendant in?
 5         A.    Currently, yes.
 6         Q.    Have you ever been named as a
 7   defendant in any cases?
 8         A.    As a resident.  Not as an attending.
 9         Q.    How many times were you named in a
10   case as a resident?
11         A.    Two.
12         Q.    Are either of those cases still
13   pending?
14         A.    No.
15               MR. TREU:  Note my objection to this
16   line of questioning.  Go ahead.
17               MR. MISHKIND:  That's fine.
18         Q.    Were you a resident here at
19   University Hospitals?
20         A.    No.
21         Q.    Where were you a resident?
22         A.    Cleveland Clinic Foundation.
23               THE WITNESS:  Do you want me to sign
24   this?
25               MR. MISHKIND:  We will mark it as an
0008
 1   exhibit momentarily and I will have you identify
 2   it as being a true and accurate copy of your CV.
 3         Q.    When you were a resident of The
 4   Cleveland Clinic, was it -- what year of your
 5   residency were these matters that you were
 6   involved in?
 7         A.    Do you mean in terms of was I an
 8   intern, second year or the actual years?
 9         Q.    Good question.  In terms of the
10   subject matter or the patient care that was
11   involved, were you an intern?  Were you a
12   resident?  Were you a junior resident, senior
13   resident?
14         A.    I believe that the first one I was
15   an intern or early in my second year and the
16   second one I was in my third year, the end of my
17   third year.
18         Q.    I don't want you to go into great
19   detail on either of them, nor do I necessarily
20   need an explanation as to the outcome, but can
21   you tell me what the subject matter of those
22   cases involved as it relates to your care?
23               MR. TREU:  I'll object.  Is it not
24   pending anymore?
25               THE WITNESS:  Correct.
0009
 1         A.    One I was an intern in the emergency
 2   room.  That case was subsequently thrown out of
 3   court because they admitted to lying on the
 4   stand and it was disposed without -- whatever
 5   that is called. Nothing happened.  It was in our
 6   favor.
 7               And the second one, I wasn't named
 8   independently.  I was called to give a
 9   deposition because I was a resident in the care
10   of the patient.  I wasn't specifically named.
11               MR. TREU:  You were only named in
12   the one case?
13               THE WITNESS:  Correct.
14         Q.    The second case where you were a
15   third year resident where you were involved in
16   the care but weren't named, did it have to do
17   with an infectious disease issue?
18         A.    No.
19         Q.    What was the medical subject matter?
20         A.    I was the supervising resident and a
21   gentleman was hypotensive after having an EGD
22   placed and I had to put in the line and
23   stabilize him for transport to the intensive
24   care unit.
25         Q.    Prior to today, has your deposition
0010
 1   ever been taken before?
 2         A.    Yes.
 3         Q.    How many times?
 4         A.    Twice.
 5         Q.    Is this the third time?
 6         A.    This is the third time.
 7         Q.    Was your deposition taken in those
 8   two previous matters?
 9         A.    Yes.
10         Q.    According to the interrogatory
11   answers, you saw Mr. Zerbian on September 15th,
12   2005; is that correct?
13         A.    Yes.
14         Q.    And was that the only time that you
15   were directly involved in his care?
16         A.    Yes.
17         Q.    Specifically, it was interrogatory
18   number 17.
19               When Mr. Zerbian ultimately had the
20   bacterial endocarditis diagnosed and the mitral
21   valve tear and then the mitral valve surgery
22   that was done here, I believe, at UH, were you
23   at all involved in any of that care?
24         A.    No.
25         Q.    Have you had an opportunity to
0011
 1   review any of the records as it relates to the
 2   actual injury that he sustained to the mitral
 3   valve and the subsequent surgery?
 4         A.    No.
 5         Q.    Do you know as you sit here right
 6   now who did the mitral valve replacement?
 7         A.    No.
 8         Q.    I believe in interrogatories I asked
 9   whether you have ever served as an expert
10   witness in any medical negligence cases.  I
11   think your answer was no.  But let me not assume
12   anything and ask you point blank, have you ever
13   served as an expert?
14         A.    I have not.
15         Q.    So other than this case and you
16   believe being named when you were an intern
17   working in the ER, and then your involvement as
18   a resident with the patient that had the EGD,
19   this would be the third time that you have been
20   involved directly or indirectly in some type of
21   litigation?
22         A.    Yes.
23         Q.    Okay.  But this is actually the
24   first time where you were named outside of your
25   residency capacity?
0012
 1         A.    Yes.  It's the first time my name
 2   has actually been on a document, yes.
 3         Q.    Very good.  At the time that you saw
 4   Mr. Zerbian, were you the attending infectious
 5   disease consultant?
 6         A.    Yes, I was.
 7         Q.    Were you consulted by anyone at
 8   Heather Hill after Mr. Zerbian was transferred
 9   from UH to the rehab hospital?
10         A.    No, I was not.
11         Q.    And it's my understanding that --
12   and we will talk in greater detail, but to just
13   get an overview -- that you had certain
14   expectations as to what you wanted to have done
15   with regard to Mr. Zerbian to monitor his
16   condition; is that a fair statement?
17         A.    Can you rephrase it?
18         Q.    Sure.  You had certain expectations
19   as to certain lab work that you wanted to have
20   done on Mr. Zerbian; is that a fair statement?
21         A.    I had left recommendations for lab
22   work.  I recall that when I saw him it had not
23   yet been determined if he was going to a
24   facility or going home.
25         Q.    Okay.
0013
 1         A.    And thus the recommendations were
 2   written as such.
 3         Q.    And to be very specific, you wanted
 4   a CBC, you wanted a C-reactive protein, and you
 5   wanted an erythrocyte sedimentation rate done?
 6         A.    I requested those, yes.
 7         Q.    And that was because at the time
 8   that the discharge planning was being done, one
 9   could not rule out an infectious origin for his
10   symptomology; is that a fair statement?
11         A.    For what symptomatology?
12         Q.    For his condition that brought him
13   to University Hospitals while --
14         A.    For his back pain?
15         Q.    Right.
16         A.    Rephrase that.  I'm sorry.
17         Q.    Not a problem.
18               There were a number of tests done
19   while he was in the hospital at University;
20   correct?
21         A.    Yes.
22         Q.    You knew that he had had a gallium
23   scan that was done that showed a questionable
24   infection of the spine; correct?
25         A.    Or inflammation, yes.
0014
 1         Q.    Well, certainly based upon the
 2   gallium scan which was done -- and I understand
 3   it was done before you saw him -- but when you
 4   saw him and did your consultation, you looked
 5   back at the information that had been gathered
 6   by others; correct?
 7         A.    Correct.
 8         Q.    And that was part of your job as an
 9   infectious disease consultant to sort of circle
10   the wagons and sort of figure out what was going
11   on with this patient; correct?
12         A.    Correct.
13         Q.    You wanted to help out or perhaps
14   guide the team in terms of decision-making as to
15   what condition or conditions the patient might
16   have; correct?
17         A.    Correct.
18         Q.    You wanted to sort of work through
19   that differential diagnosis process that you
20   learned in medical school and carried throughout
21   your practice; correct?
22         A.    Well, we were asked specifically to
23   comment on his back, which is -- it was a very
24   broad question with multiple parts.  But when we
25   were consulted, it was did we feel at that time
0015
 1   his back was infected.
 2         Q.    Okay.  And looking at the back, in
 3   terms of the inflammatory markers or the
 4   infectious disease markers, is it fair to say
 5   that at the time that he was discharged, you as
 6   the infectious disease consultant were not able
 7   to rule out infection in his back?
 8         A.    Correct.
 9         Q.    If he had an infection in his back,
10   it could have been diskitis as one of the
11   possibilities; correct?
12         A.    Correct.
13         Q.    Osteomyelitis would be another
14   possibility?
15         A.    Yes.
16         Q.    What other forms of infection would
17   fall within a disk or a vertebral infection that
18   you would have to consider in a patient that has
19   pain, who had had a positive blood culture, who
20   had had some of the markers that you had seen in
21   terms of the elevation in his ESR, the elevation
22   in the C-reactive protein, the questionable
23   gallium scan, or would that cover the field?
24               I know it's sort of a broad
25   question, but I commented on diskitis, I
0016
 1   commented on osteomyelitis.  Would there be
 2   anything else in terms of potential forms of
 3   infection that would be within your differential
 4   when you saw the patient?
 5               MR. TREU:  Object to the form of the
 6   question.
 7         A.    For his back?
 8         Q.    Yes.
 9         A.    Well, those are the two areas of the
10   back that we worry about basically.  Or not that
11   we worry about, but that can be involved in an
12   infection because you have spine and you have
13   disks.
14         Q.    Sure.  Now, have you in your
15   experience -- strike that.
16               Do you remember Mr. Zerbian as a
17   patient?
18         A.    After reviewing my consult I did.
19   Off the top of my head, no, until I read my
20   consult.
21         Q.    After reading the consult, are you
22   able to take yourself back to that time period
23   and visualize the patient and any of the
24   discussion that you had with him or with your
25   team?
0017
 1         A.    Yes.
 2         Q.    Both?
 3         A.    We worked together, so we had our
 4   discussions with the patient and the family with
 5   my team.
 6         Q.    Okay.  Did you meet Mr. Zerbian's
 7   wife?
 8         A.    I believe she was there, yes.
 9         Q.    Tell me what conversations you
10   remember having with Mrs. Zerbian, with Larry
11   Zerbian's wife.
12         A.    Well, as I do with all my
13   patients -- his wife was with him when I saw
14   him.  The plan as I outlined was what we
15   discussed. I believe, if I recall correctly, the
16   day that we saw him, the plans were whether --
17   they were deciding whether he was going to go
18   home or to rehab.  And I discussed, just as I
19   had written in my note, that if there are any
20   signs of fever or increase in the quality or
21   change in the quality of his pain that he should
22   contact my office, and especially to make, you
23   know, a follow-up appointment.
24               As I recall, when I saw them, the
25   plan was that he was going home with his wife.
0018
 1   And thus I had written -- and I discuss
 2   everything I write down.  Patient advised to
 3   call office if symptoms worsen and follow up in
 4   ID clinic with me in two to three weeks.
 5         Q.    When you saw him on the 15th, you
 6   were operating off the assumption that he was
 7   going to go home rather than to I guess it was
 8   called UHHS, Heather Hill rehab hospital?
 9         A.    It hadn't been decided where he was
10   going yet.  Thus I always instruct the family
11   what I expect or what I would like to have done
12   and I write it so it can be transferred no
13   matter where they go.  The orders and such get
14   passed forward.
15         Q.    Now, I believe -- and we'll talk in
16   greater detail in a minute -- but I believe the
17   ultimate discharge instructions, perhaps even
18   the discharge summary had Dr. Goddard, who was
19   the patient's family doctor, had his name on the
20   ultimate discharge summary.
21         A.    I did not have that.
22         Q.    If you want to just take a look at
23   that.
24         A.    Oh, okay.  The copy is sent to any
25   of the care providers in a patient's care when
0019
 1   they are discharged.
 2         Q.    And you have the discharge summary
 3   which looks to me to be four pages in length.
 4         A.    Sorry, I didn't see that.
 5         Q.    Now, this was prepared by
 6   Dr. Williams for Dr. Ashwath?
 7         A.    Yes, it appears so.
 8         Q.    And have you had an opportunity to
 9   talk with Dr. Ashwath about this case, even just
10   in passing in the hall?
11         A.    I have not talked to anybody in
12   passing about this case.
13         Q.    Have you read any deposition
14   transcripts in this case?
15         A.    No.
16         Q.    Have you been provided with any
17   deposition transcripts that you haven't read
18   yet?
19         A.    No, I've just met with him.
20         Q.    With the good looking guy seated to
21   your right?
22               Just so the record is clear, on this
23   discharge summary, it has Dr. Goddard, Donald
24   Goddard's name on it, as well as Dr. O'Hara,
25   Dr. Pawlicki, and then obviously Dr. Williams
0020
 1   and Dr. Ashwath.
 2               This discharge summary would have
 3   been dictated after your consult; correct?  Not
 4   necessarily the same day, but subsequent to
 5   your --
 6         A.    Yes, it's indicated that it was
 7   dictated on September 16th.
 8         Q.    In fact, the discharge summary has
 9   reference to your consult and this telephone
10   number of 844-2085.  Was that your office
11   number?
12         A.    Yes, it is.
13         Q.    Okay.  And I think the discharge
14   summary indicates that any further infectious
15   disease questions should be directed to you,
16   Dr. Lisgaris; correct?
17         A.    Yes.
18         Q.    So just to get a framework for what
19   we are going to be discussing, when you saw
20   Mr. Zerbian on the 15th, whether he was going to
21   go home or whether he was going to be admitted
22   to a rehab facility, irrespective of that
23   decision, you wanted to have further testing
24   done to follow up and continue to rule in or
25   rule out the existence of infection; correct?
0021
 1         A.    Well, to see if there was resolution
 2   of the inflammation that was present in the
 3   hospitalization.
 4         Q.    But is it fair to say that at that
 5   particular time, whether it was inflammation, or
 6   an ongoing infection, you weren't able to say
 7   definitively, I, as the infectious disease
 8   consultant, can rule out and eliminate from the
 9   differential, infection as a source of his back
10   pain?
11         A.    Correct.  At the time of discharge I
12   could not say one way or the other whether there
13   was infection present in his back.
14         Q.    Okay.  Now, what I would like to do
15   because if I don't do it, I'll forget, let me
16   step back, mark your CV and talk to you a little
17   bit about your background and training and then
18   we will jump back into September 15th and try to
19   keep on our merry way to the finish line.  Fair
20   enough?
21                     - - - - -
22              (Thereupon, LISGARIS Deposition
23               Exhibit 1 was marked for
24               purposes of identification.)
25                    - - - - -
0022
 1         Q.    The young lady seated to your left
 2   just marked your CV as Plaintiff's Exhibit 1.
 3   And it appears to be seven pages in length.  Is
 4   this a current and updated copy of your
 5   professional resume otherwise known as a
 6   curriculum vitae?
 7         A.    Yes, it is.
 8         Q.    What is your current title or
 9   position here at University Hospitals?
10         A.    Assistant professor of medicine.
11         Q.    Do you teach at the medical school?
12         A.    Yes, I do.
13         Q.    What level students do you teach?
14         A.    First and second years in the school
15   and any third and fourth years during their
16   clinical rotations.
17         Q.    What do you teach?
18         A.    Medicine, infectious diseases.
19         Q.    What percentage of your professional
20   time is spent teaching versus hands-on patient
21   care?
22         A.    About 65 percent of my time is
23   hands-on patient care and teaching varies
24   depending on student rotations -- basically on
25   student rotations and time availability between
0023
 1   rounding and service time.
 2         Q.    Do you have an area within
 3   infectious disease that you have a particular
 4   interest in?
 5         A.    I do half HIV and half infectious
 6   diseases.  I see everything, so I don't know
 7   that there is one particular area.  Prosthetic
 8   joints I do a lot of, but I don't do research in
 9   it.
10         Q.    Do you have a research topic, HIV
11   research topic that you work on?
12         A.    Not in any formal capacity.
13         Q.    Have you written anything in any
14   peer reviewed journals that has anything to do
15   with the issue of infectious endocarditis?
16         A.    I don't believe so.
17         Q.    In your teaching, do you lecture on
18   bacterial endocarditis, acute, subacute
19   bacterial endocarditis or any of the bacteremias
20   that can impact the heart?
21         A.    No, I have not.
22         Q.    Are you board certified in
23   infectious disease?
24         A.    Yes, I am.
25         Q.    And you are also board certified in
0024
 1   internal medicine?
 2         A.    Yes, I am.
 3         Q.    I take it you were successful the
 4   first time on both attempts?
 5         A.    Yes, I was.
 6         Q.    Congratulations.
 7         A.    Thank you.
 8         Q.    Have you reviewed any medical
 9   literature concerning the subject matter of
10   bacterial endocarditis as it relates to this
11   case?
12         A.    No, I have not.
13         Q.    Are there any guidelines that you
14   consider to be reasonably reliable as it relates
15   to the criteria for identifying a patient as
16   having risk factors for developing endocarditis?
17         A.    Can you rephrase that?
18         Q.    Probably not, but I'll try.
19               Do you follow any national
20   guidelines or protocols as it relates to signs
21   or symptoms that you look for in terms of
22   considering a patient as having an infectious
23   endocarditis?
24               Are you still not with me on the
25   question?
0025
 1         A.    I'm just not sure there are any
 2   guidelines per se that delineate exactly how to
 3   approach somebody to diagnose it.  It's more of
 4   a clinical diagnosis.
 5         Q.    Are you familiar with the Duke
 6   criteria?
 7         A.    Those are criteria for diagnosis,
 8   they are not guidelines to follow in evaluating
 9   someone for endocarditis.
10         Q.    Well, do you follow the Duke
11   criteria for diagnosing endocarditis?
12         A.    Yes.
13         Q.    Do you also follow the --
14         A.    We use them as guidelines.
15   Guidelines are not definitive ways to treat
16   patients; they are simply guidelines.
17         Q.    So you don't necessarily need to
18   have the Duke criteria, the major or minor
19   criteria to consider a patient as possibly
20   having endocarditis?
21         A.    Like I said, we use them as
22   guidelines.  They are very well -- I don't know
23   how to describe it.  I mean, there are certainly
24   people that have all of them; there are people
25   that have a few of them, but you look at a
0026
 1   patient clinically as well, so --
 2         Q.    Are there other guidelines that you
 3   use in your practice as a tool in addition to
 4   the Duke criteria?
 5         A.    That's hard for me to answer because
 6   I look at a patient clinically more than
 7   checking off a list of findings that fall on any
 8   list.
 9         Q.    What about the working party for the
10   British Society BSAC, the Antimicrobial
11   Chemotherapy Society?
12         A.    I'm not familiar with those
13   guidelines.
14         Q.    What about the American Heart
15   Association recommendations, do you follow the
16   American Heart Association recommendations in
17   terms of treating a patient for suspected
18   bacterial endocarditis?
19         A.    Do I follow the guidelines?  I
20   follow our recommendations of our IDSA and those
21   guidelines if I know somebody has endocarditis.
22         Q.    You said IDSA?
23         A.    Infectious Disease Society of
24   America.  I'm sorry.
25         Q.    And they set forth certain treatment
0027
 1   protocols for a patient that has bacterial
 2   endocarditis?
 3         A.    I believe it's in conjunction with
 4   the American -- the cardiology.
 5         Q.    The American Heart --
 6         A.    Yeah, the American Heart
 7   Association.
 8         Q.    I'm going to have you define a
 9   couple terms for me.
10         A.    Okay.
11         Q.    Infectious endocarditis.
12         A.    Infectious endocarditis is
13   inflammation of -- inflammation of the cardiac
14   structures, heart valves, so on.  It could be
15   infectious related, could be not infectious
16   related, but infectious disease endocarditis is
17   inflammation or destruction of the heart valve
18   due to an infectious organism.
19         Q.    Is the term infectious endocarditis
20   and bacterial endocarditis often used
21   interchangeably?
22         A.    Yes.
23         Q.    Do you use them interchangeably or
24   do you prefer one term?
25         A.    Interchangeably.
0028
 1         Q.    What is the difference between
 2   subacute bacterial endocarditis and acute
 3   bacterial endocarditis?
 4         A.    The rapidity of onset essentially.
 5         Q.    In order to fall in the category of
 6   subacute endocarditis, what type of rapidity do
 7   you need to see to distinguish that from acute
 8   bacterial endocarditis?
 9         A.    Over periods of maybe weeks to
10   months versus days to hours.
11         Q.    So if Mr. Zerbian in fact had
12   bacterial endocarditis back in September when he
13   was at University Hospitals, the fact that it
14   wasn't diagnosed until January the following
15   year, hypothetically, if he had it at this
16   point, would that fall within the category of
17   subacute bacterial endocarditis as opposed to
18   acute bacterial endocarditis?
19               MR. TREU:  Objection.  Go ahead.
20         A.    Can you rephrase it?
21         Q.    Sure.  If, in fact, what Mr. Zerbian
22   had in terms of a bacteremia was a form of
23   infectious endocarditis back in September, but
24   it wasn't diagnosed and didn't manifest itself
25   until he was seen in the emergency room at
0029
 1   Geauga and then had the diagnosis of the mitral
 2   valve injury in January of '06, would that fall
 3   more in the classification of subacute bacterial
 4   endocarditis as opposed to acute bacterial
 5   endocarditis?
 6         A.    Based on a time line, it would be
 7   subacute.  But I must interject that I do not
 8   believe he had endocarditis in September of '05
 9   because he did not have by our definition a
10   bacteremia in 9-05.
11         Q.    I'm going to talk about that in
12   terms of bacteremia and the treatment that he
13   was provided in a moment.
14               But assuming hypothetically he did
15   have a bacteremia -- and I understand your
16   opinion is that he didn't -- but assuming that
17   he did, have you seen patients that have had a
18   bacteremia that has been suppressed by
19   antibiotic treatment and extends over a three or
20   four month period before they wind up having the
21   kind of either mitral valve or other
22   endocarditis symptoms that cause them to become
23   acutely ill and hospitalized?
24         A.    I can't recall one way or the other
25   time lines from previous patients.
0030
 1         Q.    Have you personally treated patients
 2   that had subacute bacterial endocarditis?
 3         A.    In the past, yes.
 4         Q.    How long in the past would that be?
 5   Residency or --
 6         A.    During my attending-ship,
 7   fellowship, residency, yes.
 8         Q.    How long have you been an attending?
 9         A.    Seven years.
10         Q.    Before that your fellowship lasted
11   how long?
12         A.    Three years.
13         Q.    And then it would take us back to
14   your residency, which was?
15         A.    Three years.
16         Q.    Okay.  Was your fellowship at UH or
17   was it at The Cleveland Clinic?
18         A.    University Hospitals.
19         Q.    So you did your residency at The
20   Cleveland Clinic and then came over to UH, did
21   your fellowship, and then have been an attending
22   here for the last seven years?
23         A.    Yes.
24         Q.    Thank you.  So in terms of managing
25   a patient with subacute endocarditis from the
0031
 1   inciting event -- strike that.
 2               How in your experience is bacterial
 3   endocarditis diagnosed?
 4         A.    Well, serial blood cultures or, you
 5   know, repetitive positive blood cultures,
 6   echocardiographic evidence of valvular
 7   destruction, obviously clinical findings on
 8   physical examination other than heart murmur,
 9   and then elevated white count and such. However,
10   that doesn't put you in the diagnosis of
11   endocarditis.  It's just present because there
12   is infection, because of the endocarditis being
13   present.  That's pretty much it.
14         Q.    Okay.  If you think of any others as
15   we go along, you can jump in.
16               In terms of the time line as you
17   think back on patients that you have had that
18   have had subacute bacterial endocarditis and
19   have gone back and looked at their clinical
20   history leading up to the diagnosis, what period
21   of time was the patient developing symptoms from
22   onset to the time of diagnosis?  What is the
23   longest period of time that you have had?
24         A.    I can't recall exactly the longest
25   period, but it's usually -- the longest period
0032
 1   of time I can't recall, but it's typically not
 2   months; it's maybe a week, a week or so.
 3         Q.    Are you suggesting that from a
 4   pathophysiologic standpoint it's not possible to
 5   have a bacteremia that exists that is not
 6   appropriately treated or recognized that
 7   ultimately develops into an endocarditis and
 8   have that stretch out over months?
 9         A.    I'm not saying that.  You asked me
10   what my personal experience has been and that's
11   what my personal experience has been.
12         Q.    Okay.  And so that we are clear,
13   while your experience has been weeks as opposed
14   to months, you do recognize in the literature
15   that there are cases that are documented that
16   are weeks to months from onset of initial
17   markers, perhaps signs or symptoms to the
18   ultimate diagnosis of endocarditis?
19               MR. TREU:  Objection.  Go ahead.
20         Q.    Is that a fair statement?
21         A.    Yes.
22         Q.    In your experience, are there
23   certain patients that are at increased risk of
24   developing bacterial endocarditis over other
25   patients?
0033
 1         A.    Are we talking about Mr. Zerbian?
 2         Q.    No.  We are talking in general.
 3         A.    Okay.
 4         Q.    Let me help you out.
 5         A.    I'm trying to decide whether I'm
 6   being asked questions as an expert witness
 7   versus as a person involved in Mr. Zerbian's
 8   care.
 9         Q.    Well, the reason I ask you these
10   questions is because obviously people at the
11   hospital, Dr. Ashwath, as the hospitalist, and
12   the residents were looking to you as the
13   attending infectious disease doctor to help try
14   to put the pieces of the puzzle together on this
15   particular patient.
16               So I realize that you were a
17   treating doctor, but I do want to get an
18   understanding of what your knowledge is and
19   that's why I'm asking these general questions as
20   well.
21         A.    I understand that they are general
22   questions, but when you make the reference that
23   they were asking me for my overall knowledge of
24   infectious disease, they were asking for this
25   particular thing; was his back infected at the
0034
 1   time or not.
 2               MR. TREU:  This was not a bacterial
 3   endocarditis.
 4         A.    It was not a bacterial endocarditis
 5   issue, I did not think it was a bacterial
 6   endocarditis issue, and that's why I'm reluctant
 7   to keep answering questions about that when I
 8   was not involved in that aspect of care.
 9         Q.    I understand that you didn't think
10   that it was a bacterial endocarditis and that
11   you were looking at a potential infection
12   involving the disk space, whether it be
13   diskitis, osteomyelitis, or just an inflammatory
14   condition; true?
15         A.    True.  If I would've thought that he
16   had bacterial endocarditis at the time or if I
17   was concerned about it, I certainly would have
18   brought it to their attention and asked them to
19   perform procedures.  So it's not like I was
20   focusing on just this issue.
21         Q.    All right.  And having said that,
22   let me go back to -- the only reason I ask you
23   that is because ultimately Mr. Zerbian did have
24   a diagnosis of bacterial endocarditis.  So I
25   just want to understand in general are -- I'll
0035
 1   help you out a little bit -- are
 2   immunosuppressed patients at a higher risk if
 3   they develop a bacteremia of having that
 4   bacteremia affect the heart as opposed to
 5   nonimmunosuppressed patients?
 6         A.    It's possible.
 7         Q.    That's certainly something you would
 8   consider as something of a risk factor; correct?
 9         A.    Immunosuppression is a very broad --
10   immunosuppression in what way for Mr. Zerbian?
11         Q.    Well, Mr. Zerbian was diabetic.  Did
12   that increase his risk factor for developing a
13   diskitis?
14         A.    If a person does not keep their
15   blood sugars in control, they can be at risk for
16   any other types of infections simply because in
17   situations where blood glucose control is poor,
18   white blood cells don't function as well as they
19   do in a diabetic who maintains their blood
20   sugars in a controlled fashion.
21         Q.    Can we agree that in a diabetic that
22   does not have good management of their glucose,
23   that they are at greater risk of bacteremias
24   that can create, that can lead to a diskitis
25   and/or an osteomyelitis over a diabetic patient
0036
 1   who has good glucose control?
 2               MR. TREU:  I'm going to object just
 3   because you continue to go far afield with her
 4   involvement of the case, Howard.
 5               MR. MISHKIND:  Your objection is
 6   noted.  I think it's very relevant to this case.
 7               MR. TREU:  Relevant to her care and
 8   treatment.
 9               MR. MISHKIND:  Sure.
10               MR. TREU: Which is why she is here.
11   Okay.
12               MR. MISHKIND:  Right.  Absolutely.
13         Q.    And I'm asking about diskitis and
14   osteomyelitis and whether or not a patient that
15   is well controlled or doesn't have diabetes, is
16   that patient at a lower risk of developing an
17   infection such as diskitis or osteomyelitis
18   compared to a patient who has diabetes and has
19   high blood sugars as Mr. Zerbian did?
20         A.    They are at higher risk for
21   infection than somebody who is more in control.
22         Q.    Okay.  That works.
23         A.    If they are bacteremic.
24         Q.    If they are bacteremic, are they
25   essentially at higher risk of any type of a
0037
 1   blood-borne type of infection, systemic
 2   infection, because of their being a diabetic?
 3         A.    Bacteremia by definition is a
 4   systemic infection, so that's --
 5         Q.    It's sort of a truism what I just
 6   said or an oxymoron maybe?
 7         A.    Right.
 8         Q.    I'll accept the oxymoron.  Let me
 9   rephrase it.
10               A patient that has diabetes, is that
11   patient at increased risk of developing
12   bacterial endocarditis compared to a patient
13   that is not diabetic, in general?
14               MR. TREU:  Again, you are asking
15   about bacterial endocarditis.
16               MR. MISHKIND:  Correct.
17               MR. TREU:  That's not why she was
18   seeing the patient.
19               MR. MISHKIND:  I understand.
20               MR. TREU:  That's as far as we are
21   going to go with that.
22               MR. MISHKIND: Go ahead.
23         A.    I'm trying to figure out how to
24   phrase it.  Can you just paraphrase for me?
25         Q.    Sure.  Based upon your knowledge,
0038
 1   training, and experience as an infectious
 2   disease doctor, when faced with a patient that
 3   has bacteremia and has diabetes, is that patient
 4   at increased risk of developing endocarditis
 5   compared to a patient who is not diabetic?
 6         A.    From just having a simple
 7   bacteremia -- I mean, it's not a simple, there
 8   is not a simple answer to that question, because
 9   not every diabetic, not every normal person that
10   has bacteremia gets endocarditis regardless of
11   their glucose control.
12               Prolonged, profound bacteremia, the
13   longer you have bacteremia increases your risk
14   of developing endocarditis.  That's why I'm
15   having a problem saying yes or no because it's
16   not a yes or no answer to that question.
17         Q.    In an indirect manner you answered
18   my question by that answer, so I'll accept that.
19   Thanks.
20               Were you aware when you consulted
21   with the team at UH that Mr. Zerbian had
22   previously had an echocardiogram that had shown
23   that he had borderline mitral valve prolapse
24   with redundant mitral leaflets and mild mitral
25   regurgitation?
0039
 1         A.    I don't recall that I was.
 2         Q.    In consulting with this patient who
 3   admittedly had back pain and you were concerned
 4   about whether or not the back pain and his
 5   markers were representative of an infection in
 6   the back versus an inflammatory condition in the
 7   back, if you were aware that he also had
 8   structural abnormalities involving the mitral
 9   valve, involving mitral valve prolapse, mitral
10   valve regurgitation, would you have considered
11   within your differential the potential of the
12   patient if not appropriately treated for the
13   infection in his back that he could develop a
14   bacterial endocarditis?
15               MR. TREU:  Object.
16         A.    Can I paraphrase what I think you
17   are asking?
18         Q.    Sure.  Absolutely.
19         A.    You are asking me if I thought he
20   had a back infection left untreated, could it go
21   on to cause an endocarditis?
22         Q.    Yes.
23         A.    I guess I'm just not sure.  Like I
24   said, again, I did not think that he even had a
25   true bacteremia.  I did not think at the time, I
0040
 1   could not rule out one way or the other whether
 2   he had a back infection; therefore, I would not
 3   have put him at higher risk for any heart
 4   infection.
 5         Q.    Is Unasyn used to treat diskitis and
 6   osteomyelitis?
 7         A.    It can be.
 8         Q.    Well, we know that the bacteria that
 9   had been cultured on him was a strep viridans;
10   correct?  The blood culture.
11               MR. TREU:  You mean, the one out of
12   four?
13         A.    It was obtained in one out of four
14   blood culture bottles.
15         Q.    Right.  Exactly.
16         A.    Which on our impression it was felt
17   to be a skin contaminant because strep viridans
18   can be a normal skin flora and one out of four
19   bottles is often a skin contaminant because
20   it's simply picked up as you are putting the IV
21   into the arm.
22         Q.    Now, the initial blood cultures that
23   were done, initially one out of the two showed
24   positive for strep viridans; correct?
25               There were subsequent blood cultures
0041
 1   done on September 12th.
 2         A.    I'm just familiarizing myself with
 3   the dates.
 4         Q.    As you are looking at it, I'll tell
 5   you the initial blood cultures --
 6         A.    9-6, one out of four strep viridans.
 7         Q.    Okay.  Do you know why there were
 8   additional blood cultures drawn on September
 9   12th, drawn by or ordered by Dr. Williams on
10   this patient?
11         A.    I know why we do them.  Typically
12   it's once you find one positive you do a
13   verification blood culture or another set of
14   additional blood cultures.
15         Q.    Okay.  Now, it looks like after the
16   initial blood culture on September 6th, the
17   patient was started on Unasyn.  And that would
18   certainly be an appropriate antibiotic to treat
19   a strep viridans; correct?
20         A.    Unasyn would treat strep viridans.
21         Q.    And if this wasn't a contaminant and
22   it was a true bacteremia, strep viridans would
23   be treated -- strep viridans is sensitive to
24   Unasyn; true?
25         A.    Yes.
0042
 1         Q.    Okay.  Now, have you had situations
 2   in your practice where a bacteria was treated
 3   with the appropriate antibiotic but wasn't
 4   treated for the appropriate length of time?
 5         A.    In what I do?  I mean, in my
 6   personal patients or have I seen patients where
 7   that's been the case?  I guess I don't
 8   understand your question.
 9         Q.    Have you seen cases where the
10   patient is cultured, bacteria is determined, the
11   appropriate antibiotic that that bacteria is
12   sensitive to is started, but where things go
13   wrong is that the patient isn't continued on the
14   antibiotic for the appropriate length of time?
15         A.    Well, length of time of antibiotic
16   therapy depends on the diagnosis that you are
17   treating.  So the length of therapy could vary
18   depending on what the underlying condition you
19   were treating is, obviously, and clearly whether
20   if you think a bacterial culture is real or
21   contaminant.
22         Q.    If, in fact, the culture is real as
23   opposed to contaminant and you have a strep
24   viridans and you start the patient on Unasyn for
25   a potential disk space infection, whether it be
0043
 1   diskitis or osteomyelitis, can we agree that the
 2   standard regimen of treatment to eradicate that
 3   bacteria is four to six weeks?
 4         A.    Yes.
 5         Q.    Can we agree that if the strep
 6   viridans was not a contaminant and it was, in
 7   fact, a bacteremia, that seven days of Unasyn on
 8   this patient would only suppress the bacteremia
 9   but it wouldn't eradicate the bacteria?
10         A.    It could suppress a disk space
11   infection.  Bacteremia it may clear, but the
12   disk space infection may stay there, yes.
13         Q.    And once that patient is taken off
14   the antibiotic, in your experience, as an
15   infectious disease doctor, I presume you have
16   seen cases where the antibiotic is stopped short
17   of the four to six week period and the
18   infection -- it's like putting a band-aid over
19   an open wound -- the infection then will
20   continue and can develop into a worse strain
21   than one had initially?
22               MR. TREU:  Objection.  Go ahead.
23         A.    Well, the phrase worse strain --
24         Q.    A poor term?
25         A.    It's a poor term.
0044
 1         Q.    I have done that every once and
 2   awhile.  Mr. Treu will tell you that.
 3               Just so we can make it in simple
 4   terms, if you put the patient for the type of
 5   bug that's cultured on the right antibiotic and
 6   don't treat the patient for the appropriate
 7   regimen of four to six weeks, stop them after
 8   one week, and then test the patient, you may get
 9   a negative blood culture; correct?
10         A.    Correct.
11         Q.    But that doesn't mean that the
12   patient isn't still bacteremic; correct?
13         A.    Well, if a blood culture is negative
14   at that point in time there is not bacteria in
15   the blood.
16         Q.    Go ahead.
17         A.    I think you are getting at there may
18   still be bacteria in the back, not bacteremia.
19         Q.    Is there any benefit of taking a
20   blood culture, a repeat blood culture and
21   relying on a negative blood culture to rule out
22   a disk space infection after you have started
23   the patient on one week of Unasyn?
24         A.    Well, for this particular -- can I
25   reference this particular case?
0045
 1         Q.    Please.
 2         A.    Because I can't just answer
 3   generally yes or no.
 4         Q.    Okay.
 5         A.    We suspected that he had a skin
 6   contaminant.  They did the repeat blood culture
 7   to see if it was a persistent blood stream
 8   infection, to see if the bacteremia persisted,
 9   because not everybody that has early, you
10   know -- and he received antibiotics, bloodstream
11   had cleared, so we stopped it based on, or they
12   stopped it based on the fact that we attributed
13   this to skin contamination because only one in
14   four cultures were positive, which is what we
15   typically do if we have somebody that we give
16   antibiotics to while we are looking for their
17   blood culture results to become positive.  If
18   it's a contaminant, we say, you know, a week is
19   definitely enough and often it's even a shorter
20   period depending if we think it's a contaminant
21   and then we follow, we do subsequent blood
22   cultures for bloodstream infection, whether it's
23   primary bloodstream infection or the source.
24   Knowing at that time whether there is a source
25   somewhere else is often used based on when we
0046
 1   look for blood cultures again, which is why we
 2   do follow-up blood cultures.
 3         Q.    Okay.  But can we agree that if
 4   there is reason to believe that the blood
 5   culture was positive and not a skin contaminant,
 6   that starting the patient on one week of Unasyn
 7   and then doing a repeat blood culture at that
 8   point is really of no therapeutic benefit
 9   because you have already got the positive blood
10   culture before you started the patient on the
11   antibiotic?
12               What I'm getting at is, you are much
13   better off determining whether or not the
14   patient has a positive blood culture with a
15   bacteria as opposed to a skin contaminant before
16   they are started on the antibiotic as opposed to
17   doing the blood culture after they have already
18   been on the antibiotic for a week; isn't that an
19   accurate statement?
20               MR. TREU:  Objection to the form of
21   the question.
22         A.    Yeah, I mean, it's just -- could you
23   rephrase it so I'm understanding it correctly?
24         Q.    Sure.  Do you normally take blood
25   cultures on a patient who has a positive blood
0047
 1   culture one week after you have started them on
 2   medication like Unasyn?
 3               MR. TREU:  Objection.
 4         A.    Yes and no.
 5         Q.    The fact that the patient's blood
 6   culture was negative on September 12th, if the
 7   blood culture was positive and was not a skin
 8   contaminant on September 6th, would that have
 9   been a reason in your professional opinion to
10   stop the Unasyn?
11               Do you follow me now?  You are still
12   looking at me with somewhat of a glazed look.
13         A.    They did the blood cultures on the
14   6th, started him on antibiotics.
15         Q.    Yes.
16         A.    They repeated them on the 12th.  And
17   your question for me about the blood cultures on
18   the 12th is what?
19         Q.    If the blood culture comes back and
20   it's negative, the patient has been on one week
21   of antibiotic therapy, is it safe to stop, in
22   your professional opinion, to stop the Unasyn at
23   that time?
24         A.    If you suspect that it's a skin
25   contaminant, yes.
0048
 1         Q.    And if you don't suspect that it's a
 2   skin contaminant, what would be the answer?
 3         A.    In this type of situation, we often
 4   stop them because we don't know whether it's --
 5   I mean, if we are not sure we often repeat them,
 6   stop antibiotics and repeat them to verify if
 7   there was truly a bacteremia there or not.
 8               And he had a fever, they drew blood
 9   cultures, they started antibiotics, which is,
10   you know, if somebody is truly infected you
11   don't want to leave them without antibiotics, so
12   it's very often that's exactly how it's
13   practiced.
14               When it comes back one out of four,
15   if we suspect skin contaminant, if someone is
16   clinically better, afebrile, no white count,
17   clinically doing well, we say we suspect this is
18   a skin contaminant and we stop antibiotics,
19   because if a week later or whatnot they develop
20   high fevers or so on, then we repeat blood
21   cultures to clarify this situation.
22               It happens all the time, mainly
23   because we do not like to delay treatment of
24   infection if we are concerned something is going
25   on if someone strikes a fever.  We as ID people
0049
 1   see that a lot.
 2         Q.    Okay.
 3         A.    If more blood cultures had been
 4   positive, like if it would have been four out of
 5   four bottles, true bacteremia, it would've had
 6   us on a different line.  He wouldn't have had
 7   antibiotics stopped after seven days.
 8         Q.    Okay.
 9         A.    So based on this finding of one out
10   of four bottles, suspected it was a contaminant,
11   stopping antibiotics and repeating a blood
12   culture at that time, and if they develop
13   another fever or so on, repeating and doing
14   further investigation then is what is done all
15   the time.
16         Q.    Hypothetically, if it had been four
17   out of four or two out of four that were
18   positive for strep viridans, would you have
19   stopped the Unasyn after seven days?
20               MR. TREU:  Objection.
21         A.    It depends on what we are -- I
22   usually -- I would say no.  However, if we are
23   taking that opportunity, using that to
24   investigate something else, there have been
25   times where we say, stop, let's get a culture of
0050
 1   something else and move forward.
 2               But typically we do 14 days and that
 3   14 days is a number determined by, not by
 4   clinical studies, not by anything.   It's a
 5   number we kind of have come up with in years
 6   over infectious disease that we treat
 7   bloodstream infections for 14 days.
 8         Q.    Are the subsequent blood cultures as
 9   reliable as the initial blood cultures, again
10   assuming they are not skin contaminants, once
11   the patient has been on Unasyn for seven days?
12               What I'm getting at and what I have
13   learned, right or wrong, is that it's not
14   unusual in a patient who has a bacteremia that
15   is blood culture positive for strep viridans to
16   be on the appropriate antibiotic for seven days,
17   Unasyn, and then if a subsequent blood culture
18   is taken and it's normal, that shouldn't cause
19   the clinician to feel as if it's safe to take
20   the patient off the antibiotic because that
21   subsequent blood culture is not as reliable
22   because the patient already has antibiotics on
23   board.  Do you follow my explanation?
24         A.    I believe so.  Can I paraphrase or
25   reiterate?
0051
 1         Q.    Absolutely.  I want to make sure you
 2   understand it.
 3         A.    If you have someone with a high
 4   grade bacteremia, four out of four, not a skin
 5   contaminant, and you treat them for, you said,
 6   seven days -- we wouldn't treat seven days if we
 7   suspected true bacteremia, it's more like 14 --
 8   we often do what we call surveillance blood
 9   cultures one to two weeks after or based on
10   symptoms.
11               So if they get a fever three days
12   after stopping antibiotics, we check blood
13   cultures then.  But we often do surveillance
14   blood cultures, not 100 percent of the time, but
15   a large portion of the time we will do
16   surveillance blood cultures depending on the
17   patient's situation to just assure clearance.
18         Q.    In this case --
19         A.    Was that what you are asking?
20         Q.    In this case September 6th was the
21   first blood culture and September 12th was the
22   second set of blood cultures, so it was only
23   actually six days later.
24               If this was a true bacteremia as
25   opposed to a skin contaminant, would there have
0052
 1   been any indication to do a repeat set of blood
 2   cultures on September 12th, six days later?
 3         A.    They were probably just doing a
 4   follow up.  I can't say from 9-6.  I got
 5   involved 9-15.  They were drawing a second set
 6   based on the 9-6 culture.
 7         Q.    Is that standard practice if you
 8   know that you have a bacteremia to take another
 9   set of blood cultures only six days or seven
10   days into the antibiotic regimen?
11         A.    I don't know that it's standard
12   practice.  It's done.
13               MR. TREU:  Objection.
14         Q.    I'll accept that it's done.  And if
15   it's done and the culture comes back, three sets
16   come back and there is no growth, the blood
17   cultures are negative, is it reasonable and
18   acceptable to take the patient off the Unasyn at
19   that time?
20               MR. TREU:  Objection.
21         A.    Well, they are assuming this is skin
22   contaminant, so if you are going on the
23   assumption that it's skin contaminant, which
24   with one out of four bottles, that's a
25   recognized indication of skin contamination in a
0053
 1   blood culture bottle, then it's perfectly fine
 2   to stop antibiotics after a week.
 3               Whether they check blood cultures on
 4   the 12th or don't check blood cultures on the
 5   12th, if they are basing this on the assumption
 6   that this is a skin contamination, it's
 7   perfectly appropriate to stop antibiotics
 8   without that 9-12 blood culture.
 9               MR. TREU:  Howard, hold on.  It's
10   fair that I tell you we need to be done at noon.
11               (Discussion off the record.)
12         Q.    Show me where in the notes one out
13   of four of the cultures were strep viridans and
14   the other three were negative.
15         A.    Well, one out of four is one out of
16   four bottles.  So if one out of four is positive
17   the other three are negative.
18         Q.    Just so I understand the
19   mechanics -- because I fortunately never had to
20   draw blood cultures, obviously -- these are
21   vials?
22         A.    Uh-huh, yes.
23         Q.    Like I'm sitting in my doctor's
24   office having blood work done, and these are
25   four vials so that the blood is going to be
0054
 1   cultured; four vials are drawn at the same time
 2   from whatever site; correct?
 3         A.    Yeah.  They usually drew two vials
 4   from one site and two vials from the other if we
 5   are able to get them.
 6         Q.    Do you know in this case where the
 7   vials were drawn from?
 8         A.    I do not know.
 9         Q.    Is there any way by looking at the
10   record to determine the source of the -- I don't
11   need you to do it -- but does it normally
12   indicate where the blood is drawn from?
13         A.    It's variable.
14         Q.    In any event, would it be reasonable
15   to draw the four vials from the same site or do
16   you normally mix it up, two from one site and
17   two from another site?
18         A.    Normally it's two from one site, two
19   from the other site.  If someone has a difficult
20   blood stick or whatnot, sometimes it requires
21   them to get it out of the same site, but --
22         Q.    And is this usually in an
23   antecubital?
24         A.    A peripheral vein.
25         Q.    Would it be reasonably acceptable to
0055
 1   get all vials from the same vein, the same arm,
 2   and rely upon those four vials for purposes of
 3   doing the blood culture?
 4         A.    Do we do that?
 5         Q.    Yes.
 6         A.    Is that what you are asking; do we
 7   do blood cultures in the same arm?
 8         Q.    That's what I think I asked, yes.
 9         A.    Okay.  Well, we do blood cultures in
10   the same arm.
11         Q.    And in this particular case, the
12   fact that one of the sets had the strep
13   viridans, and according to your interpretation
14   the other three were negative?
15         A.    Two sets of blood cultures is four
16   vials.  So one set of blood cultures has nothing
17   growing in them and the other set had one bottle
18   that was growing strep viridans.  That's what
19   one out of four means.
20         Q.    So each set of blood cultures had
21   two vials?
22         A.    Two bottles, yes.
23         Q.    Were the blood cultures done at
24   different times?
25         A.    I do not know.  I would have to look
0056
 1   through the lab charts.
 2         Q.    How do we know -- is the normal
 3   protocol when you do a blood culture that you do
 4   two sets?
 5         A.    Yes.
 6         Q.    And so two vials are drawn and then
 7   what distinguishes set number one from set
 8   number two?
 9         A.    Like the label?
10               MR. TREU:  That's what I was going
11   to say.
12         A.    It's the labeling.
13         Q.    I may be making it more difficult.
14   But if there is two sets, why are there two sets
15   drawn to begin with when you are doing a blood
16   culture?
17         A.    To increase your yield.
18         Q.    And why does set number one have to
19   have two vials as opposed to just having one set
20   with four vials?  Do you see what I'm asking?
21         A.    Each set of blood cultures has two
22   bottles.  One is what we call an aerobic bottle
23   and the other is an anaerobic bottle.  And so
24   one set of blood cultures draws blood that is
25   sent to the microbiology lab and grown
0057
 1   aerobically and anaerobically. That's one set.
 2   And then another set is taken or sent that is
 3   the same two sets of blood culture bottles.
 4   That's why a set is two bottles; aerobic vial,
 5   anaerobic vial, per set.
 6         Q.    Okay.  Are they both sent to the
 7   same location?
 8         A.    Yes.
 9         Q.    Are they usually drawn at the same
10   time?
11         A.    Yeah, each set is usually drawn.
12   Like the aerobic vial, they put a needle in the
13   vein, the container has the connecter, they put
14   the aerobic vial on, pull it off, put the
15   anaerobic vial on in no particular order.  The
16   second set is done the same way and so they are
17   the same.
18         Q.    All right.  If it was felt that
19   Mr. Zerbian's blood cultures were -- it was a
20   skin contaminant, why was he started on Unasyn
21   to begin with?
22         A.    Well, they started him on Unasyn the
23   day they drew the blood cultures so they did not
24   even have the results of the blood cultures at
25   that time.
0058
 1               When somebody has a fever, if we
 2   draw cultures, we start people on antibiotics
 3   pending the results of cultures, and if their
 4   skin contaminants are not felt to be, if they
 5   don't have an infection somewhere, then we stop
 6   them.  But we do that to cover the time period
 7   that it takes the cultures to grow.
 8         Q.    Of what significance in
 9   Mr. Zerbian's case was the fact that his urine
10   cultures were positive for enterococcus?
11         A.    He had enterococcus in his urine;
12   what's the significance?
13         Q.    Right.
14         A.    He had a urinary tract infection.
15         Q.    Is there any -- I'm sorry, I may
16   have cut you off.
17         A.    I guess that's -- I'm trying -- just
18   that he had enterococcus in his urine.
19         Q.    Is there any relationship at all to
20   that and a strep viridans that isn't a skin
21   contaminant or are they completely different,
22   comparing apples and oranges?
23         A.    Completely different.
24         Q.    Would this bacteria in the urine
25   potentially cause any type of a diskitis, an
0059
 1   osteomyelitis, or an endocarditis?
 2         A.    No.  That pathogen or the one they
 3   got out of his -- I guess I'm --
 4         Q.    The pathogen that they got out of
 5   his urine.
 6         A.    Are you asking can the enterococcus
 7   in general cause bloodstream infection or
 8   endocarditis?
 9         Q.    Yes.
10         A.    Yes, that bacteria is involved in
11   all of those conditions.
12               Can I say, can cause all those
13   conditions.  It's not always involved in those
14   conditions.
15               MR. TREU:  That's a good
16   clarification.
17         Q.    In your experience, I think you told
18   me that you have treated patients with bacterial
19   endocarditis?
20         A.    Yes.
21         Q.    And have you been able to treat
22   those patients with endocarditis so as to avoid
23   permanent heart valve damage?
24         A.    I have treated both medically and
25   others as well that have had to go on to
0060
 1   surgery, yes.
 2         Q.    So is it fair to say that not all
 3   patients that develop bacterial endocarditis
 4   have to have valve repair or valve replacement?
 5         A.    It depends on the organism involved,
 6   depends on the extent of involvement, but not
 7   everybody has to have surgery.
 8         Q.    Is it fair to say that the earlier
 9   bacterial endocarditis is diagnosed, the greater
10   the likelihood that permanent heart valve damage
11   will be prevented?
12         A.    In some situations earlier treatment
13   may prevent, but not all.
14         Q.    I'm not suggesting all.  But as a
15   general sense, just like in cancer, the patient
16   has a better prognosis the earlier it's
17   diagnosed.
18               In bacterial endocarditis, does the
19   patient have a better prognosis with regard to
20   heart valve damage the earlier it's diagnosed?
21               MR. TREU:  Objection.
22         A.    I mean, I don't want to say it's a
23   trick question on your part.
24               MR. TREU:  Yes, it is.
25               MR. MISHKIND: No, it isn't.  It's a
0061
 1   real simple question.
 2         Q.    Is it better to diagnose bacterial
 3   endocarditis early rather than late?
 4               MR. TREU:  Objection.
 5         A.    Stated as such, yes.
 6         Q.    And in terms of preventing the
 7   likelihood of permanent heart valve damage, is
 8   there a greater probability that a patient with
 9   bacterial endocarditis diagnosed early will have
10   a better outcome in terms of injury or damage to
11   heart valve than a patient who is diagnosed
12   later in the course?
13         A.    I'm trying to think in my head.
14   Sorry.
15               (Pause.)
16         A.    I think you just asked me the same
17   thing you asked me before.
18         Q.    Can you answer the question?
19         A.    I would like the question read back.
20               MS. GORDON:  QUESTION:  And in terms
21   of the likelihood of permanent heart valve
22   damage, is there a greater probability that a
23   patient with bacterial endocarditis diagnosed
24   early will have a better outcome in terms of
25   injury or damage to heart valve than a patient
0062
 1   who is diagnosed later in the course?
 2         A.    Rereading it is easier.
 3               Yes, tissue destruction happens over
 4   time, so, yes.
 5         Q.    Can we agree, can you and I agree
 6   that a patient in a hospital that has fever and
 7   back pain is an epidural abscess until proven
 8   otherwise?
 9         A.    In regard to Mr. Zerbian?
10         Q.    No.  In general, within the
11   differential, should epidural abscess be
12   considered in a patient admitted to the hospital
13   that has fever and back pain?
14         A.    Yes, it's in the differential
15   diagnosis.
16         Q.    Did the gallium scan that was done
17   prior to your involvement but available to you,
18   did that rule out infection in Mr. Zerbian?
19         A.    Did it rule out infection?  No.
20         Q.    Okay.  And I'm just showing you a
21   copy of the gallium scan just to make it easy.
22               Were there any other diagnostic
23   studies that could have been done that would
24   have given the team treating this patient a
25   greater sense of ruling in or ruling out
0063
 1   infection in addition to the gallium scan?
 2         A.    Well, he had an MRI that essentially
 3   was very similar.  There is a lot of changes in
 4   there that are consistent with his known
 5   degenerative joint disease, known herniated
 6   disks, but inflammatory changes that are totally
 7   consistent with acute herniated disk, as well as
 8   could be infection, but they couldn't rule that
 9   out.
10               The only other -- in terms of what
11   they, themselves, could have done; yes.  He had
12   them done.  He had an MRI and he had a gallium
13   scan.
14         Q.    I want to talk for the remaining
15   time that you and I are together about the
16   September 15th note if you have it.
17         A.    Right.
18         Q.    It will probably come as no surprise
19   that I have some questions relative to the
20   reference in your note to an addendum dictation.
21         A.    Okay.
22         Q.    Can you explain that to me, please?
23         A.    I did not do that.  That's the
24   addendum to the discharge summary.
25         Q.    Okay.
0064
 1         A.    That's not my writing.
 2         Q.    And what addendum was there to the
 3   discharge summary?
 4         A.    Let's see if I can tell you.  From
 5   the discharge summary itself I cannot tell what
 6   was the original and what was the addition.  But
 7   the number on the bottom underneath where it
 8   says Williams, that 425070 is the reference
 9   number for the addendum.  Do you see it?
10         Q.    I do.
11               When I think of an addendum I
12   usually think of a separate document.  Isn't
13   that what you normally think of, as well?
14         A.    No.  I mean, the way the
15   transcriptionist did it, it may very well, I
16   don't know when --
17               MR. TREU:  It's got both numbers at
18   the bottom.
19         A.    It may very well have been they
20   dictated it and then, you know, ten minutes
21   later they go to recommendations and they just
22   added that in follow up.
23               There is no indication within, I
24   guess the paragraphs of the chart -- I mean, of
25   the discharge summary, that I can see where the
0065
 1   addendum is.
 2               And basically, the assumption that I
 3   made is since the addendum is after my
 4   consultation note that they addended it to
 5   include our recommendations.
 6         Q.    Just to be clear, there is no
 7   addendum that you specifically dictated.  Your
 8   ID attending note ends with two to three -- is
 9   that two to three?
10         A.    Second to third week.
11         Q.    Second to third week in October of
12   '05 and then your signature?
13         A.    Yes.
14         Q.    And then that's the last handwriting
15   that you would have made?
16         A.    Yes.
17         Q.    Now, in your note, you reference an
18   ESR of 52, which is the erythrocyte
19   sedimentation rate; right?
20         A.    Yes.
21         Q.    And that is a marker that oftentimes
22   is not necessarily specific or diagnostic, but
23   is helpful in looking at whether there is an
24   inflammatory and/or an infectious process;
25   correct?  It's a nonspecific finding?
0066
 1         A.    Yes, it's a nonspecific marker of
 2   inflammation.
 3         Q.    Okay.  And it also is a nonspecific
 4   marker in infection, as well; correct?
 5         A.    Infection is inflammation, so, yes,
 6   that's what we use it for.
 7         Q.    An ESR of 52 is elevated; correct?
 8         A.    Yes.
 9         Q.    Normal range would be ten?
10         A.    Ten to 20.  Range varies from lab.
11         Q.    But certainly that was an elevated
12   marker.
13               The CRP, which is the C-reactive
14   protein, explain to me how that correlates or
15   differs from a clinical standpoint, the
16   information that provides you compared to the
17   erythrocyte sedimentation rate.  What does this
18   give you that the erythrocyte sedimentation rate
19   doesn't?
20         A.    Again, it's another nonspecific
21   marker of inflammation.  The change is more --
22   less gradual than a sed rate.  Sed rates can
23   fluctuate, they can take a longer time to go
24   down.  Often, long after the CRPs are
25   normalized, the sed rates may still be elevated.
0067
 1   It changes more in correlation with improvement
 2   or inflammation of any cause.
 3         Q.    So we know that the patient still
 4   had, quote, inflammatory abnormal markers at the
 5   time that he was seen by you?
 6         A.    Yes.
 7         Q.    Which, coupled with everything else,
 8   caused you to say, can't rule out infection,
 9   can't necessarily put my fist down and say, this
10   man does have a disk space infection?
11         A.    Correct.
12         Q.    But you were concerned enough that
13   you wanted him to be closely watched wherever he
14   went; whether it was home, to another hospital,
15   or to be followed by a family physician;
16   correct?
17         A.    It could be repeated at some point,
18   yes.
19         Q.    And that's what you were trying to
20   communicate; that whomever it was that was going
21   to be following him, he needed to be watched
22   closely; correct?
23         A.    Well, in the time frame that I had
24   suggested, because I wanted him to follow up
25   with me, that in that period I routinely -- not
0068
 1   just in Mr. Zerbian -- if I'm worried about
 2   resolution of inflammation of any kind, we
 3   follow the sed rates, CRPs.  It's helpful.  We
 4   use it as a guide and it was to be drawn.  I
 5   wanted it drawn prior to him seeing me in two to
 6   three weeks.
 7         Q.    Okay.  And would it be reasonable
 8   that if this note that you dictated and the
 9   subsequent discharge summary that was prepared
10   was consistent -- strike that.
11               Can we agree that your clinical note
12   and the information contained in the discharge
13   summary as it relates to the follow up and the
14   repeating of the labs was consistent?
15         A.    I believe it was.  Let me just
16   verify.
17         Q.    Sure.
18         A.    This is consistent with what I wrote
19   with the exception at the time that I wrote this
20   I wasn't sure whether he was going home with his
21   wife or going to a facility.  They knew at the
22   time of their dictation that he was going to a
23   nursing home and indicated that in their
24   notation.
25         Q.    And would you expect as a consultant
0069
 1   that the information that you provide would be
 2   conveyed to the primary care people that would
 3   be following up on this patient; whether it be
 4   an attending, a nursing home, or another
 5   hospital?
 6         A.    Yes.  That's why it's in the gold
 7   form and on the discharge summary.
 8         Q.    Okay.  Now, at Heather Hill, did the
 9   patient receive -- wasn't a CRP and an
10   erythrocyte sedimentation rate performed on the
11   patient?
12         A.    I never received any.  I do not know
13   whether they drew them or not.
14         Q.    I have a copy of the records which
15   has a copy of the gold form and the gold form
16   says somewhere in here.
17               Please check weekly CBC, CRP and
18   ESR.  Any ID question should be called to
19   Dr. Lisgaris at your telephone number.  If
20   patient is febrile, call Dr. Lisgaris, BC -- I'm
21   not sure what BC --
22         A.    Probably because, maybe.
23         Q.    Probably.  Patient will need a
24   biopsy.  Fax results to -- and I have looked
25   through --
0070
 1               MR. MISHKIND:  And, Kris, just to
 2   save time, do you see in the labs a CRP or
 3   erythrocyte sedimentation?
 4               MR. TREU:  I haven't looked for it.
 5         Q.    I see a CBC but I don't see -- and
 6   maybe it would be easier if I just handed it to
 7   you, if you could look at the labs and let me
 8   know.
 9               While I'm going through this, it's
10   fair to say that when he was discharged from
11   University Hospitals, he was not on any
12   antibiotics; correct?
13         A.    Correct.
14         Q.    What's a pilot form, do you know?
15         A.    It's a pilot, it's a test, I think
16   like a beta testing kind of thing.
17         Q.    It references pilot form across a
18   lot of the documents.
19         A.    This thing?
20         Q.    Yeah.
21         A.    I think they were piloting this type
22   of, the note -- pilot projects are often like
23   testing, trying it in a small environment before
24   they launch it.
25               MR. TREU:  Prelaunch.
0071
 1         A.    Yeah, prelaunch.  It's merely a
 2   guess on my part.  I don't know.
 3               MR. MISHKIND: This appears to be the
 4   Heather Hill records.  In fact, this was the set
 5   of records that you sent to me last week.
 6               MR. TREU:  I hope it was longer than
 7   last week.
 8               MR. MISHKIND: Or two weeks ago,
 9   whatever.
10         Q.    If you would, let me just hand it to
11   you.  If you could look through and find the
12   labs and then if you could let me know whether
13   an erythrocyte sedimentation rate and a CRP were
14   drawn.
15               THE WITNESS: He was discharged when?
16               MR. TREU:  Discharged from the
17   hospital or Heather Hill?
18               MR. MISHKIND: From the hospital.
19               THE WITNESS: These are hospital
20   labs, these aren't Heather Hill labs.
21               MR. TREU:  I thought you were
22   talking about Heather Hill.
23               MR. MISHKIND:  No.
24               MR. TREU:  What are we looking for?
25   I got lost.
0072
 1               THE WITNESS: These are labs from UH
 2   not labs from Heather Hill.
 3         Q.    I'm looking to see if there were any
 4   labs drawn at Heather Hill during that week.
 5         A.    I don't think this is Heather Hill
 6   stuff.  I think this is all University Hospital
 7   stuff.  No, wait.  Sorry.
 8               MR. TREU:  You know why you are
 9   seeing UH records in there is because they were
10   transferred.
11               MR. MISHKIND: Portions of the UH
12   records were transferred as well as a gold form.
13               THE WITNESS: This is all University
14   Hospital stuff.
15               MR. TREU:  In the pack is
16   correspondence, quote, unquote.
17               THE WITNESS: This is all UH
18   paperwork.
19               MR. MISHKIND: As I looked at the
20   Heather Hill records --
21               MR. TREU:  Those are not all Heather
22   Hill records, I promise you.
23               MR. MISHKIND:  Kris, were labs
24   drawn?  I didn't see in the records that I
25   obtained and that you sent me just last week, I
0073
 1   didn't see an ESR and a CRP being drawn, even
 2   though that was on the gold form.  And if that
 3   is in fact the case, then this is going to be my
 4   last line of questioning as it relates to those
 5   issues and the subsequent follow up.
 6               MR. TREU:  I don't know the answer
 7   to that, because I don't know where they would
 8   have been drawn and whether they would have been
 9   included in this chart regardless, because I
10   know there were labs drawn at Geauga at times.
11               MR. MISHKIND:  On an outpatient.
12               MR. TREU:  And whether those came
13   back here and got into this chart, I do not
14   know.  I have not looked at that.  This is my
15   copy.  This is what I sent you.
16               MR. MISHKIND: The Heather Hill
17   records.
18               MR. TREU:  Yes.  It just has more
19   clinical stuff in here that I didn't see in your
20   sets.  All the nurses checks.
21               (Discussion off the record.)
22               THE WITNESS: Here is the lab.  The
23   Geauga Regional Hospital lab. I think Heather
24   Hill sends their blood work to Geauga maybe.
25   Let me see if I can find a beginning.  There is
0074
 1   a CBC which is normal.
 2         Q.    So one of the things that you wanted
 3   done was a CBC.  What was the date of the CBC?
 4         A.    He had one on the 17th -- wait.
 5   Yes, he did have one on the 17th and he had one
 6   on the 19th.  The 17th and 19th.  And then he
 7   was discharged on the 23rd.  So he had two CBCs.
 8         Q.    Is it fair to say that while he was
 9   at Heather Hill, at least from what you can see,
10   from the gold form sent over and from your
11   progress note and then the discharge summary,
12   that he didn't have erythrocyte sedimentation
13   rates or C-reactive proteins checked?
14         A.    Yes, he did not have one.  He
15   would've only had one, yeah.
16         Q.    And did the normal CBC, did that
17   rule out an inflammatory or infectious process
18   that would have potentially been detected by
19   erythrocyte sedimentation rate or a C-reactive
20   protein?
21         A.    It doesn't rule it out necessarily.
22   Typically you see a slightly higher white count
23   as active infection is going on, but it doesn't
24   necessarily exclude it.
25         Q.    Is it fair to say you wanted an ESR
0075
 1   and a CRP done in follow up?  You didn't know
 2   where he was going at the time?
 3         A.    Correct.
 4         Q.    And is it fair to say that at least
 5   during that one week period of time that he was
 6   at Heather Hill a CBC was done --
 7               MR. TREU:  Two.
 8         Q.    -- two CBCs were done, but an ESR
 9   and a C-reactive protein were not?
10         A.    Correct.
11         Q.    And the discharge summary from the
12   hospital would have been sent to Dr. Goddard,
13   his family doctor, who saw him in follow up
14   after he got out of Heather Hill?
15         A.    I don't know whether he saw him or
16   when he saw him in follow up, but it says a copy
17   was sent to him.
18         Q.    Okay.  And would you have any reason
19   to suspect that Dr. Goddard would not have been
20   aware of the fact that Mr. Zerbian had not had
21   an ESR and a CRP when Dr. Goddard saw him in
22   early October?  Do you follow me?
23         A.    No.
24         Q.    Fair enough.  I could tell by the
25   look on your face.
0076
 1               If the discharge summary that was
 2   prepared, as well as your order about having two
 3   to three days -- or two to three weeks on
 4   October 5th, if that information made it to
 5   Dr. Goddard -- first, let me ask you, did
 6   Dr. Goddard ever contact you to talk about this
 7   patient?
 8         A.    Not that I recollect, no.
 9         Q.    If Dr. Goddard knew or should have
10   known that you wanted an erythrocyte
11   sedimentation rate and a C-reactive protein and
12   he saw Mr. Zerbian after he got out of Heather
13   Hill, would you have entertained a telephone
14   call from Dr. Goddard to talk about the ESR and
15   the CRP still needed to be done?
16         A.    If you are asking me would I have
17   talked to him if he called me, I would've
18   certainly talked to him.  However, I don't know
19   what the discharge papers from Heather Hill said
20   when the patient went home.
21         Q.    But if the patient followed up with
22   his primary care doctor and the primary care
23   doctor knew or should have known that CBC twice
24   was done but the ESR and the CRP had not been
25   done, would you have felt comfortable talking
0077
 1   with Dr. Goddard about the follow up on his
 2   patient?
 3               MR. TREU:  Objection.
 4         A.    I would've felt comfortable talking
 5   with him about follow up.  I just don't know
 6   what information is passed on discharge from one
 7   facility -- I know what was sent to Dr. Goddard
 8   or supposedly enclosed for his review, but I
 9   don't know what is sent from Heather Hill.
10         Q.    All right.  And you don't know
11   whether or not Dr. Goddard looked at the Heather
12   Hill records to determine whether all three
13   tests were done, do you?
14         A.    I can't comment on what Dr. Goddard
15   did or did not do.
16         Q.    In fact, you don't even know whether
17   Dr. Goddard did or did not have privileges at
18   Heather Hill; correct?
19         A.    Correct.
20         Q.    If the information was readily
21   available to Dr. Goddard, such that he would've
22   known or should have known that the patient
23   didn't have an ESR and a CRP, would it have been
24   reasonable for Dr. Goddard to pick up the phone
25   and call you and talk to you about the
0078
 1   management of this patient?
 2               MR. TREU:  Objection.
 3         A.    I would have been willing to talk to
 4   him.  I don't know that he didn't talk to
 5   anybody else.
 6         Q.    Okay.  Is it fair to say that the
 7   patient still needed follow up after he got out
 8   of Heather Hill to rule out the existence of any
 9   ongoing infection?
10         A.    When he was at Heather Hill, I don't
11   know that other physicians did not see him over
12   there for the same reason.  I arranged follow up
13   and suggested follow up so that I could make
14   sure that I did my part to follow up on
15   Mr. Zerbian.
16         Q.    Okay.  And if the ESR and the CRP
17   had been elevated, either during that week where
18   he was at Heather Hill or if someone else such
19   as Dr. Goddard who saw him in the first week of
20   October, if the ESR and CRP had been ordered and
21   were elevated, what, if anything, would that
22   have indicated to you from an infectious disease
23   standpoint?
24               MR. TREU:  Objection.
25         A.    If he still had an elevated sed rate
0079
 1   and CRP, it just means he has increased
 2   inflammation.  Whether it's residual from his
 3   acute herniated disk or any other process, that
 4   would have to be determined by physical
 5   examination.
 6               I mean, I don't use those as the
 7   sole reason to do anything that I do.  I use
 8   those numbers in conjunction with patient
 9   assessment, physical exam, how they are doing
10   clinically.  Those are just simply a marker so
11   you don't have to throw somebody on an MRI table
12   every week to see how their back or anything
13   that you are concerned about is changing.  So I
14   use those labs in conjunction with an
15   assessment.
16         Q.    Why wasn't Mr. Zerbian continued on
17   antibiotics at the time that he was discharged
18   from University Hospitals?
19         A.    Well, we base that on the fact that
20   he had one temperature and one temperature only.
21   At the time I don't believe, I don't recall that
22   he had a white count.  We didn't have a white
23   count, and we thought it was a skin contaminant
24   because of the one out of four blood culture
25   bottles.
0080
 1               The antibiotics were subsequently
 2   stopped, like we do with other skin
 3   contaminants, and we monitor people.  We watch
 4   for recurrence of fever.
 5               Primarily, if they get bacteremia
 6   again, they get febrile again.  That's why we
 7   monitor -- I mean, often.  I mean, I don't want
 8   to say they always get bacteremia if they have a
 9   fever.  But if they have a fever again in this
10   situation, I may have repeated blood culture to
11   see if he reseeded a blood stream.  But I use
12   those as guides.
13               He wasn't sent out on antibiotics so
14   we didn't feel at the time we saw him that that
15   was a true bacteremia versus skin colonization.
16               And certainly overtreatment with
17   antibiotics leads to all sorts of potential
18   complications so we minimize risk in that way,
19   as well.
20         Q.    Sure. And undertreatment with an
21   antibiotic with a proven bacteria can lead to
22   other risks, as well?
23         A.    If they have true bacteremia, yes,
24   it can.
25         Q.    If Mr. Zerbian presented back to you
0081
 1   with ongoing complaints of low back pain,
 2   elevated CRP, elevated erythrocyte sedimentation
 3   rate, temperature or complaints of temperature,
 4   would you have treated him with Cipro?
 5         A.    It depends on what other situation
 6   is going on.
 7         Q.    Do you agree that with a patient
 8   like this who has initially fairly severe back
 9   pain when he came into the hospital with
10   inflammatory markers that one couldn't rule out
11   infection, that close surveillance and
12   monitoring of the patient were critical?
13               MR. TREU:  Objection.
14         A.    Based on his pain and just elevated
15   markers of inflammation --
16               THE WITNESS:  Could you read it
17   back?
18               MS. GORDON:  QUESTION:  Do you agree
19   that with a patient like this who has initially
20   fairly severe back pain when he came into the
21   hospital with inflammatory markers that one
22   couldn't rule out infection, that close
23   surveillance and monitoring of the patient were
24   critical?
25               MR. TREU:  Note my objection.
0082
 1         A.    I mean, I guess monitoring for what?
 2         Q.    Monitoring in terms of close follow
 3   up to make sure that the patient wasn't
 4   developing a more serious problem.
 5         A.    I mean, I would have to have seen
 6   him to evaluate.  I guess I don't understand
 7   whether you just mean infection versus his known
 8   chronic back pain herniated disk that also
 9   presents with very bad pain and elevated
10   inflammatory markers.  You can follow that.  It
11   could go either way.  Determining critical or
12   standard of care.
13         Q.    Do you know what -- is it
14   Dr. Nassir, N-A-S-S-I-R?
15         A.    Yes.  She was a former Fellow here.
16         Q.    Do you know what she meant when she
17   wrote her note the same day but prior to yours
18   that the patient needs very close follow up,
19   what she meant by that?
20         A.    Well, that was reference to our
21   blood work that we wanted.  Because we were
22   asked to rule out whether he had infection or
23   not and we certainly couldn't do that and that's
24   why we were using these as the serial markers of
25   inflammation as well as follow-up exam or
0083
 1   follow-up appointments with me to reassess
 2   whether or not he needed further diagnostic
 3   workup or not for an infection.
 4               Because at the time we saw him we
 5   couldn't rule it out on the back because the
 6   findings could be consistent either with an
 7   inflammatory process from what we know he had,
 8   acute herniated disk, versus infection.  Or, you
 9   know, was there an infection or was it just his
10   known back disease.  And I couldn't say at the
11   time of discharge.  That's why we wanted those
12   tests.
13         Q.    So Dr. Nassir said that on the 15th
14   and then you echoed it basically the same day
15   when you saw him and gave very specific
16   instructions in terms of tests that you wanted
17   done and follow up that you wanted to take
18   place; correct?
19         A.    Yes.
20         Q.    And if all of that information was
21   conveyed to and available to his family doctor,
22   Dr. Goddard, who saw him in early October, do
23   you have any explanation for why Dr. Goddard
24   didn't refer the patient back to you?
25               MR. TREU:  Objection.
0084
 1         A.    I have no explanation.
 2         Q.    Would that have been a reasonable
 3   and prudent thing for Dr. Goddard to have done?
 4               MR. TREU:  Objection.
 5         A.    You know, Dr. Goddard is his primary
 6   care doctor.  He could've chosen to follow and
 7   see him and base clinical decisions on how the
 8   patient presented to him.
 9               I make these recommendations when,
10   often when patients go to nursing homes, for
11   instance, when their primary care doctor may or
12   may not be involved and we assure that I can, if
13   I'm following it, then I have the information I
14   have need.  If another doctor is following it,
15   they may decide to do other things.  These are
16   merely what I recommend for my follow up.
17               Whether Dr. Goddard -- when I make
18   recommendations as such and people go to nursing
19   homes, often the nursing home doctors don't even
20   control anything of their care.  And aside from
21   routine medications and anything related to the
22   back they leave to the people back at the
23   hospital.  Other nursing homes, the doctors
24   assume that care and do it and they don't send
25   them back to us for follow up.  So I leave
0085
 1   instructions done as to the way I wanted it for
 2   me to follow up with them; the stuff that I
 3   would want for me to follow up.  I don't know if
 4   I'm making myself clear.
 5         Q.    You are.  You felt strong enough
 6   from an infectious disease standpoint that this
 7   patient needed further testing to rule in or to
 8   rule out the existence of infection?
 9         A.    Yes.
10         Q.    And whether that was followed up by
11   you or followed up by his family practitioner,
12   either way would have been reasonable; correct?
13         A.    Correct.
14         Q.    Do you have an opinion -- and you
15   may not.  If you don't, I'll accept it.
16               Do you have an opinion in this case
17   as to when the patient first developed clinical
18   markers consistent with bacterial endocarditis?
19               MR. TREU:  Objection.
20         A.    I only saw Mr. Zerbian the one time
21   and elevated markers of inflammation in his
22   situation could have been attributed to his
23   herniated disk.  So that is all in terms of
24   findings or anything that would have suggested
25   anything going on inflammatory, infectious,
0086
 1   noninfectious when we saw him.  I don't know
 2   what happened afterwards.
 3         Q.    I take it then you also don't have
 4   an opinion as to when the destruction of the
 5   mitral valve got to the point where it was
 6   inevitable that he was going to have to have a
 7   mitral valve replacement?
 8         A.    I saw Mr. Zerbian and he didn't have
 9   a heart murmur.  That's the only thing I know in
10   terms of any of his follow up.
11         Q.    Even though he did have mitral valve
12   prolapse, mitral regurgitation and redundant
13   mitral leaflets, you clinically didn't hear a
14   heart murmur?
15         A.    No.
16         Q.    Are heart murmurs always clinically
17   detectable in patients that have mitral valve
18   prolapse?
19         A.    Not always.
20         Q.    Okay.
21         A.    The echocardiogram here didn't show
22   destruction of any valves, so he just had
23   prolapse.
24         Q.    Right.
25               MR. MISHKIND:  Okay.  We are done.
0087
 1               THE WITNESS:  Nice to meet you.
 2               MR. MISHKIND:  Sure
 3         Q.    I want to make sure since you have
 4   given a couple depositions but this is the first
 5   one where you are an attending, have I given you
 6   an opportunity to explain what your role was and
 7   why certain things were done and were not done
 8   in this case?
 9               MR. TREU:  From your perspective.
10         A.    I believe so.
11         Q.    And I want to make sure I haven't
12   been unfair to you in terms of cutting you off
13   or not letting you explain things in terms of
14   why -- in terms of the blood cultures and the
15   medication and what your thought process was.
16               Have I given you an adequate
17   opportunity to explain things during the course
18   of this deposition?
19               MR. TREU:  I'll object.  She has
20   answered the questions that have been asked her.
21         A.    Yes, I have answered your questions.
22         Q.    Are there any facts as it relates to
23   this patient that you believe you need to bring
24   to my attention that I have either cut you off
25   from or that you believe are important to be
0088
 1   discussed?
 2         A.    No.  My documentation in my notes
 3   and the questions that we've brought up I think
 4   cover my involvement, and that's all I can
 5   really comment on is my involvement.
 6               MR. MISHKIND:  Thank you again.
 7               Would you like Dr. Lisgaris to read?
 8               MR. TREU:  We will read.
 9                      - - - - -
10       (Deposition concluded at 11:30 p.m.)
11              (Signature not waived.)
12                      - - - - -
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25   
0089
 1                       AFFIDAVIT
 2         I have read the foregoing transcript from
 3   page 1 through 88 and note the following
 4   corrections:
 5   PAGE  LINE     REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17   
                          MICHELLE LISGARIS, M.D.
18   
19   
20     Subscribed and sworn to before me this
21   day of          , 2008.
22   
23   Notary Public
24   
25   My commission expires          .
0090
 1                     CERTIFICATE
 2   
 3   State of Ohio,
 4                      SS:
 5   County of Cuyahoga.
 6   
 7   
 8         I, Vivian L. Gordon, a Notary Public
     within and for the State of Ohio, duly
 9   commissioned and qualified, do hereby certify
     that the within named MICHELLE LISGARIS, M.D.
10   was by me first duly sworn to testify to the
     truth, the whole truth and nothing but the truth
11   in the cause aforesaid; that the testimony as
     above set forth was by me reduced to stenotypy,
12   afterwards transcribed, and that the foregoing
     is a true and correct transcription of the
13   testimony.
14         I do further certify that this deposition
     was taken at the time and place specified and
15   was completed without adjournment; that I am not
     a relative or attorney for either party or
16   otherwise interested in the event of this
     action.  I am not, nor is the court reporting
17   firm with which I am affiliated, under a
     contract as defined in Civil Rule 28 (D).
18   
           IN WITNESS WHEREOF, I have hereunto set my
19   hand and affixed my seal of office at Cleveland,
     Ohio, on this 29th day of May, 2008.
20   
21   
22   
23                   Vivian L. Gordon, Notary Public
                     Within and for the State of Ohio
24   
     My commission expires June 8, 2009.
25   
0091
 1   
 2                      INDEX
 3     DEPOSITION OF MICHELLE LISGARIS, M.D.
 4   
 5     BY MR. MISHKIND:              3        7
 6   
 7                       EXHIBITS
 8   
 9     Exhibit 1 was marked          21       23
10     (In HDM's possession)
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25