0001 1 State of Ohio, ) ) SS: 2 County of Cuyahoga. ) 3 - - - 4 IN THE COURT OF COMMON PLEAS 5 - - - 6 C. JEAN THOMPSON, etc., ) ) 7 Plaintiff, ) ) Case No. CV-05-560264 8 v. ) Judge Dick Ambrose ) 9 SOUTH POINTE HOSPITAL, ) et al., ) 10 ) Defendants. ) 11 - - - 12 THE DEPOSITION OF MARK MELAMUD, M.D. 13 MONDAY, MARCH 27, 2006 14 - - - 15 The deposition of MARK MELAMUD, M.D., a 16 Defendant, called for examination by the Plaintiff, under the Ohio Rules of Civil Procedure, taken before 17 me, Janis E. Ice, Registered Professional Reporter and Notary Public in and for the State of Ohio, 18 pursuant to notice, at the offices of Nurenberg, Paris, Heller & McCarthy Co., L.P.A., 1360 Ontario 19 Street, Suite 100, Cleveland, Ohio, commencing at 4:00 p.m., the day and date above set forth. 20 21 HOFFMASTER & BARBERIC, INC. 22 THE LORENZO CARTER BUILDING, SUITE 340 1360 WEST NINTH STREET 23 CLEVELAND, OHIO 44113 (216) 621-2550 24 FAX (216) 621-3377 1-888-595-1970 25 0002 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 ELLEN McCARTHY, ESQ. Nurenberg, Paris, Heller & McCarthy Co., 4 L.P.A. 1370 Ontario Street, Suite 100 5 Cleveland, Ohio 44113-1792 (216) 6 7 On behalf of the Defendant Mark Melamud, M.D.: 8 STEVEN J. HUPP, ESQ. PATRICK J. QUALLICH, ESQ. 9 Bonezzi, Switzer, Murphy & Polito Co., L.P.A. 526 Superior Avenue, Suite 1400 10 Cleveland, Ohio 44114-1491 (216) 875-2767 11 12 On behalf of South Pointe Hospital: 13 SUSAN M. SEACRIST, ESQ. Reminger & Reminger Co., L.P.A. 14 1400 Midland Building 101 Prospect Avenue, West 15 Cleveland, Ohio 44115 (216) 687-1311 16 17 18 19 - - - 20 21 22 23 24 25 0003 1 INDEX PAGE 2 3 CROSS-EXAMINATION BY 4 MS. McCARTHY 4 5 6 OBJECTIONS BY 7 MR. HUPP 22, 29, 30, 33, 71, 76, 82, 87, 88(2), 89, 90(2), 94, 95, 8 97(2), 100(2) 9 10 PLAINTIFF'S EXHIBITS MARKED 11 1 38 2 46 12 3 63 4 80 13 5, 6 83 7 102 14 15 16 17 - - - 18 19 20 21 22 23 24 25 0004 1 MARK MELAMUD, M.D. 2 a Defendant, called for examination by the Plaintiff, 3 under the Rules, having been first duly sworn, as 4 hereinafter certified, was deposed and said as 5 follows: 6 - - - 7 CROSS-EXAMINATION 8 BY MS. McCARTHY: 9 Q. Doctor, my name is Ellen McCarthy. Along 10 with Andy Young, we represent the Estate of Robert 11 Thompson. I have some questions for you about your 12 background, but mostly about the medical care and 13 treatment that you provided to Mr. Thompson in April 14 of '03. 15 If I ask you a question which you don't 16 understand, stop me, tell me that, and I will 17 rephrase it until you do understand it. 18 I'm sorry. April of '04. Pardon me. 19 A. April of? 20 Q. April of 2004, correct? 21 A. M-hm. 22 Q. If I ask you a question which you don't 23 understand, stop me, tell me that, and I will 24 rephrase the question until you do understand it. 25 You have to answer out loud so our court 0005 1 reporter can take down your testimony. She can't 2 take down gestures or nods of the head. And if you 3 answer uh-huh or huh-uh, even though presently we 4 know you mean yes or no, it might not be so clear 5 when this is transcribed. 6 A. Okay. 7 Q. If you answer one of my questions, I will 8 assume you understood it and I will rely on the 9 answer that you provided when we try this case. Is 10 that clear to you? 11 A. Yes. 12 Q. Can you give us your full name and spell your 13 last name? 14 A. My first name is Mark with a K. My last name 15 is Melamud, M-E-L-A-M-U-D. 16 Q. Doctor, where do you live? 17 A. I live at 2580 Butternut Lane, Pepper Pike. 18 Q. And how old are you? 19 A. I'm 62. 20 Q. Your curriculum vitae was provided by Mr. 21 Hupp. It looks like it's -- I can't tell when it was 22 last updated. I am going to hand you this curriculum 23 vitae and ask you, first of all, is that your 24 curriculum vitae? 25 A. Yes, it is. 0006 1 Q. Is this a current copy of your curriculum 2 vitae? 3 A. M-hm. 4 Q. Is that a yes? 5 A. Yes. 6 Q. Is there anything that you would like to add 7 to your curriculum vitae? 8 A. Not at this point, no. 9 Q. Would I be correct, Doctor, that you were 10 born in the Soviet Union? 11 A. Right. 12 Q. And you came to the United States sometime in 13 the early '80s? 14 A. I came on June 26th of '81. That's when I 15 arrived. 16 Q. When you arrived in this country, where did 17 you reside initially? 18 A. You mean the address? 19 Q. Well, no, I don't need -- 20 A. Cleveland. 21 Q. You came right to Cleveland? 22 A. Yeah. 23 Q. All right. So there aren't any other places 24 in the United States that you've lived when you first 25 got here? 0007 1 A. No. 2 Q. Have you stayed in Cleveland the entire time 3 you have been here? 4 A. Absolutely. 5 Q. Are you a citizen of the United States? 6 A. Yes, I am. 7 Q. When did you become a citizen? 8 A. '87, '88. I don't remember actually exactly, 9 but something like it. 10 Q. Your best recollection is fine. 11 A. Yeah, 20 years ago. 12 Q. Understood. 13 Doctor, since you have been in the United 14 States, have you published any articles in your 15 field? 16 A. No, I didn't. 17 Q. When you were living in Russia, in the Soviet 18 Union, did you publish any articles in your field? 19 A. Yes, I did. 20 Q. Tell me what articles you published in your 21 field. 22 A. In the field of medicine, not 23 gastroenterology. At that time the articles I 24 published was Septic Toxic Syndrome in Newborns. 25 This was in 1968. Use of Prednisone in Children with 0008 1 Septic Infections was also published in '68. That's 2 it. 3 Q. What caused you to come to the United States? 4 A. Well, actually, it was political immigration 5 and we were accepted as refugees. 6 Q. By whom are you currently employed? 7 A. Myself. I am in private practice. I am 8 self-employed. 9 Q. Do you have a corporation that you practice 10 under? 11 A. It's LLC or low liability corporation. But, 12 no, otherwise no, I am not incorporated if you are 13 asking this question. And I don't understand the 14 business very well. 15 Q. Understood. 16 In 2004 when you provided medical care and 17 treatment to Mr. Thompson, were you employed by any 18 corporation? 19 A. No. 20 Q. We have listed Mark Melamud, MD, LLC, is that 21 the -- 22 A. Right. 23 Q. -- corporate designation? 24 A. Right. 25 MR. HUPP: Let her 0009 1 finish her question before you start 2 answering. Okay, Doctor? 3 BY MS. McCARTHY: 4 Q. Have you ever had your deposition taken 5 before, Doctor? 6 A. Yes. 7 Q. On how many occasions? 8 A. I think it was two depositions in the same 9 case. 10 Q. And when was that? 11 A. When? 12 Q. Yes. 13 A. About eight, ten years ago. I don't remember 14 exactly. 15 Q. Were you a party to the lawsuit? 16 A. I was a part of a team, a Mt. Sinai team, in 17 a case -- I was an admitting doctor. It was a 18 teaching case again, and the case was settled because 19 Mt. Sinai, who provided us with insurance, at that 20 time collapsed already. The case was postponed many 21 times and the case was settled. 22 Q. What were the issues in that case as far as 23 you understood them? 24 A. This was a 72 year old lady who was admitted 25 by me for abdominal pain, later happened to be 0010 1 diagnosed as referral pain from her spinal stenosis. 2 She have few consultants involved, including 3 internist, neurologist, pulmonologist, cardiologist. 4 She had surgery in her lower back and she was found 5 in dead in her bed, in her hospital bed eight hours 6 after surgery. 7 Q. What was the cause of death? 8 A. It was considered sudden death. Autopsy was 9 never allowed by the family. And our assumption was 10 probably pulmonary embolism or acute myocardial 11 infarction. As I said, the lady was in her 70s. 12 Q. And you think you were deposed twice in that 13 case? 14 A. As well as I can recollect, once or twice. 15 Q. Any other events where you can recall having 16 your deposition taken? 17 A. No. I don't remember. 18 Q. Have you ever been a party to a lawsuit, 19 other than the one you have just told me about? 20 A. I don't recall that. 21 Q. You don't recollect one way or the other? 22 A. I don't remember I was. 23 Q. Have you ever testified as an expert witness 24 in a medical-legal matter? 25 A. I testified as a witness, but not an expert 0011 1 witness. 2 Q. Explain that to me. 3 A. Well, again, it was a case at Mt. Sinai when 4 I was the attending physician. I have teaching 5 privileges with the residents. Another doctor was 6 sued, or two doctors actually were sued, and I was 7 called in as a witness because my team and I were 8 taking care of this patient. 9 Q. Do you recall what the issues were in that 10 case? 11 A. When the patient was under my care, the 12 patient had urinary tract infection, including 13 Candida infection. This was Candida albicans in her 14 urine. We called the urology consult, and we 15 discharged the patient with the agreement that she 16 will come to see the urologist in a couple weeks. 17 She was admitted two months later with Candida 18 meningitis. It was a different Candida. It was not 19 Candida albicans. I don't remember what type of 20 Candida it was. And I was called as a witness 21 because the urologist was called and the primary care 22 physician who she came to see a few weeks after 23 discharge. 24 Q. Have you ever been asked to consult as an 25 expert witness on any case? 0012 1 A. No, I haven't. 2 Q. Do you intend on acting as an expert in this 3 case? 4 A. No, I don't. 5 Q. What records did you review prior to coming 6 into this room today? 7 A. My record and the chart, my chart, my office 8 chart. I looked at the pictures just today, they 9 were shown to me, and my note and the hospital chart. 10 Q. When did you look at the hospital chart? 11 A. First time today. 12 Q. And you looked at the photograph that's been 13 supplied by Mr. Hupp today for the first time? 14 A. Yeah. 15 Q. Any other records besides your office chart, 16 the photo and the hospital record? 17 A. Can you repeat the question? 18 Q. Sure. Anything else that you reviewed other 19 than the hospital chart, your office chart and the 20 photograph that we see in front of you? 21 A. Not as I remember, no. 22 Q. Did you review the autopsy? 23 A. No. I didn't review the autopsy, although I 24 was shown the picture of the colon. But, no, I 25 didn't review the autopsy. 0013 1 Q. What picture of the colon were you shown? 2 A. This one. 3 Q. Doctor, did you consult with anybody besides 4 your attorney with respect to this case? 5 A. No, I didn't. 6 Q. Did you make any personal notes about this 7 case that are not contained in your chart? 8 A. No, I didn't. 9 Q. Could you describe for me, please, the nature 10 of your current practice? 11 A. It's a hundred percent gastroenterology 12 practice. 13 Q. How long? 14 A. Based on referrals. 15 Q. For how long has it been a hundred percent 16 gastroenterology practice? 17 A. Since I started. 18 Q. Since the late '80s; would that be fair? 19 A. '89. 20 Q. How many colonoscopies do you do annually at 21 the present time? 22 A. At the present time I do probably 1,500 plus 23 or minus. 24 Q. Approximately 1,500? 25 A. A year. 0014 1 Q. Was that same 1,500 figure true in 2004? 2 A. Approximately maybe 1,200 to 1,500. 3 Difficult to say from year to year, but in this 4 region. 5 Q. How many sigmoidoscopies do you do on an 6 annual basis presently? 7 A. I don't do any. 8 Q. Was that also true in 2004? 9 A. Exactly. 10 Q. Doctor, could you tell me what a perforation 11 of the colon is? 12 A. Perforation of the colon is disruption of the 13 integrity of the wall of the colon. 14 Q. During a colonoscopy, how can a perforation 15 occur? 16 A. I would like to know, you mean just 17 colonoscopy? 18 Q. Sure. Let's start with that. 19 A. During colonoscopy, perforation can occur 20 with the back of the scope or the loop of the scope. 21 It can occur with the end of the scope, although I 22 have never heard and never seen one perforating with 23 the loop of the scope. 24 Q. How is it that you understood a perforation 25 could occur with a loop of the scope and you have 0015 1 never seen or heard it? 2 A. No, no, no. I said I've never seen or heard 3 with the end of the scope. 4 Q. I'm sorry. I thought you said the loop. 5 A. No, no. With the loop, that's one of the 6 perforations that do it. 7 Q. In terms of the end of the scope, is your 8 testimony that a perforation can occur? 9 A. Perforation can occur. 10 Q. And how is it that you understand that a 11 perforation can occur with the end of the scope if 12 you have never seen or heard of that? 13 A. I read about it. 14 Q. In what context? 15 A. Complications of Colonoscopies. 16 Q. Is that a textbook? 17 A. Textbook Endoscopy, Gastrointestinal 18 Endoscopy. It's probably the most reliable and, 19 volume-wise, larger textbook, written by Dr. Michael 20 Sivak, who lives in Cleveland and is chief of 21 gastroenterology now at University Hospital. 22 Q. Can you spell his last name? 23 A. S-I-V-A -- 24 Q. I'm sorry. S-I? 25 A. S-I, V like Victor, A-K. 0016 1 Q. Any other ways in which the colon can be 2 perforated during the colonoscopy besides with the 3 back of the scope, the loop of the scope and the end 4 of the scope? 5 A. Not during the colonoscopy. 6 Q. Are there ways that the colon can be 7 perforated following a colonoscopy? 8 A. Can you rephrase your question? I don't 9 understand what you mean. When the scope is out of 10 the colon? 11 Q. Yes. 12 A. Can it be perforated then? 13 Q. Yes. 14 A. It can be perforated by air. If the patient 15 has diverticulitis, a diverticular perforation 16 occurs. 17 Q. Have you ever perforated the colon during a 18 colonoscopy prior to April of 2004? 19 A. Yes, I did. 20 Q. On how many occasions? 21 A. I think all together, probably six. 22 Q. When in time was the most recent perforation 23 as you are able to recall? 24 A. About three years ago; two, three years ago. 25 Q. Let me ask it to you more properly. When in 0017 1 time prior to our surgery is the most recent 2 perforation that you can recall? Our surgery was 3 April 14th of '04. 4 A. Prior, two years prior to this. 5 Q. So sometime in '02 you recall a perforation 6 of the colon occurring during your procedure? 7 A. Right. 8 Q. How is it that it occurred? 9 A. First of all, I recognized it right away. At 10 that time I removed a small polyp, or a polyp. And I 11 saw a perforation, an opening, a hole in the colon. 12 And I saw the colon collapsing on this segment of the 13 colon. 14 Q. Let me see if I understand, and correct me if 15 I misstate anything. All right? 16 A. Okay. 17 Q. You recall perforating the colon in 2002 18 approximately, during a colonoscopy after a polyp had 19 been removed? 20 A. Right. 21 Q. How was the polyp removed in that instance? 22 A. With a snare. It's the best I can recall 23 now, with a snare. 24 Q. Is the snare different than hot forceps? 25 A. Yes. It's a different instrument. 0018 1 Q. Why is it that you selected the snare to 2 remove that polyp? 3 A. It depends on a few factors. It depends on 4 the size of the polyp. It depends on the place of 5 the polyp, the location of the polyp, and also 6 depends on how comfortable I feel at this point or 7 this location to remove it with a snare or with a hot 8 biopsy forceps. 9 Q. Where was this polyp located at the time of 10 this perforation in '02? 11 A. It was in the right side of the colon and I 12 think it was ascending colon, to the best of my 13 recollection. Now, we are talking about something 14 like six years ago, four years ago. 15 Q. What was it about that removal of the polyp 16 and the -- strike that. 17 Did the perforation occur as a result of the 18 removal of the polyp? 19 A. You mean in 2002? 20 Q. Let's confine our discussion to 2002 right 21 now. 22 A. I think so. 23 Q. How is it that the colon was perforated as a 24 result of the polyp removal? 25 A. It was a known complication of the procedure. 0019 1 Q. What caused you to recognize this, this 2 perforation? 3 A. I saw the perforation. 4 Q. What did you see? 5 A. I saw a hole. 6 Q. How large a hole? 7 A. Few millimeters. 8 Q. Did you see any blood associated with this 9 removal? 10 A. No. 11 Q. And what did you do when you observed -- 12 A. And I saw, as I said, tissue coming, or the 13 colon collapsing in this segment. 14 Q. Was this tissue that you saw collapsing 15 otherwise -- 16 A. Tissue, I mean the walls of the colon 17 collapse. 18 Q. Sure. Was that area of the colon otherwise 19 healthy colon? 20 A. Right. 21 Q. Was there necrotic tissue in the area? 22 A. I hadn't seen any necrotic tissue. 23 Q. What did you do when you recognized that a 24 hole had been created in the colon following your 25 polyp removal? 0020 1 A. Gave the patient IV fluids, IV antibiotic, 2 gave an upright KUB and called for a surgical 3 consult. 4 Q. What was the purpose of giving IV fluids? 5 A. Well, hydration is one of the treatments for 6 infection, for any infection, and the patient already 7 had the IV fluids. I just continued. I didn't 8 discontinue the IV fluids, let's put it this way. 9 Q. The purpose of the antibiotic was what? 10 A. To treat infection. 11 Q. What infection were you treating or 12 anticipating? 13 A. Peritonitis. 14 Q. The purpose of the upright KUB? 15 A. Just to prove there is leak of air or 16 intra-abdominal or intra-peritoneal air. 17 Q. Did the KUB prove that there was a leak? 18 A. Yes. It was a small amount of air. 19 Q. And when was the surgical consult obtained? 20 A. The same time I called. And the surgeon saw 21 the patient probably within a couple hours. 22 Q. And what was the result of the surgical 23 consult? 24 A. Well, we continued conservative management, 25 IV antibiotics, IV fluids, NPO. 0021 1 Q. Was the patient admitted to the hospital? 2 A. Absolutely. 3 Q. Did the patient survive? 4 A. Yes. 5 Q. Anything else about that particular episode 6 in '02 that you can recall that you haven't talked to 7 me about? 8 A. Of 2002? 9 Q. Yes. 10 A. The patient had chronic renal insufficiency. 11 The patient had coronary artery disease. The patient 12 was hypertensive. He was in his, probably, late 13 '70s. 14 Q. That patient, in spite of his coronary artery 15 disease, his hypertensive condition, his renal 16 failure and his age, survived the colonoscopy and the 17 perforations; is that correct? 18 A. Absolutely. 19 Q. And he was discharged from the hospital 20 alive? 21 A. About seven, eight days probably later. 22 Q. Prior to that episode, what's the next 23 perforation during a colonoscopy that you can recall? 24 A. Now you are talking about something early, 25 seven, eight years ago. I don't remember the 0022 1 details. I don't know what to -- well, there was a 2 gentleman who I did a colonoscopy, a gentleman with 3 his ulcerative colitis. I did the biopsy, and it 4 probably was a small leak of air because he developed 5 abdominal pain the next day or the day after. He 6 called me from home. I sent him to the emergency 7 room, admitted him and he was treated conservatively 8 again. 9 Q. And he -- 10 A. Probably was at that time, yeah, he had 11 intra-peritoneal air, treated conservatively, 12 discharged. 13 Q. And he survived that episode? 14 A. Yeah. And I haven't seen him since. I don't 15 know. He's in his '70s probably, too. 16 Q. Have you ever had an episode during a 17 colonoscopy where a perforation occurred and the 18 patient did not survive, other than Mr. Thompson? 19 MR. HUPP: Objection. 20 Go ahead. 21 A. I don't remember. 22 Q. You don't remember that occurring? 23 A. I don't remember this occurring. 24 Q. Do you recall any of the other perforations 25 that occurred prior to this one seven or eight years 0023 1 ago? 2 A. Well, I remember at Mt. Sinai Hospital one or 3 two, no, not one or two. I remember two 4 perforations. One happened about two or three years 5 after I started my practice. Again, it was on an 6 elderly lady who underwent surgery for this 7 perforation. She survived surgery. She later died 8 from some pulmonary disease. I think she was 9 intubated during the surgery and they couldn't get 10 her off from the ventilator and she had some 11 infections, like pneumonia and so on, and she died. 12 I don't think, not I don't think, I know it was not 13 related to the perforation. 14 Q. How did the perforation occur? 15 A. Difficult to say how it occurred. I don't 16 know. I don't remember how it occurred. But I 17 remember that this was the first time when I saw the 18 colon collapsing. 19 Q. Was this perforation apparent to you during 20 the colonoscopy? 21 A. Yeah, absolutely. 22 Q. Had that been also during a polyp removal? 23 A. I don't remember this. 24 Q. The other perforation that you recall 25 occurring at Mt. Sinai, can you tell me about that? 0024 1 A. Well, this was also, this was during a polyp 2 removal. This was when the lady went home, called me 3 two days later actually that she had some abdominal 4 pain, and she was admitted. She had abdominal pain 5 and chills. She was admitted. At that time I 6 removed, it was segmental resection of a large polyp 7 that was in the distal sigmoid colon. And there was 8 retro-peritoneal air. And she was treated again with 9 antibiotics, and she didn't require surgery. 10 Q. So this was a perforation that occurred 11 during a colonoscopy where the polyp was removed in 12 the distal sigmoid colon? 13 A. Distal sigmoid colon, the polyp was removed 14 in segmental fashion. It means piece after piece. 15 Q. Any other perforations that you can recall 16 prior to April of 2004 that we haven't discussed? 17 A. Did I mention any more? Not as I can recall 18 now. 19 Q. Doctor, are there ways to determine whether a 20 perforation has occurred prior to the removal of the 21 scope? 22 A. Yes, there are. 23 Q. Tell me about those. 24 A. Careful observation of the place of the 25 polypectomy. 0025 1 Q. Any other ways? 2 A. Seeing the colon suddenly becoming like 3 deflated balloon, you know, you can't inflate the 4 colon. 5 And, number three, if the patient during the 6 procedure lets the air out naturally, has flatulence, 7 all of a sudden it's silent. You don't hear the 8 flatulence. 9 Q. Any other ways? 10 A. Well, it's a large hole. You can see the 11 mesentery coming into the colon. And again I have 12 never seen it. That's what I read. 13 Q. Are there symptoms of a perforation of the 14 colon following colonoscopy? 15 A. Yes. 16 Q. And those are what? 17 A. It depends how big the perforation is and in 18 which fashion it was made. A large perforation with 19 the back of the scope or with the loop usually is 20 detected immediately or during the procedure or if 21 not immediately after the procedure, the patient may 22 feel pain or discomfort in the abdomen. 23 If it's a small perforation, usually the next 24 day or two, three days later the patient feels pain, 25 can be febrile or have chills, bloating, not 0026 1 bloating, distension, abdominal distension. 2 Q. You said a person can feel pain the next day. 3 Pain where? 4 A. Usually it's either -- the pain is at the 5 place of perforation or it can be the place of 6 perforation or the site of perforation and also under 7 the diaphragm in the upper abdomen where air 8 collection usually occurs. 9 Q. Any other symptoms that we haven't discussed? 10 A. We talked about pain, distension, fever, 11 chills. That's all the presentations. 12 Q. Can it be some of those items or does it have 13 to be all of them in order to be a symptom of a 14 perforation? 15 A. Probably combination is more decisive. One 16 of the symptoms by itself does not mean too much. If 17 a patient had a colonoscopy two days ago and calls me 18 two days later and says his abdomen is okay, he's 19 moving his bowels, there's no blood there, or he has 20 fever or chills, I assume it's from somewhere else. 21 I will still see the patient or send the patient to 22 be seen by somebody. But, you know, with no 23 abdominal pain or no nausea or vomiting, sometimes 24 only a fever by itself doesn't -- it alerts you for 25 something, but not perforation. 0027 1 Q. Why would you send the patient under the 2 circumstances you described? 3 A. Well, because I did a procedure two days ago 4 under the described circumstances and I want to be 5 sure, 100 percent sure, it was not from it. It's 6 better to be safe than sorry in these cases. And 7 that's what you always do, and I assume all of us, 8 because I talked to other gastroenterologist, but I 9 have calls next day or two days later sometimes that 10 the patient doesn't feel comfortable or the patient 11 feels bloated. That's the majority of the 12 complaints. 13 Q. I'm sorry. The patient is bloated and what 14 was the other one that's the majority? 15 A. Discomfort. 16 Q. And under those circumstances you would refer 17 the patient to whom? 18 A. If the patient is only bloated, I will see 19 the patient the same day. If this is off-hours, I'll 20 send the patient to emergency room. With any 21 complaints, I would like the patient to be seen by a 22 doctor the same day. 23 Q. Why is that? 24 A. Well, better be safe. I'm not losing 25 anything by being safe and sending the patient to be 0028 1 seen. It's better for the patient. It's better for 2 me. If something occurred, I can start the treatment 3 earlier. 4 Q. And that was your custom and practice in 5 2004? 6 A. Absolutely. 7 Q. Can you listen to the patient's abdomen and 8 hear a perforation? 9 A. No. 10 Q. Are there other tests besides the KUB to 11 determine whether a patient has a perforation of the 12 colon? 13 A. CT scan of the abdomen, chest x-ray. 14 Q. What is it about a chest x-ray? 15 A. Chest x-ray shows the area under diaphragm. 16 Q. Any other testing that can be done besides 17 the KUB CT of the abdomen and chest film? 18 A. Can be done or should be done? 19 Q. Well, let's talk about can be done. 20 A. That can detect air? 21 Q. That can detect a perforation in the colon. 22 A. Yeah. Barium enema can be done. You said 23 can be done, not should be done. 24 Q. We'll get to should be done in a minute. 25 A. Okay. 0029 1 Q. Barium enema. Anything else? 2 A. That's it. 3 Q. Barium enema is something that is performed 4 in the clinical setting by a physician, true? 5 A. It's performed by a radiologist in the 6 hospital. 7 Q. It's not something you do at home by the 8 patient? 9 A. No. Barium enema has a misleading name, I 10 guess. It's not an enema. It's an injection of 11 barium under pressure with air because it's an 12 air-contrast barium enema, where the barium goes 13 through all the feet of the colon. 14 Q. What tests should be performed to determine 15 whether there's a perforation of the colon following 16 a colonoscopy? 17 A. Upright KUB or acute abdominal series, those 18 are three positions, CT scan of the abdomen. 19 Q. Do you find a barium enema to be 20 contraindicated in those circumstances? 21 A. If you suspect a perforation, I would 22 consider it not advisable. 23 Q. Would you consider it to be unsafe? 24 MR. HUPP: I am going to 25 object to relevancy. 0030 1 Go ahead. 2 A. It does not help to make a diagnosis with 3 barium enema. 4 Q. Any other tests that should be performed 5 besides the upright KUB and the acute abdominal 6 series and the CT scan of the abdomen? 7 A. To diagnose a perforation, I don't think so. 8 Q. Doctor, what are the risks to a patient of a 9 perforation of the colon? 10 A. Peritonitis. 11 Q. What is peritonitis? 12 A. Peritonitis is the inflammation of the 13 mesentery. 14 Q. And why is that risky for a patient? 15 A. It's infection in the abdominal cavity. 16 Q. And if untreated can lead to the death of a 17 patient? 18 MR. HUPP: Objection. 19 Go ahead. 20 A. After the colonoscopy, the colon is clean. 21 Actually, it's the colon when surgeries are performed 22 on the colon. I think that after the colon 23 cleansing, a small perforation seals itself, and 24 there is literature about now a lot of probably small 25 or miniature perforations go undetected or 0031 1 undiagnosed and the patient experiences a little bit 2 of pain, maybe a few hours of chills, and it goes 3 away and is never reported by the patient, especially 4 younger patients, not 70, 80 year olds. 5 We are talking about there are two kinds of 6 peritonitis. There is local peritonitis that happens 7 in diverticulitis, for example, when the diverticulum 8 is perforated. Diverticulitis is even more dangerous 9 because there is some fecal material in the colon at 10 the time of perforation of the diverticulum. 11 Peritonitis can be abacterial, without 12 bacteria. Every time we remove a polyp, every time, 13 without even perforation, there is some inflammation 14 on the other side of the colon wall inside the 15 peritoneum. Because of the terminal effect, we 16 irritate the other side. There is no air there or 17 vacuum. The colon is covered except for the wall 18 that is the size of one millimeter. There is fat 19 tissue there that covers the intestines and colon. 20 So there will be aseptic, so-called, or abacterial 21 irritation of this tissue with neutrophiles coming 22 there and trying to settle the inflammation, and this 23 is a localized, organized or small area. And there 24 is peritonitis that inflamed the whole mesentery, the 25 whole bowel wall, the whole abdominal cavity. And it 0032 1 takes probably days to develop this, but then are we 2 talking about a lot of infection coming out. 3 Q. What do you mean by a lot of infection coming 4 out? 5 A. Well, unclean bowel, for example, the bowel 6 that was not prepped. 7 Q. Let's go back for a minute, Doctor. I want 8 to make sure I understand when you are talking about 9 the anatomy, when you are talking about the removal 10 of a polyp on the colon, do I understand your 11 testimony to be that when you remove the polyp, the 12 outside layer of the colon adjacent to this polyp 13 becomes inflamed? 14 A. Yeah. 15 Q. And that can be a site for bacteria to end 16 up? 17 A. No. I didn't say it. 18 Q. Okay. Correct me. 19 A. What I said, this happens almost always and 20 this is because of thermal effect, effect of the high 21 temperature that we applied to remove the polyp, and 22 there's no infection there. There is inflammation 23 without infection. Like you can burn, you know, skin 24 by mistake or with something hot and you feel pain, 25 you feel inflammation and redness, but there is no 0033 1 infection there. The same may happen or happens very 2 often with the removal of the polyps. 3 Q. All right. Back to my original question, 4 Doctor. Can peritonitis if untreated lead to the 5 death of a patient? 6 MR. HUPP: Objection. 7 Go ahead. 8 A. Well, severe peritonitis in patients 9 untreated may lead to the death through all the 10 developments. Severe peritonitis, a lot of pus, 11 infection into the bloodstream. Theoretically the 12 answer is yes. 13 Q. That's something that you understood prior to 14 April of 2004, correct? 15 A. Absolutely. 16 Q. Do you need to take that page, Doctor? 17 A. Yes, I do. 18 MS. McCARTHY: Let's go off 19 the record. 20 (Thereupon, there was a brief recess.) 21 BY MS. McCARTHY: 22 Q. Doctor, do all small perforations that occur 23 during a colonoscopy seal themselves? 24 A. Colonoscopy with polypectomy. 25 Q. Okay. 0034 1 A. Do all small seal themselves? Most of them 2 do. 3 Q. So some of them don't, correct? 4 A. Some of them don't. 5 Q. And some of those small perforations that 6 occur during a polypectomy can go on to result in 7 peritonitis? 8 A. That's true. 9 Q. Are there any other risks besides peritonitis 10 to the perforation? 11 A. Bleeding is a very unusual complication of 12 perforation. 13 Q. Bleeding of what? 14 A. Bleeding from the colon, rectal bleeding. 15 Q. Thank you. 16 Anything else a risk of a perforation? 17 A. In someone who has, you know, pre-procedure 18 morbidity, it can probably trigger some conditions 19 that otherwise are marginal for this patient. For 20 example, a patient with severe coronary artery 21 disease, any stress would be or can be detrimental to 22 this patient. Patient with cardiac arrhythmias or 23 brachycardia or some defects in conductivity can 24 trigger, any stress can trigger. 25 Q. Anything else beside what we have discussed 0035 1 as a risk of perforation? 2 A. Not as I recall or can talk about. 3 Q. All right. Let's talk about Mr. Thompson for 4 a minute. Had you seen Mr. Thompson prior to his 5 visit with you for the colonoscopy? 6 A. Yeah. I saw him in my office prior. It's a 7 usual, almost routine visit. 8 Q. As I understand it, Mr. Thompson came to see 9 you on -- let me know if you need to stop. 10 A. Not right now. 11 Q. On April 8th of '04, correct? 12 A. Right. 13 Q. Had you seen Mr. Thompson prior to April 8th 14 of '04? 15 A. Never. 16 Q. I am going to hand you your chart. Feel free 17 to refer to your chart if you find if necessary. 18 Did Mr. Thompson have a history of diabetes? 19 A. Not as he told me. 20 Q. Did he have a history of diverticulitis? 21 A. Not as he told me about. 22 Q. Did he have any pre-procedure morbidity 23 factors? 24 A. He told me that he was taking Dilantin for 25 seizure disorder. And again he told me that he 0036 1 didn't have seizures for five years. 2 Q. Why is that significant, the Dilantin? 3 A. Well, it's significant in the way -- it is 4 not significant. It doesn't exclude or it's not 5 contraindicated for the colonoscopy for someone who 6 has seizure disorder. In case you want to know what 7 medications that the patient is on, and that was one 8 of them. I couldn't see his seizure disorder, with 9 the last seizure five years prior to, is a 10 contraindication. 11 Q. So you felt comfortable in spite of his 12 Dilantin use and his last seizure being five years 13 earlier, you recommended he undergo the colonoscopy? 14 A. Exactly. 15 Q. What complaints was he making that caused you 16 to think he needed to have a colonoscopy? 17 A. First of all, he needed the colonoscopy as a 18 routine screening test. He was past 57. He 19 complained of, number one, constipation and then 20 recurrent bleeding during bowel movements. He 21 described it as blood on paper. 22 Q. How long had he been experiencing the 23 bleeding? 24 A. It's not in my record, but I think, if I 25 recall it correctly, about a month intermittent blood 0037 1 in his stool. 2 Q. Were any diagnostic tests performed on Mr. 3 Thompson prior to the colonoscopy? 4 A. In his primary care physician's office. And 5 his primary care physician called me and asked me to 6 see this patient, and he told me that the tests were 7 normal. 8 Q. What tests did you? 9 A. He had CBC diff and he had a basic metabolic 10 profile. 11 Q. Let me finish my question before you answer. 12 And I appreciate your willingness to answer my 13 question, but I need to make sure I have a complete 14 record. 15 So he had some blood work done prior to 16 seeing you; is that right? 17 A. I don't remember within time frame, maybe it 18 was a month before, but I remember his primary care 19 physician calling me that he is referring to me a 20 patient with recurrent rectal bleeding. Actually, 21 it's a small amount of blood. We are talking about 22 blood on paper. 23 Q. Okay. 24 A. This is a 57 year old and needs a colonoscopy 25 for screening purposes and diagnostic purposes. 0038 1 MS. McCARTHY: Let's go off 2 the record. 3 (Thereupon, there was a discussion off 4 the record.) 5 (Thereupon, Plaintiff's Exhibit 1 to 6 the deposition of Mark Melamud, M.D. 7 was marked for identification.) 8 BY MS. McCARTHY: 9 Q. Doctor, what is a polyp? 10 A. Polyp is a growth of abnormal tissue. 11 Q. What causes it? 12 A. Well, it causes some mutation of the cells of 13 this area. Practically, we don't know why polyps 14 start growing. 15 Q. Doctor, do you subscribe to any journals? 16 A. Well, I did subscribe to all of the journals, 17 but we have now a service from the library. They 18 send us the content of all the journals and I choose 19 articles that I want to see, fax it back to them and 20 they mail to me the articles. 21 Q. What library is this? 22 A. South Pointe Hospital library. 23 Q. Do you have to pay for these articles? 24 A. No. 25 Q. Do you have any textbooks on gastroenterology 0039 1 in your office? 2 A. Probably a full bookcase of books and 3 textbooks. 4 Q. Is the gastroendoscopy textbook by -- I think 5 it's Sivak. 6 A. Sivak. 7 Q. Sivak, in your library in your office? 8 A. Not right now. I gave it to a friend. 9 Q. At one point in time it was in your office? 10 A. All the time, sure. 11 Q. Do you belong to any associations? 12 A. No, I don't. Oh, yeah, Northeastern Ohio 13 Endoscopy Association. 14 Q. And how long have you been a member of that? 15 A. Since '89 or '90. 16 Q. Have you ever held any leadership positions 17 in that organization? 18 A. No. 19 Q. Have you held any leadership positions or 20 department chairmanships while you were at Mt. Sinai 21 Hospital? 22 A. No. I was in private practice. I couldn't. 23 Q. At South Pointe do you hold any 24 chairmanships? 25 A. No, I don't. Teaching positions, yes, but I 0040 1 do it now at Richmond University Hospital and also at 2 South Pointe. I am a speaker for a few companies. 3 Q. When you hold these teaching positions at -- 4 did you say University Hospitals? 5 A. Richmond University Hospital, Richmond 6 University, and also South Pointe Hospital. Both of 7 those hospitals are teaching hospitals. 8 Q. So how often do you have medical students 9 accompanying you? 10 A. This is often. I also teach in sense of 11 lecturing. The last lecture was this morning. 12 Q. To whom were you lecturing this morning? 13 A. Residents at Richmond Hospital. 14 Q. For what companies do you do speaking? 15 A. For Novartis and also for Astrazeneca. 16 Q. How do you spell that? 17 A. Astrazeneca, A-S-T-R-A-Z-E-N-E-K-A, or C-A. 18 I'm sorry. 19 Q. For what reason do you speak for Novartis on 20 their behalf? 21 A. For new drug that they came up with to market 22 and a disease that is called irritable bowel 23 syndrome. 24 Q. Would the same be true for Astrazeneca? 25 A. Astrazeneca I speak for gastroesophageal 0041 1 reflux disease. 2 Q. Feel free to refer to your chart, Doctor, if 3 necessary. 4 Did you conduct a physical examination of Mr. 5 Thompson when you saw him on the 8th? 6 A. Yes. 7 Q. Could you describe for us the physical 8 examination you conducted? 9 A. Well, he appeared -- first of all, he 10 complained of constipation. 11 I am reading from my chart. 12 Q. That's fine. 13 A. And some things will be from my memory 14 probably, too. 15 Complaining also of having blood on paper. 16 He denied nausea, vomiting, weight loss, fever or 17 chills. He had a past medical history of seizure 18 disorder. He also told me that he takes sometimes 19 antidepressants. He also admitted to drinking beer 20 on regular basis, I think to drinking. And I didn't 21 elaborate, you know. He was married and he was a 22 smoker. 23 On physical exam, he was six feet tall, 132 24 pounds, so thin man, very light African American 25 gentleman. His vital signs were stable. His pulse 0042 1 was 66. His blood pressure was 110 over 60. He 2 appeared in no distress. He skin examination showed 3 no lesions. Nothing occurs on the eye examination, 4 and his mouth mucosa was pink and moist, neck 5 examination reveals no JVDs, no lymph node 6 enlargement, or lymphoadenopathy, and no thyromegaly. 7 Q. What does JVD mean? 8 A. Jugular vein distension. People who have 9 congestive heart failure have it. 10 Q. Go ahead. You were interpreting your notes. 11 A. His heart examination showed normal S1 and S2 12 sounds. 13 Q. What is written after CV? What word do you 14 see? 15 A. I don't see CV. Oh, S1, S2. 16 Q. This is S1, S2? 17 A. Yeah, first and second heart sounds. 18 Q. Under lung, what have you written? 19 A. Clear to auscultation. 20 Q. Okay. Go ahead. 21 A. His abdomen was soft and there was no 22 organomegaly, and bowels sounds were present. Rectal 23 exam was normal tone, no stool in the vault and I 24 felt something that appeared like, to me, on finger, 25 you know, like a rectal mass. 0043 1 His musculoskeletal exam was intact. 2 Neuropsychiatric examination was intact. There were 3 no additional notes I put in. And my impression was 4 that this was a 57 year old man with constipation and 5 recurrent rectal bleeding. And also what I showed 6 here is questionable rectal mass and he needed a 7 colonoscopy as a diagnostic test. 8 Q. At the bottom of the page under impression, 9 that is an abbreviation for constipation and rectal 10 bleeding? 11 A. Right. 12 Q. And underneath it says what? 13 A. Colonoscopy. 14 Q. It was anticipated that he would have this 15 procedure at South Pointe Hospital? 16 A. Yes. 17 Q. And the procedure was scheduled for the 14th 18 of April at 8:30 in the morning, correct? 19 A. Right. I'm sorry. I don't remember exactly 20 the time. It was 8:30 or 8:00, somewhere in the 21 morning. 22 Q. Was Dr. Gliner the physician who referred Mr. 23 Thompson to you? 24 A. Yes, he was. 25 Q. So after that physical examination, you had a 0044 1 suspicion that you had a rectal mass, correct? 2 A. Yes. 3 Q. And then he appeared for the colonoscopy as 4 scheduled on the 14th? 5 A. Exactly. 6 Q. At that time did he have good bowel 7 preparation? 8 A. Yes. 9 Q. Was he cooperative? 10 A. Very much so. 11 Q. Were there any acute bleeds from the time 12 when you last saw him on the 8th until he showed up 13 for the colonoscopy on the 14th? 14 A. Not as he told me about. 15 Q. Would it be fair to characterize the 16 colonoscopy as being necessary to determine, number 17 one, the cause of the potential rectal mass? Strike 18 that. 19 Would it be fair to characterize the 20 necessity for the colonoscopy to discover the cause 21 of the rectal bleeding and to analyze the potential 22 rectal mass? 23 A. Exactly. 24 Q. Was there anything else on your mind besides 25 the rectal bleeding and the potential mass that 0045 1 necessitated the colonoscopy, in your opinion? 2 A. Screening colonoscopy for his age. 3 Q. Anything other than that? 4 A. No. 5 Q. You dictated an operative note as a result of 6 the procedure that you undertook. 7 A. Yes, I did. 8 Q. What is the purpose of an operative note? 9 A. To know exactly what I saw, what I did. 10 99.9 percent I do it exactly on time. Or immediately 11 after the procedure, 100 percent of time. 12 Q. Go ahead. 13 A. That is it. 14 Q. Is there any reason to think that this 15 operative note was dictated at any other time other 16 than immediately following the procedure? 17 A. It should be time of dictation. They always 18 put the time of dictation and I didn't check that 19 there is a time of dictation. 20 Q. Can you tell from the second page of the 21 operative note at the top of the page under your 22 signature where it says D 04-14-04 at 8:43, does that 23 give you any indication as to when it was dictated? 24 If you look up here, Doctor. 25 A. Yeah. What does that say? The same date, 0046 1 04-14-04, dictated, yeah. 2 Q. Does it mean that what we see on the second 3 page of your operative note indicate that you 4 dictated your operative note at 8:43 a.m.? 5 A. Yes. The team has translated, I think. 6 Q. I am going to hand you what has been marked 7 as Exhibit No. 1, and I believe it's your two-page 8 operative note. Would you take a look at that and 9 tell me if that is, in fact, your operative note? 10 A. Yes, it is. 11 Q. Doctor, what time did your procedure start? 12 A. I don't remember. It should be in the 13 protocol of the procedure in the hospital chart. 14 (Thereupon, Plaintiff's Exhibit 2 to 15 the deposition of Mark Melamud, M.D. 16 was marked for identification.) 17 BY MS. McCARTHY: 18 Q. If you take a look at Exhibit No. 2, which is 19 the endoscopy order sheet, it says pre-procedure at 20 the very top on the left-hand side. Do you see that? 21 A. Yes. 22 Q. Can you tell from this sheet at what time the 23 procedure started? 24 A. There's no place for the time. I don't know 25 what you are referring to. This place? 0047 1 Q. If you take a look at the entire sheet, there 2 are various times written on the sheet. Can you 3 tell, from what is written on this sheet, what time 4 the procedure started? 5 A. There is a time here that says 8:20. 6 Q. Does that refer to when medication was given? 7 A. That's when, yeah, the sedation started. 8 Q. Can you tell at what time the procedure 9 started from this form? 10 A. No, I cannot. I don't see it. 11 Q. Is there a record in the chart that your 12 counsel is showing you or is setting next to you that 13 tells you at what time the procedure started? 14 MR. HUPP: Look at this 15 one. 16 A. Yeah. I can tell you what time the procedure 17 ended. 18 MR. HUPP: I don't know 19 what you mean by procedure. His part 20 of it or something else? 21 A. Yeah. The procedure is considered when the 22 sedation starts. That's when the procedure starts. 23 Q. Okay. 24 A. I don't think we time anything else. And 25 then when the procedure ended is when they take out 0048 1 my instrument. 2 Q. That's what I am trying to get at, Doctor. 3 A. Right. So you asked it in a way I couldn't 4 understand. 5 Q. That's why it's important you tell me if you 6 don't understand one of my questions. 7 A. M-hm. 8 Q. So the medication was given to the patient at 9 8:20 a.m., correct? 10 A. Right. 11 Q. At what time did the procedure end? 12 A. 8:50. 13 Q. The procedure ended at 8:50? 14 A. Right. That's what it says here. I don't 15 remember exactly, but here it says time 8:50. 16 Q. All right. Are you looking at any other 17 document? 18 A. I am looking at this document, too. The last 19 vital signs were taken in the room and documented 20 here 8:45. 21 Q. Would the last -- 22 A. And -- I'm sorry. 23 Q. Go ahead. 24 A. No, no. 25 Q. Would the scope have been removed prior to 0049 1 the last vital signs being taken? 2 A. Usually the scope is removed before. 3 Q. Doctor, would you agree that the purpose of 4 an operative note is to thoroughly and accurately 5 document the events occurring during surgery? 6 A. Exactly. 7 Q. It's also the purpose of the operative note 8 to indicate or illuminate the reasons for the 9 procedure, true? 10 A. The diagnoses is for the procedure. 11 Q. The indications for the procedure, true? 12 A. True. 13 Q. And then to document your postoperative 14 diagnosis and findings, correct? 15 A. Correct. 16 Q. Doctor, was this procedure that you undertook 17 on Mr. Thompson taped or otherwise recorded? 18 A. No, it was not, except for -- yeah, I'm 19 sorry. Pictures were taken. You said taped or 20 recorded. 21 Q. I understand. That's what I am asking. 22 Pictures were taken during the procedure by you? 23 A. Right. 24 Q. The procedure was not videotaped or digitally 25 recorded outside of the photographs that you are 0050 1 referring to? 2 A. No. 3 Q. Did you have any difficulty intubating the 4 patient or inserting the scope into the patient? 5 A. You mean intubating the colonoscope? 6 Q. Yes. 7 A. No. 8 Q. Did you have any difficulty navigating his 9 colon? 10 A. No. 11 Q. Was Mr. Thompson the first patient of the day 12 for you, the first colonoscopy of the day for you? 13 A. I don't remember this. 14 Q. Do you recall how many patients you had 15 scheduled that day? 16 A. No, I don't. 17 Q. Are there days in April of 1994 that you 18 typically performed colonoscopies? In other words, 19 do you have certain days designated as office days? 20 A. No. I do colonoscopies practically every 21 day. 22 Q. Now, according to your operative note, you 23 found two polyps during your colonoscopy; is that 24 correct? 25 A. Right. 0051 1 Q. Did you find any other polyps during your 2 procedure? 3 A. No. 4 Q. One of these polyps was in the descending 5 colon; is that correct? 6 A. That's what I described. 7 Q. And the other was in the proximal rectum? 8 A. That's what I described. 9 Q. During the procedure, you made the decision 10 to remove both of those polyps, correct? 11 A. Yes, I did. 12 Q. Why was it that you decided to remove both of 13 those polyps? 14 A. That's the reason for the procedure is to 15 remove polyps to prevent colon cancer. 16 Q. Describe for me the method you used to remove 17 the polyp in the descending colon. 18 A. I removed it with hot biopsy forceps. 19 Q. Describe for me how that works. 20 A. How it works, we prep the polyp or part of 21 the polyp. When I do it, I take the tip of the polyp 22 actually with the hot biopsy forceps and I cauterize 23 it, apply electrothermal -- electricity with thermal 24 effect. And then I pull the biopsy forceps and I 25 disrupt the tissue. 0052 1 Q. Does that describe the procedure? 2 A. You asked me to describe the polypectomy with 3 hot biopsy forceps. 4 Q. We are talking about the one in the 5 descending colon, right? 6 A. Right. Now, after the procedure, I always 7 look at the place, look at the coagulation, look if 8 any pieces are left, and look if perforation occurs 9 or occurred. 10 Q. What else? 11 A. That's it. Other bleeding, if there is 12 bleeding. 13 Q. Anything else? 14 A. That's it. 15 Q. So that I understand what you did in the 16 descending colon to remove this polyp, you took hold 17 of the tip of the polyp? 18 A. Right. 19 Q. With the forceps? 20 A. Right. 21 Q. You used the word we, but we are talking 22 about just you, correct? 23 A. That's me. 24 Q. There was no one else performing this 25 colonoscopy? 0053 1 A. It's me. We always say we because we work as 2 a team. We have two nurses in the room and we say -- 3 nurses say sometimes we removed the polyp. It means 4 that they participated in this and they do 5 participate because they prepare it and -- okay. 6 Q. All right. And then you said you cauterized 7 it? 8 A. M-hm. 9 Q. Is that yes? 10 A. Yes. 11 Q. And in order to cauterize it, you need to 12 apply almost a burn to the area. And I know that's 13 probably not the appropriate terminology. 14 A. It is appropriate. 15 Q. So the area where the polyp was attached to 16 the wall of the colon is then cauterized or burned by 17 you, true? 18 A. Absolutely. 19 Q. What is the purpose of cauterizing the area? 20 A. There are a few purposes. One, it is to 21 destroy the tissue that is left, the polyp tissue 22 that is left, number one. Number two, to stop 23 possible bleeding. 24 Q. Any other reason? 25 A. No. 0054 1 Q. Now, you mentioned that after you cauterized 2 the polyp, or cauterized the site, you then look at 3 the site for whether you have left pieces of the 4 polyp behind or for a perforation? 5 A. Exactly. 6 Q. Or for bleeding? 7 A. Exactly. 8 Q. In this instance, did you observe any 9 bleeding? 10 A. No. 11 Q. Did you observe any necrotic tissue in the 12 area of this polyp in the descending colon? 13 A. No. 14 Q. Did you observe anything abnormal about the 15 tissue in the area -- 16 A. Yeah. You see white rim. 17 Q. Let me finish. 18 A. I'm sorry. 19 Q. At the general area of this polyp in the 20 descending colon, did you observe anything abnormal 21 about the tissues in that area? 22 A. The tissue is not normal tissue after removal 23 of the polyp. You create a small ulcer by removing a 24 polyp or piece of tissue and you see some burn or 25 whitish discoloration, but I didn't see necrotic or 0055 1 black tissue. I didn't see a hole. I didn't see a 2 leak of air that we can determine by, as I said, 3 collapsing the walls of the colon. 4 Q. Other than the ulcer or burn that is created 5 during the cauterizing, did you observe anything 6 abnormal about the tissue surrounding this polyp? 7 A. No. 8 Q. How long did you observe the site following 9 the cauterization? 10 A. Few seconds, four or five seconds. 11 Q. At any point in time after the cauterization 12 and the four or five second observation of the site, 13 did you go back and look at the site prior to 14 removing the scope and concluding the procedure? 15 A. I don't recall it. 16 Q. Is it your custom and practice to go back and 17 review the site of any cauterization? 18 A. If I am in doubt, yes, or there is something 19 I feel is not right, then I will go back. 20 Q. In this case after you cauterized the polyp, 21 did you have any doubts? After you cauterized the 22 polyp, observed the area and moved on, did you have 23 any doubt or feeling that something wasn't right that 24 would cause you to go back to this particular site? 25 A. No, I didn't. 0056 1 Q. Why was it that you chose the hot forceps as 2 opposed to a snare to remove this polyp? 3 A. Well, there are many components of this 4 consideration. It's not only one. First of all, I 5 wouldn't do it if it would be on the right side of 6 the colon because the right colon is very thin, much 7 thinner than the left side of the colon. I was 8 dealing with the very distal part of the left colon. 9 Number two, it was a small polyp and I felt 10 it safer to take it and is easier to deliver the 11 tissue to the pathologist because I have the tissue 12 already in my biopsy forceps and we deliver it to the 13 pathologist. 14 Q. Any other reason? 15 A. I feel that, in my hands, it's as safe as the 16 snare. 17 Q. I am not being critical of that. I am just 18 asking. 19 A. No, no. I understand. 20 Actually, it's interesting that you can see 21 here how clean the colon was. This is when I did the 22 polypectomy, or before, there is no stool. It's very 23 clean walls. He did a good job preparing himself. 24 Q. Did you inject anything into the area of the 25 polyp in the descending colon at any time? 0057 1 A. No. 2 Q. Was cauterization the only thing that you had 3 done to the descending colon after you had removed 4 the polyp? 5 A. Yes, it was. 6 Q. So there wasn't a stitch put in? 7 A. No. 8 Q. You didn't observe any bleeding. Is that 9 your testimony? 10 A. Exactly. 11 Q. At the site of the polyp in the descending 12 colon? 13 A. Exactly. 14 Q. All right. You observed no pieces left over 15 from the polyp? 16 A. That's true. 17 Q. You did not observe any perforation in this 18 area, correct? 19 A. That's correct. 20 Q. And by this area, I mean the area of the 21 descending colon polyp. 22 A. Exactly. 23 Q. You didn't notice anything abnormal about the 24 site, correct? 25 A. That's correct. 0058 1 Q. All right. Let's talk about the polyp in the 2 proximal rectum. That polyp was likewise removed 3 with the hot forceps? 4 A. Exactly. 5 Q. Was there anything abnormal about the tissue 6 in the proximal rectum outside of the fact it had a 7 polyp? 8 A. No. 9 Q. Did you use the same procedure to remove this 10 polyp in the rectum that you had used in the 11 descending colon? 12 A. Yes. 13 Q. Which polyp was removed first? 14 A. Descending colon. 15 Q. Did you also cauterize the area of the polyp 16 in the rectum? 17 A. During the polypectomy? 18 Q. Yes. 19 A. Yes. 20 Q. Did you inject anything into that area 21 following the removal of the polyp? 22 A. No. 23 Q. Did you look at the site following the 24 removal of that polyp? 25 A. Can you repeat, please? 0059 1 Q. Did you look at the site following the 2 removal of that polyp? 3 A. Yes, I did. I always do. 4 Q. Did you see whether any pieces of polyp were 5 left over? 6 A. I hadn't seen it. 7 Q. Did you see any bleeding? 8 A. No, I hadn't. 9 Q. Did you see any perforation in that area? 10 A. No, I hadn't. 11 Q. Can you characterize the size of the polyp 12 that was in the descending colon? 13 A. I described it as five-by-five millimeters. 14 Q. Is that a large polyp? 15 A. It's a small. 16 Q. Small polyp? 17 What about the one in the rectum? 18 A. Same size. 19 Q. Small? 20 A. Small. 21 Q. And during the colonoscopy, you confirmed 22 there was a mass in the anus? 23 A. That is what I photographed, too. 24 Q. And this was partially removed? 25 A. This was partially removed. 0060 1 Q. Why only partially? 2 A. Most likely I removed the part that was 3 sticking out. And because of the proximity to the 4 anus, I didn't want to damage the anus if this is 5 just hypertrophied hemorrhoidal tissue. There was no 6 point. And if this is cancer, it would need surgery 7 anyway. 8 Q. What was your follow-up plan following this 9 procedure as it relates to the mass? 10 A. To see the pathology report. And, again, if 11 it's malignant, he would need surgery. 12 Q. Was there any bleeding associated with the 13 partial removal of the mass? 14 A. I would describe it. 15 Q. I'm sorry? 16 A. I would describe it if it would. No. 17 Q. So you found no bleeding when you removed the 18 mass? 19 A. No. 20 Q. Was any area of the mass cauterized, stitched 21 or otherwise -- strike that. 22 How did you -- 23 A. Cauterized, yes. And I think I said here 24 with the snare. 25 Q. Did you have to put any stitch in or 0061 1 cauterize that area? 2 A. No, I didn't. Again, cautery, when you 3 remove the snare, this is cautery because you burn it 4 through the snare. The snare is hot. 5 Q. Very good. We can agree, Doctor, that prior 6 to the conclusion of the procedure it's important for 7 you as the surgeon to inspect the operative field, 8 correct? 9 A. (Indicating.) 10 Q. You have to answer out loud. 11 A. Yes. 12 Q. To ensure that hemostasis is obtained? 13 A. Exactly. 14 Q. To make certain there is no evidence of 15 bleeding? 16 A. Exactly. 17 Q. Or no evidence of a perforation? 18 A. Exactly. 19 Q. There is no notation in your operative note 20 that you made certain to inspect the operative field, 21 correct? 22 A. You are right. 23 Q. To make certain that hemostasis is obtained? 24 A. Right. 25 Q. To make certain that there is no evidence of 0062 1 bleeding or perforation? 2 A. You are right. 3 Q. 1,500 colonoscopies a year since -- 4 A. Approximately. 5 Q. --'04. Is that about right? Is that what 6 you told me? 7 A. Doing the math, during the last five years 8 about 1,500 colonoscopies because the volume 9 increased with the screening procedures. Prior to 10 it, probably between 800 and 1,000 a year. 11 Q. Is there anything else about the procedure 12 itself that you can recall that we have not talked 13 about? 14 A. I think now you know more about the procedure 15 than I do. No. We discussed a lot. I mean, I can 16 describe in detail how it's done and we look in 17 everything, but we don't dictate because it's a part 18 of the routine of the procedure. We don't dictate 19 how we turn the scope and how we go around the 20 flexures and how we ask sometimes the nurse to 21 support the abdomen because it's a routine part of 22 the procedure. 23 Q. Is there anything that you can recall of 24 significance to this procedure that we have not 25 talked about? 0063 1 A. Looking from the time of the beginning to the 2 end of the procedure, I can say that the procedure 3 was uneventful. I talked to the patient before he 4 was discharged. I always talk to my patients before 5 they are discharged. 6 Q. We will get to that in a minute. Just after 7 the scope was removed. 8 A. The scope, no, nothing more. 9 Q. After you had concluded this procedure, did 10 you have an opinion as to what was causing this 11 intermittent rectal bleeding? 12 A. I thought about the rectal mass that I 13 described, being malignant or benign, this could 14 cause the bleeding. 15 Q. Did you have any opinion as to what was 16 causing the constipation? 17 A. This was a minor thought of mine. The 18 constipation, I think, probably majority of men at 19 this age don't eat appropriately, don't eat enough 20 fiber and this is the major cause of constipation. 21 Q. Okay. 22 (Thereupon, Plaintiff's Exhibit 3 to 23 the deposition of Mark Melamud, M.D. 24 was marked for identification.) 25 /// 0064 1 BY MS. McCARTHY: 2 Q. Doctor, I am going to hand you what has been 3 marked as Exhibit No. 3. Can you identify that for 4 us, please? 5 A. Two polyps. 6 Q. Let me back up. Exhibit No. 3 are 7 photographs that were taken during the colonoscopy? 8 A. Exhibit No. 3, you said? 9 Q. Exhibit 3 -- 10 A. Okay. 11 Q. -- are pictures that were taken. 12 A. During the colonoscopy. 13 Q. Of Mr. Thompson? 14 A. Right. 15 Q. If we start in the black part of the 16 photograph, look at what is image number one on the 17 top left-hand side. Can you tell us what is depicted 18 in that image? 19 A. Descending colon polyp. 20 Q. That is the polyp itself? 21 A. You see the tissue and you see polyp here. 22 Q. The white sort of -- 23 A. Well, yeah, the small elevation here, this is 24 the polyp. 25 Q. All right. In image number two directly to 0065 1 the right of image number one is what? 2 A. Just one second. I apologize. What did you 3 say? This is, you said, image number three? 4 Q. No. I am talking about image number one, 5 then we will go to number two, then we will go to 6 this, then we will go to number three. 7 A. Okay. This is a polyp in descending colon. 8 Q. Is there any other way you want to describe 9 what we see in image number one? 10 A. Sessile, small size from the picture, 11 probably about five millimeters, four to five, five 12 millimeters approximate. That's it. 13 Q. Image number two? 14 A. This is proximal rectal polyp, again size 15 four to five millimeters, five millimeters maybe. 16 Now, it's difficult to say, but this is discrete 17 polyp. You see this polyp for some reason better 18 than here because of the technical. 19 Q. And if we look at image number two, it looks 20 like there's sort of a salmon color or pinkish circle 21 in image number two. And then the white dot that we 22 see sort of toward the bottom right-hand corner is 23 the polyp, correct? 24 A. This is the polyp. 25 Q. Okay. Anything else you want to -- any other 0066 1 -- 2 A. This is belt of Houston it's called, and this 3 is how I can tell this is rectum. 4 Q. Any other way you want to describe what we 5 see in image number two? 6 A. Sessile, small sessile polyp. 7 Q. Directly to the right of image number two, we 8 see what I believe is a picture of the colon -- 9 A. M-hm. 10 Q. -- of the intestine? 11 A. M-hm. 12 Q. On my copy on the right-hand side there seems 13 to be a red and maybe a blue dot. Do you see that? 14 A. Yeah. 15 Q. What is that? 16 A. Well, that's incorrect location of the polyp. 17 Q. All right. Can you show me where on this 18 diagram the descending colon is located? 19 A. Probably lower. I would say here. 20 Q. All right. We just on Exhibit No. 3 drew a 21 round circle; is that right? 22 A. You know, I didn't want to -- I apologize if 23 I spoiled the exhibit, but it's somewhere here on 24 this area. 25 Q. My question was where is the descending 0067 1 colon? 2 A. The descending colon starts from the splenic 3 flexure and goes down to the sigmoid colon. Here is 4 where the sigmoid colon starts, and it's in the form 5 of the letter S. 6 Q. Now, you drew a dot. Were you documenting 7 where you recall the descending -- 8 A. That's how I described distal descending 9 colon. 10 Q. That's where you believe the first polyp you 11 removed was located? 12 A. Right. 13 Q. Can I make that a little bit more pronounced 14 so when we copy it we can see it? 15 And you drew a round dot below what is a red 16 dot that is designated as number one polyp, true? 17 A. M-hm. 18 Q. Is that right? 19 A. Yes. This is what is number one, I 20 considered the correct location. 21 Q. Understood, directly below the red dot. 22 Is this, the red and blue dot, incorrectly 23 documenting the location of both of these polyps? 24 A. It was supposed to document the location of 25 one of the polyps. I don't know why is it two here. 0068 1 Yes. It's incorrect. 2 Q. Now, can you document on this colon that we 3 see where the polyp in the rectum was located? 4 A. Yes. 5 Q. All right. Further down below the descending 6 colon is the rectal polyp, correct? 7 A. There is sigmoid colon and then there's the 8 rectum. 9 MR. HUPP: There's a 10 green dot there. 11 A. There is something here. I think there is a 12 green dot. 13 Q. I can barely see it. That's fine. 14 A. Yeah. You know what? There are so many dots 15 there. I think now I tell you the correct location 16 right here. 17 Q. Can you tell us where on this diagram the 18 anal mass was located? 19 A. Yeah. Here is the anal. This is my scope. 20 I can see it's retroflexed view of the anus. 21 Q. That is in number three? 22 A. Number three, right. And it's right here or 23 the other side. I cannot say from the picture. 24 Q. All right. Where we see these red, blue and 25 green dots, who put those in there? 0069 1 A. The nurse after the procedure because when I 2 take the photograph, I tell the nurse where they are 3 located and the nurse puts that there. 4 Q. All right. To make this clear when we go to 5 read this transcript, is it all right with you if I 6 draw a line across here and put number one so we know 7 that's the descending colon polyp? 8 A. Yes. 9 MR. HUPP: Yes. We will 10 agree to that. 11 BY MS. McCARTHY: 12 Q. And put a line across for number two -- 13 A. I agree, number two. 14 Q. -- as the rectal polyp? 15 A. M-hm. 16 Q. And then number three as the mass? 17 A. It should be larger to compare with this. 18 Q. Understood. We are not trying to be an 19 artist here. 20 All right. So after the procedure -- do you 21 need to take that, Doctor? 22 A. No. 23 Q. After the procedure was concluded, did you 24 speak with the patient? 25 A. Absolutely. 0070 1 Q. After the surgery, what was he instructed to 2 do? Describe for me your conversation with him. 3 A. First of all, I talked to the patient before 4 discharge. It's my rule and the rule in the hospital 5 that we always talk to the patient before discharge. 6 And the instructions are you can start eating today, 7 don't take aspirin or any blood thinners, 8 nonsteroidal anti-inflammatory drugs for two weeks. 9 In case of any pain, discomfort, fever, chills, call 10 the doctor or come to the emergency room. And the 11 same in written form is handed to the patient and 12 they sign that they read it. 13 Q. Do you discuss with the patient the potential 14 of a perforation of the colon? 15 A. Absolutely. 16 Q. At this point in time? 17 A. No. 18 Q. Prior to the procedure you discuss it? 19 A. Absolutely, yes. And every patient who I see 20 has a discussion with me, that's why I see the 21 patient, before the colonoscopy. I never do 22 colonoscopies, even screening colonoscopies, without 23 talking to the patient. 24 Q. Doctor, I need to back up for a second. What 25 is the purpose of cauterizing the area of the polyp 0071 1 and cauterizing the area of the mass? 2 A. You know, with a cautery, we remove the 3 polyp. It's a way to cut the tissue with cautery and 4 at the same time to stop or prevent potential 5 bleeding. 6 Q. Is one of the risks of cauterizing an area 7 that you will perforate the colon? 8 MR. HUPP: Objection. 9 Go ahead. 10 A. One of the risks of a polypectomy is 11 perforation. 12 Q. Is there anything about your conversation 13 with Mr. Thompson following his procedure before 14 discharge that we haven't talked about? 15 A. M-hm. 16 Q. Tell me about that. 17 A. I asked him to make an appointment in my 18 office because I expected the biopsy to be back in a 19 week or two and I wanted to sit down with him and 20 discuss the results of the biopsy. 21 Q. Anything else you discussed with him? 22 A. The biopsy, I mean, the rectal mass, that's 23 what worried me most. 24 Q. Understood. 25 A. I always ask how the patient feels. I always 0072 1 examine the patient's abdomen before they go. The 2 nurses examine the patient's abdomen, vital signs and 3 wait for the patient to pass the flatulence. 4 Q. How long did you examine Mr. Thompson's 5 abdomen before he was discharged? 6 A. Palpate. 7 Q. Any other way? 8 A. No. 9 Q. Did you listen for anything? 10 A. I didn't listen to his abdomen, no. 11 Q. Am I correct that there were no tests 12 performed on him other than this palpation to his 13 abdomen prior -- 14 A. Vital signs were taken. 15 Q. Prior to discharge, was any abdominal film 16 done? 17 A. No. 18 Q. No upright KUB? 19 A. No. 20 Q. Anything else about the conversation prior to 21 discharge that we haven't discussed? 22 A. Not as I can recall. 23 Q. Do you recall him being there with any family 24 member? 25 A. When I examined and talked to him, no. 0073 1 Q. Do you recall speaking to any family member 2 prior to his discharge? 3 A. No. 4 Q. Anything else about your examination of him 5 before he was discharged that we haven't discussed? 6 A. Not as I can recall. I mean, I always speak 7 to the nurses as well. 8 Q. What conversation do you recall speaking 9 about? 10 A. I recall them telling that he was doing well 11 after the discharged. We get the patient up one hour 12 in post op area. He was passing flatulence. His 13 vital signs remained stable. There were no reasons 14 to keep him longer. 15 Q. Did you make any notations in the hospital 16 chart following the procedure before he was 17 discharged? 18 A. No. There was no even place for this. It's 19 a routine. Before discharge, the nurses do notes and 20 we don't do any progress notes. 21 Q. All right. When did you next speak to Mr. 22 Thompson? 23 A. Next I spoke to him on the phone. 24 Q. When? 25 A. In my recollection it was after hours. 0074 1 Q. Same day as the procedure? 2 A. Same day. 3 Q. And after hours means what? 4 A. After 6:00, 7:00. I think it was around 5 8:00. 6 Q. What causes you to think it was around 8:00 7 p.m.? 8 A. Well, at that time I remembered it better 9 than now and I documented that at 8:00 he called me. 10 I felt it was -- usually I finish my work -- I come 11 home usually at 7:00 and this was when I already was 12 at home. This I remember. 13 Q. Where did you document in your office notes 14 that he called you at 8:00 p.m.? 15 A. I didn't document. 16 MR. HUPP: It's in the 17 other chart. 18 A. Yeah, in the hospital chart. 19 Q. That was the next day, wasn't it? 20 A. Next, early morning. 21 Q. Right, the next day. 22 A. The same day, I couldn't document it. 23 Q. That's what I'm asking you. 24 A. No, I didn't. 25 Q. There is no documentation in your office 0075 1 chart of your discussion with Mr. Thompson the 2 evening of his colonoscopy, correct? 3 A. Exactly. 4 Q. You did write a note as a GI consult in the 5 hospital chart the next day, correct? 6 A. Exactly. 7 Q. Is there any other notation that you made, 8 either in the hospital chart or in your office note 9 or chart or anyplace else, that you documented this 10 phone call with him from the evening of the 11 colonoscopy? 12 A. No. 13 Q. Tell me what was the purpose of his call to 14 you. 15 A. He called me. My answering service paged me. 16 I think I answered the page within few minutes or ten 17 minutes or less than ten minutes. He told me that he 18 couldn't pass the flatulence, felt a little bit 19 bloated. 20 Q. Anything else? 21 A. I asked him if he had pain. He said no. I 22 asked him if he feels chilly or he has fever. He 23 said no. 24 Q. Anything else? 25 A. I told him -- I asked him what he was doing 0076 1 actually at that time. And he told me that he was 2 laying on the sofa watching TV. He was joking. He 3 didn't sound like he was in pain. One of his jokes 4 was about beer. And I don't remember, and I kind of 5 try to reconstruct it in my mind a few times, what 6 did he mean with the beer? Did he buy beer? Did he 7 want to drink beer or did he ask me if he can drink 8 beer? Although the instructions clearly say that 9 they should not have alcohol within 24 hours. 10 Q. Do you have a specific recollection of 11 discussing his wanting to have beer that evening? 12 MR. HUPP: Let me 13 object. 14 A. I don't. I don't have specific. I remember 15 he talked about beer and there was something joking. 16 I didn't take it seriously. 17 Q. Anything else about the conversation you had 18 with him that evening? 19 A. I also told him if he feels -- if he does not 20 feel well or he does not feel better, he should come 21 to the emergency room. 22 Q. Anything else? 23 A. I also advised him if he can not pass 24 flatulence to take a Fleet enema and it will help him 25 to expel air. 0077 1 Q. Anything else? 2 A. And I also told him that if this does not 3 help, or wouldn't help, to come to the emergency 4 room. 5 Q. Anything else? 6 A. Not really, to call me if he does not feel 7 better or come to emergency room, one of two I think 8 I said. 9 Q. Describe for me the tools that are enclosed 10 in a Fleet enema or what is enclosed in the Fleet 11 enema packaging. 12 A. The tools? 13 Q. Yeah. 14 A. It's a disposable enema from 25 to 50 CCs 15 milliliters of Fleet Phospho-Soda. It is an irritant 16 to the mucosa and induces peristalsis. 17 Q. Is there a -- as I understand it, there's a 18 plastic container. 19 A. It's a plastic tube that has a syringe type 20 and small cannula. The Fleet enema usually goes 21 about two, three inches in and not above the rectum. 22 Q. All right. The enema, the Fleet enema that 23 we are talking about, would that, if it was used 24 properly, would that have passed by or come into 25 contact with the area of the mass? 0078 1 A. Rectal mass? 2 Q. Well, the mass that you removed. 3 A. Yes. 4 Q. So how much of the cannula would have come 5 into contact with the area of the rectal mass or the 6 anal mass? 7 A. It's a very thin cannula. The cannula itself 8 is probably, I don't know, four or five millimeters 9 wide. The mass was not obstructing the lumen. It 10 was not a mass that he couldn't move his bowels. The 11 diameter of the bowels is probably 15 times larger 12 than the diameter of the cannula. 13 Q. So this cannula would have passed by the site 14 of the mass, correct? 15 A. Absolutely. 16 Q. Would it have reached the point where the 17 rectal polyp was removed? 18 A. Maybe or maybe not. 19 Q. Can we agree certainly if used properly it 20 would not have reached the area of the descending 21 colon polyp? 22 A. Exactly. 23 Q. When were you next notified of anything 24 occurring with Mr. Thompson? In other words, did his 25 family call you back? 0079 1 A. No. 2 Q. So you didn't hear from him or any member of 3 his family for the rest of the evening; is that true? 4 A. Never. 5 Q. All right. When was the next time you had 6 any involvement with Mr. Thompson? 7 A. Clarify what you mean involvement. When I 8 saw him? 9 Q. When was the next time you had anything to do 10 with the patient? 11 A. I saw him next morning, early in the morning. 12 I think it was about 7:00 a.m. when I saw him and 13 8:00 a.m. when I put a note. 14 Q. 8:00 a.m.? 15 A. Yeah. 16 Q. You did a note at 8:00 a.m.? 17 A. Right. 18 Q. Do you have a copy of that 8:00 a.m. note? 19 A. Yeah. This is it. I think it's 8:00 a.m. 20 For some reason it says 8:00 p.m. I know I saw him 21 early in the morning. 22 Q. Is there another note that says -- can we 23 agree that the note you are just showing me says 8:00 24 p.m.? 25 A. Yes. 0080 1 (Thereupon, Plaintiff's Exhibit 4 to 2 the deposition of Mark Melamud, M.D. 3 was marked for identification.) 4 BY MS. McCARTHY: 5 Q. I am going to hand you a copy of Exhibit 6 No. 4. Is that a copy of the 8:00 p.m. note that 7 you -- 8 A. Exactly. 9 Q. -- wrote in the chart? 10 A. Yeah. 11 Q. Is there any other note that reflects your 12 visit with Mr. Thompson other than this 8:00 p.m. 13 note that is Exhibit 4? 14 A. I don't remember any other notes. 15 Q. All right. Could you read slowly for us what 16 you have written under date and time on Exhibit No. 17 4? 18 A. Fifty-seven year old male. 19 Q. Let's start at the top, 8:00 p.m. 20 A. 8:00 p.m., 04-15-04, GI note, 57 year old 21 male who underwent a colonoscopy with polypectomy 22 yesterday at approximately 7:30 - 8:00 a.m. 23 Findings: Two small polyps at the descending 24 colon and rectum and also an anal mass. Both polyps 25 were taken off with hot biopsy forceps. A piece of 0081 1 anal mass has been snared and sent to the pathology. 2 Patient had no complaints after the procedure 3 and had been discharged home. He called me from home 4 at about 8:00 p.m. -- again, I didn't specify here -- 5 complaining of gas in the abdomen. He denied fever, 6 chills or abdominal pain. I offered him to have an 7 enema that would help him to expel gas and call me if 8 he doesn't feel better. 9 On examination he's on the respirator 10 non-responding to stimuli. Hypertensive, on 11 Pressors. Patient is do not resuscitate or DNR, 12 abdomen distended, bowel sounds diminished. 13 Abdominal film consistent with intra-peritoneal air, 14 consistent with colon perforation. 15 Patient apparently had cardiopulmonary arrest 16 of questionable etiology at midnight. No prior 17 history of coronary artery disease or cardiac 18 arrhythmias. 19 And, number two, peritonitis secondary to 20 polypectomy with hot biopsy forceps. 21 Suggest: Continue IV antibiotics. 22 Q. And then your signature? 23 A. Yes. 24 Q. Does that complete any notations you made in 25 the chart prior to Mr. Thompson's death? 0082 1 A. I think I didn't do any other notes. 2 Q. This note that you wrote at 8:00 on the 15th, 3 did you have a complete copy of the operative note at 4 your disposal when you wrote this note? 5 A. I don't remember. 6 Q. If an operative note is typed within three 7 hours of its dictation, how long before it gets into 8 the chart typically? 9 A. Same day. 10 Q. So the probability is that your operative 11 note was in the chart when you wrote this 8:00 p.m. 12 note on April 15th, correct? 13 MR. HUPP: Objection. 14 Are you talking about his office 15 chart? 16 MS. McCARTHY: No, in the 17 hospital chart. 18 A. I don't recall it. 19 Q. Well, if -- 20 A. I don't recall if I relied on my memory or I 21 read the dictation. 22 Q. It's possible that you would have read your 23 dictation in order to do this 8:00 p.m. note, 24 correct? 25 A. Could be. 0083 1 Q. All right. 2 A. I don't recall. 3 Q. This note that you wrote at 8:00 p.m. does 4 not reflect your comments to Mr. Thompson that if 5 he's not feeling better he should go to the 6 emergency, correct? 7 A. It does not reflect the whole conversation, 8 just part of the conversation. 9 Q. It does not reflect that you advised Mr. 10 Thompson to go to the emergency room if he did not 11 feel well, correct? 12 A. I didn't write it here. You are right. 13 Q. Did you document anywhere else in any 14 document at all that you advised Mr. Thompson to go 15 to the emergency room if he did not feel well? 16 A. No. He expired sudden death and I didn't 17 want to do any notes after his expiration. 18 Q. Why not? 19 A. I don't know why. I decided at that time 20 it's not fair to do notes after he expired already. 21 Q. Why is that unfair to do notes? 22 A. I didn't. At that time I decided this way 23 and I didn't do any notes. 24 (Thereupon, Plaintiff's Exhibits 5 and 25 6 to the deposition of Mark Melamud, 0084 1 M.D. were marked for identification.) 2 BY MS. McCARTHY: 3 Q. I am going to hand you what has been marked 4 as Exhibits No. 5 and 6. Could you identify those, 5 please? 6 A. Well, probably you have to identify it for 7 me. I don't know what it is. It could be anything. 8 MR. HUPP: We will 9 stipulate they are photographs from 10 the county coroner's office. 11 A. Right. If it is, it's probably a piece of -- 12 MR. HUPP: Wait for the 13 next question. 14 We will stipulate as to what 15 they are. 16 Go ahead. 17 Q. Well, that's what I want to find out. To the 18 extent that you know what they are, you apparently -- 19 A. I have seen it, no. I've seen it first 20 time -- 21 Q. Let me finish my question, please. 22 A. Sure. 23 Q. Apparently you identified these photographs 24 at the start of your deposition as something you 25 reviewed, correct? 0085 1 A. Not correct. I saw the pictures half an hour 2 before I came here. 3 Q. All right. What did you understand these 4 pictures, Exhibits 5 and 6, were of that you were 5 shown to look at? 6 A. My lawyer told me that those are parts of the 7 colon, or this is the part. Actually, it's identical 8 picture, part of the colon with the polyp side that 9 probably was perforated. 10 Q. Do you know from looking at Exhibit No. 5 11 what part of the colon this is? 12 A. No. 13 Q. Do you know from looking at Exhibit No. 6 14 what part of the colon this is? 15 A. No. 16 Q. Can you describe for me what you see in the 17 center of Exhibit No. 5, right here, if you are able 18 to? 19 A. Well, what I see here is colonic mucosa with 20 ulcer created by probably, if I assume that this is a 21 place of polypectomy, probably by cautery. 22 Q. We are looking at the yellowish gold mark? 23 A. That's right. 24 Q. At the top of Exhibit No. 5 toward the center 25 top of the specimen in Exhibit No. 5, correct? 0086 1 A. Right. 2 Q. Is it your opinion -- let's look at Exhibit 3 No. 5 first. Is it your opinion that what we see in 4 Exhibit No. 5 was caused by cauterization? 5 A. It's possible. 6 Q. All right. What other possible causes for 7 that goldish circle that we see in Exhibit No. 5? 8 A. If this is from this particular patient from 9 this particular place, it must be the polypectomy 10 site. 11 I'm sorry. I just want to clarify that we 12 are talking about the postmortem something. I don't 13 know what happened. I was not present there. It 14 could be an accidental, you know, perforation during 15 postmortem examination. How it looked like, though, 16 it looked like a cauterized ulcer. 17 Q. What is below the cauterized ulcer, the brown 18 reddish part below? 19 A. I think it's a little bit of blood or 20 miniature pool of blood. 21 Q. Caused by what? 22 A. Listen, the tissue was cut. You see the cuts 23 around. I don't know. 24 Q. Cut at what point? 25 A. During the postmortem. 0087 1 Q. Is it possible that that reddish area below 2 the cauterization gold area was caused during the 3 polyp removal? 4 MR. HUPP: Objection to 5 possibility. 6 A. Difficult to speculate. 7 Q. Do you see a perforation in Exhibit No. 5? 8 A. I don't see a clear perforation. I see an 9 ulcer. I don't see it going through and through. 10 Q. In Exhibit No. 6 can you identify any site of 11 polypectomy in that exhibit? 12 A. Well, I assume it's from the same area. 13 There is no way for me to identify the area. 14 Q. You don't know what we see in Exhibit No. 6; 15 is that correct? 16 A. No. I can see there is, again, an ulceration 17 caused by probably, probably or possibly, cautery 18 because there is whitish discoloration around this 19 ulceration. 20 Q. Do you see any perforation in Exhibit No. 6? 21 A. I wouldn't call it perforation, no. 22 Q. What would you call it? 23 A. Ulceration. 24 Q. Do you have an opinion as to whether Mr. 25 Thompson suffered a perforation of the descending 0088 1 colon prior to his death? 2 MR. HUPP: Objection. 3 Go ahead. 4 A. No. 5 Q. You have no opinion? 6 A. I cannot -- I cannot state that it happened 7 prior, prior to his death, maybe, could be. He spent 8 like 24 hours or more in the hospital. Degradation 9 of the thermal injury or the tissue where the polyp 10 was removed can happen 24 hours later, two days 11 later. The only thing I can state is that during the 12 procedure, immediately after the procedure or even 13 when he called me, there were no clinical symptoms or 14 signs of perforation. 15 Q. Doctor, is it more likely to get a 16 perforation during a polypectomy or at the hospital 17 after the patient is found unresponsive following a 18 colonoscopy? 19 A. And polypectomy. That was -- is your 20 question -- can you clarify for me? 21 Q. Sure. Which is more likely: A perforation 22 following a polypectomy or a perforation following 23 the patient being found unresponsive after a 24 colonoscopy? 25 MR. HUPP: Objection. 0089 1 If you understand it. 2 A. I don't understand your question. I don't 3 think the unresponsiveness could be the result of 4 colonoscopy or perforation. 5 Q. What do you believe to be the cause of his 6 unresponsive nature? 7 MR. HUPP: Objection. 8 Do you have an opinion? You 9 don't have to have an opinion. 10 A. You are talking about sudden death. And the 11 colonoscopy, even with perforation, is not a cause or 12 known cause of sudden death. Cardiovascular event, 13 cardiac arrhythmia, seizures with some brain damage, 14 continued or prolonged seizures. 15 Q. Can acute peritonitis lead to acute ischemic 16 cerebral infarction? 17 A. No. 18 Q. Can acute peritonitis lead to cardiopulmonary 19 arrest? 20 A. No, especially in someone without any history 21 of coronary artery disease. 22 Q. Do you have an opinion as to whether Mr. 23 Thompson had a perforation at the site of the 24 descending colon polyp? 25 MR. HUPP: I thought it 0090 1 was asked and answered. Objection. 2 Go ahead. 3 A. Did I know it before? 4 Q. I didn't ask you that. 5 A. Can you repeat or clarify your question? 6 Q. Sure. Did Mr. Thompson have a perforation at 7 or about the site of the polypectomy in the 8 descending colon? 9 MR. HUPP: Objection. 10 A. I have no knowledge. I cannot answer this 11 question. I don't know. 12 THE WITNESS: Something 13 wrong? 14 MR. HUPP: No. That's 15 fine. Just keep answering. 16 BY MS. McCARTHY: 17 Q. If we take a look at Exhibit No. 4, your 18 notes, from 8:00 p.m. on 04-15 at the bottom where 19 you wrote colonic perforation, do you see that? 20 A. M-hm. 21 Q. To what were you referring? 22 A. To the intra-peritoneal air. And this could 23 be only from perforation. 24 Q. At the time you wrote this note you believed 25 this patient to have a perforation, correct? 0091 1 A. Yes. 2 Q. When did you change your mind that the 3 patient did not have a perforation? 4 A. I didn't say the patient didn't have a 5 perforation. 6 Q. Did the patient have a perforation? 7 A. You asked me if the patient had the 8 perforation from the descending colon polyp. I said 9 I don't know from where. 10 Q. Where do you believe? 11 A. I don't know from descending or any other 12 place. 13 Q. All right. You do not have an opinion as to 14 where the colonic perforation was located that you 15 were describing in your 8:00 p.m. note, correct? 16 A. Exactly. 17 Q. And you have not had an opportunity to review 18 the autopsy report, correct? 19 A. No, I didn't. 20 Q. You did review it? 21 A. No. 22 Q. Have you been provided with any information 23 as to the contents of the autopsy report? 24 A. Not really. 25 Q. Not really or not at all? 0092 1 A. Not at all. 2 MR. HUPP: I can tell 3 you for the record he's not going to 4 comment on the autopsy report at the 5 time of trial. I have an expert to do 6 that. I am not going to ask him 7 anything about it. I don't know if 8 that matters. 9 MS. McCARTHY: Not really, 10 but thank you. 11 BY MS. McCARTHY: 12 Q. Let's go back to Exhibit No. 3. In terms of 13 the location of the descending colon polyp, would it 14 be fair to describe it at the region near the 15 junction of the sigmoid colon? 16 A. I described it as a distal descending colon, 17 and that's what I can repeat. 18 Q. What comes below the descending colon? 19 A. Sigmoid colon. 20 Q. Did you learn from any source that the 21 coroner discovered a .6 centimeter perforation of the 22 colon in the distal descending region near the 23 junction of the sigmoid colon? 24 THE WITNESS: Should I 25 answer? 0093 1 MR. HUPP: Sure. Go 2 ahead. 3 A. I heard my lawyer talking about it. 4 Q. Do you have any reason as you sit here today 5 to disagree with that finding? 6 A. Well, I can comment on this finding and I 7 probably would disagree with the size because in live 8 tissue, the size was much smaller. 9 Q. What do you mean? 10 A. Because the dead tissue, degraded tissue, 11 makes the hole larger. 12 Q. How much larger? 13 A. I have no expert opinion, but I know it makes 14 the hole larger. And I know it was not six 15 millimeters because the tissue I removed, and this is 16 documented in the pathology report, was only two 17 millimeters. 18 Q. Anything else? Any other comments you have 19 about that finding? 20 A. No. 21 Q. Did you have any discussion with the family 22 when you came to see him in the hospital after he had 23 been admitted? 24 A. I haven't seen the family. 25 Q. You did not see the family at the bedside 0094 1 when you examined the patient? 2 A. No. 3 Q. Did you consult with any other physician 4 about this patient after he was discharged from your 5 colonoscopy procedure? 6 A. Did I consult? 7 Q. Yeah. 8 A. No. 9 Q. Did you discuss him with any other physician 10 after he was discharged from your colonoscopy 11 procedure? 12 A. Until? 13 Q. Until the 17th of April. 14 A. No. 15 Q. Doctor, you expected Mr. Thompson to survive 16 your colon procedure, correct? 17 A. Absolutely. 18 Q. Did the perforation that you documented in 19 your 8:00 p.m. April 15th note occur during the 20 colonoscopy? 21 MR. HUPP: Objection. 22 Asked and answered. 23 Go ahead. 24 A. I don't think so. 25 Q. Why do you say that? 0095 1 A. I didn't see the signs of perforation and 2 there were no symptoms. 3 Q. Is it possible that the perforation that was 4 documented on the autopsy and the perforation which 5 you noted in your 8:00 p.m. note, is it possible that 6 that occurred during your surgery? 7 MR. HUPP: Objection. 8 Go ahead. 9 A. I don't think so. I think it occurred later. 10 Q. It occurred later? 11 A. M-hm. 12 Q. The perforation occurred later is your 13 testimony? 14 A. Yes. 15 Q. What caused the perforation later on? 16 A. Thermal effect. 17 Q. I'm sorry? 18 A. Thermal effect. 19 Q. Thermal? 20 A. Thermal effect. 21 Q. Okay. Of what? 22 A. To the tissue that I caused with the hot 23 biopsy forceps, but it can occur later. It doesn't 24 have to occur right away. 25 Q. I am not following you at all. Are you 0096 1 saying that the perforation was caused by thermal 2 heat? 3 A. Right, heat. By heat effect, not 4 perforation. The damage to the tissue was done by 5 the heat effect and that's what you want to do when 6 you remove the polyp with the heat effect actually. 7 But the perforation, I mean, penetration through the 8 tissue can happen later and it's not unknown to 9 happen later. How it happens, the tissue that have 10 this heat effect, thermal effect, within a few hours 11 can degrade, become thinner, and if we have gas in 12 the rectum that stretches the rectum in this area, 13 the gas can leak through or perforate or make a hole 14 or rupture this tissue that is very fragile because 15 of this thermal effect. 16 Q. And when the hole is created, the risk of 17 peritonitis is created, correct? 18 A. Well, with a hole of this size, we are 19 talking about localized peritonitis. We are talking 20 about infection in the area of perforation. We are 21 talking about peritonitis, if any. And I don't know 22 what is described there. Peritonitis that happens on 23 a clean colon, as I say, a colon that is clean, when 24 we operate on such colons, it means we open the 25 abdomen, we take out the colon, we cut the colon, 0097 1 suture it together and, yes, some irritation 2 peritonitis happens, but it's not defused 3 peritonitis. It's local peritonitis. 4 Q. The hole created by the cauterization can 5 also occur at the time of cauterization, correct? 6 A. It can. 7 Q. If you had recommended that Mr. Thompson go 8 to the emergency room at the time of your 8:00 p.m. 9 phone call with him on the 14th of April, would a 10 perforation likely have been diagnosed at that time? 11 MR. HUPP: Objection. 12 A. I cannot speculate, you know. 13 Q. If a perforation had been diagnosed on the 14 evening of April 14th, would Mr. Thompson have likely 15 survived the perforation? 16 MR. HUPP: Objection. 17 A. I don't think that his death was caused by 18 perforation. 19 Q. You don't think what was caused by 20 perforation? 21 A. His death. 22 Q. Okay. So is it your opinion that if the 23 perforation had been diagnosed on the evening of the 24 14th, he would have survived the perforation? 25 A. I didn't say so. I said I don't believe the 0098 1 death was caused by perforation. 2 Q. What caused his death? 3 A. I don't know. I told you my suggestion or my 4 assumptions were cardiac pulmonary, cardiac 5 arrhythmia, possible seizure. It's not 6 intra-abdominal event. 7 Q. You are certain about that? 8 A. In my opinion, yes. 9 Q. At the time of your phone call on the evening 10 of 14th, did you ask him if he had taken any 11 medications? 12 A. I don't recall this. 13 Q. Did you ask him if he had taken any aspirin? 14 A. I didn't. 15 Q. At any time after the 14th, did you have any 16 conversation or attempt to have any conversation with 17 any family members of Mr. Thompson? 18 A. Yes, I did. 19 Q. Tell me about that. 20 A. I called his home after he expired and I 21 spoke to his -- I think it was his daughter probably. 22 That's how she identified herself. I asked her to -- 23 I told her who I was and I apologized and I said I 24 would like to talk to her mother, and she said that 25 the mother is sleeping. And that was one time. 0099 1 I called one more time and she said that the 2 mother didn't want to talk to me. 3 Q. For what reason did you make these two phone 4 calls? 5 A. To apologize. I felt sympathetic. 6 Q. At the time that you spoke to Mr. Thompson on 7 the evening of the 14th, did you suspect a 8 perforation? 9 A. No, I didn't. 10 Q. Instead of recommending the Fleet enema, why 11 didn't you just recommend Mr. Thompson report to the 12 emergency room? 13 A. Actually, I did. What I told him, I asked 14 him all the symptoms, I asked him if he felt bad, and 15 he denied any pain, fever, chills, except for 16 bloating or gas that you cannot expel. I told him to 17 take the enema and if he does not feel better, either 18 call me or report to emergency room or come to 19 emergency room. 20 Q. I thought you told me earlier that it was 21 better to be safe than sorry and if a patient 22 reported to you bloating and discomfort you would 23 refer to patient to the emergency room. 24 A. No. I didn't say it this way. 25 Q. Let me finish my question. It's very 0100 1 difficult for her to take us both at the same time. 2 Did you understand my question in spite of 3 talking over me? 4 A. Yeah. Can you say again? 5 Q. I thought you told me at the outset of this 6 deposition that it's better to be safe than sorry and 7 if a patient has bloating and discomfort you would 8 refer that patient to the emergency room. 9 A. I said the whole combination of symptoms, not 10 only bloating and discomfort. Bloating, discomfort, 11 pain, fever, chills. Discomfort, yes. Only 12 bloating, no. It's a usual, common situation after 13 colonoscopy when people feel bloating, bloated. 14 Q. If a patient reported to you on the evening 15 of a colonoscopy that he had bloating and discomfort, 16 you would refer the patient to the emergency room, 17 correct? 18 MR. HUPP: Objection. 19 Asked and answered. 20 A. I think I answered the question. I don't 21 know which other way I can answer it. 22 Q. Yes or no? 23 MR. HUPP: Objection. 24 A. I will stay with my lawyer. 25 Q. He didn't instruct you not to answer. 0101 1 MR. HUPP: No, I didn't 2 instruct him not to answer. 3 Make sure you understand the 4 question before answering it. That's 5 all. 6 A. I think you took a part of my statement and 7 presented it in a way now it's a mild bloating or 8 mild discomfort, do I send anybody who says, I am 9 fine but I have a little bit of discomfort and 10 bloating, no. This was exactly the conversation with 11 Mr. Thompson. 12 Q. Have you had patients in the past who have 13 been instructed by you to report to the emergency 14 room and have refused to do so? 15 A. Oh, yes. 16 Q. And have you had patients in the past whom 17 you suspected to have a perforation and instructed 18 them to go to the emergency room and they didn't go? 19 A. Oh, yes. 20 Q. Did any of those patients die? 21 A. No. 22 MS. McCARTHY: I am going to 23 take a break. Go off the record for a 24 minute. 25 (Thereupon, there was a brief recess.) 0102 1 (Thereupon, Plaintiff's Exhibit 7 to 2 the deposition of Mark Melamud, M.D. 3 was marked for identification.) 4 BY MS. McCARTHY: 5 Q. Doctor, I am going to hand you what has been 6 marked as Exhibit No. 7. Would you tell me if it's a 7 clean copy of your office chart? 8 A. Yes. 9 Q. Doctor, is there anything else about any 10 conversations you had with Mr. Thompson or his family 11 that we have not discussed? 12 A. No. 13 Q. Is there anything else about the procedure, 14 the colonoscopy procedure, that was done on the 14th 15 that you can recall that we have not discussed? 16 A. No. 17 MS. McCARTHY: I don't have 18 any more questions for you. Thank 19 you. 20 MS. SEACRIST: No questions. 21 MR. HUPP: I am going to 22 ask that we get 30 days on the 23 signature to let him read this. 24 MS. McCARTHY: Sure. 25 /// 0103 1 - - - 2 (DEPOSITION CONCLUDED.) 3 - - - 4 5 6 7 8 9 10 11 12 13 14 15 16 MARK MELAMUD, M.D. DATE 17 18 19 20 21 22 23 24 25 0104 1 STATE OF OHIO, ) ) SS: 2 COUNTY OF CUYAHOGA. ) 3 CERTIFICATE 4 5 I, Janis E. Ice, a Registered Professional Reporter and Notary Public within and for the State 6 of Ohio, duly commissioned and qualified, do hereby certify that the within-named witness, MARK MELAMUD, 7 M.D., was by me first duly sworn to tell the truth, the whole truth and nothing but the truth in the 8 cause aforesaid; that the testimony then given by him was reduced to stenotypy, and afterwards transcribed 9 by me through the process of computer-aided transcription, and that the foregoing is a true and 10 correct transcript of the testimony so given by him as aforesaid. 11 I do further certify that this deposition was 12 taken at the time and place in the foregoing caption specified. 13 I am not, nor is the court reporting firm with 14 which I am affiliated, under a contract as defined in Civil Rule 28(D). 15 I do further certify that I am not a relative, 16 employee or attorney of either party, or otherwise interested in the events of this action. 17 IN WITNESS WHEREOF, I have hereunto set my hand 18 and affixed my seal of office at Cleveland, Ohio, this 6th day of April, 2006. 19 20 21 Janis E. Ice, Registered Professional 22 Reporter and Notary Public in and for the State of Ohio. 23 My commission expires 08-30-07. 24 25