0001 1 IN THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO 2 - - - - - 3 C. JEAN THOMPSON, etc., 4 Plaintiff, 5 vs Case No. CV-07-622712 Judge Joan Synenberg 6 MARK MELAMUD, M.D., et al., 7 Defendants. 8 9 - - - - - 10 DEPOSITION OF MARK MELAMUD, M.D. 11 WEDNESDAY, OCTOBER 23, 2007 12 VOLUME II 13 - - - - - 14 Deposition of MARK MELAMUD, M.D., a 15 Defendant herein, called by counsel on behalf of 16 the Plaintiff for examination under the statute, 17 taken before me, Vivian L. Gordon, a Registered 18 Diplomate Reporter and Notary Public in and for 19 the State of Ohio, pursuant to agreement of 20 counsel, at the offices of Bonezzi, Switzer, 21 Murphy, Polito & Hupp, 1300 East Ninth Street, 22 Suite 1950, Cleveland, Ohio, commencing at 2:00 23 o'clock p.m. on the day and date above set 24 forth. 0002 1 APPEARANCES: 2 On behalf of the Plaintiff 3 Becker & Mishkind 4 HOWARD D. MISHKIND, ESQ. 5 Skylight Office Tower Suite 660 6 1660 W. 2nd Street 7 Cleveland, Ohio 44113 8 216-241-2600 9 10 11 12 On behalf of the Defendant 13 Bonezzi, Switzer, Murphy, Polito & Hupp 14 STEVEN J. HUPP, ESQ. 15 Suite 1950 16 1300 East 9th Street 17 Cleveland, Ohio 44114 18 216-875-2767 19 20 - - - - 21 22 23 24 0003 1 MARK MELAMUD, M.D., a witness herein, 2 called for examination, as provided by the Ohio 3 Rules of Civil Procedure, being by me first duly 4 sworn, as hereinafter certified, was deposed and 5 said as follows: 6 EXAMINATION OF MARK MELAMUD, M.D. 7 BY MR. MISHKIND: 8 Q. Would you please state your name for 9 the record. 10 A. My last name is Melamud, 11 M-E-L-A-M-U-D. My first name is Mark with a K. 12 No middle name. 13 Q. Dr. Melamud, my name is Howard 14 Mishkind and you and I have never met before, 15 have we? 16 A. No. 17 Q. I'm here to take your deposition in 18 connection with a lawsuit that has been filed on 19 behalf of the Thompson family. 20 I know that your deposition was 21 previously taken, so I want to first indicate to 22 you that my intent is not to repeat questions 23 that were previously asked of you. 24 My intent is to fill in areas that 0004 1 were unclear from the deposition or areas that 2 were not covered previously. I will do 3 everything possible during the course of this 4 deposition to confine my questions within that 5 category. Okay? 6 A. Yes. 7 Q. Since you and I have not met before, 8 I want to give you just a couple precautions, 9 just so at the end of the deposition there is no 10 question as to what has transpired. 11 When I ask you questions, please 12 wait until I finished asking you the complete 13 the question before you start answering and then 14 answer verbally so that Vivian doesn't have to 15 interpret a nodding of the head as to whether 16 it's a yes or no. Is that fair? 17 A. Fair. 18 Q. If you are answering a question, I'm 19 going to remain silent until you are done. I 20 pride myself on not interrupting a witness. 21 Okay? 22 A. That's fair. 23 Q. Also, make sure that you wait until 24 I'm done with my question because you might give 0005 1 me a yes to a question on an answer that you 2 intend to give a no. So make sure you hear the 3 entire question. Plus it makes Vivian's job 4 that much easier if we are not talking over each 5 other. Is that fair, as well? 6 A. Absolutely. 7 Q. If you don't understand one of my 8 questions -- although Mr. Hupp will tell you 9 every one of the questions that I ask is always 10 completely clear and understandable -- but in 11 the event that I don't ask you a question that 12 is clear, just tell me, Mr. Mishkind, I don't 13 understand what you are asking and I'll try 14 again. If not, I'll just have Vivian read the 15 question back to you. Okay? 16 A. All right. 17 Q. You understand that the purpose of 18 asking you these questions is to learn as much 19 as I possibly can about your involvement in 20 doing the colonoscopy and the polypectomy on 21 Mr. Thompson as it relates to his ultimate 22 complication and death. 23 And in that regard, I'm going to be 24 relying upon the answers that you give during 0006 1 the course of this deposition when this case 2 goes to trial. 3 You understand that, don't you? 4 A. I understand what you said, but I 5 don't agree with it. You make it sound as a 6 consequence of colonoscopy and polypectomy is 7 death. I don't agree. 8 Q. Okay. Well, I understand that you 9 may have certain opinions as it relates to 10 Mr. Thompson's death and the relationship, if 11 any, between the colonoscopy and the polypectomy 12 done on the 14th and his ultimate demise. But 13 you understand I'm going to be asking you 14 questions about that procedure and then the 15 events that led up to his death and I'm going to 16 rely upon your answers when this case goes to 17 trial. You understand that? 18 A. Sure. 19 Q. Great. Your deposition was taken by 20 Ellen McCarthy back in March of 2006, March 21 27th, 2006. Have you had a chance to review the 22 deposition transcript prior to today? 23 A. I looked over it, yeah. 24 Q. Do you stand by the answers that you 0007 1 gave in the deposition? In other words, when 2 you read the deposition, was there anything that 3 you said that as you were reading it you felt 4 that your answer was incomplete or inaccurate? 5 A. No. 6 Q. Have you reviewed any additional 7 information concerning this case, Mr. Thompson's 8 treatment or any of the testimony or records 9 that have been produced during the course of 10 this case since your deposition was taken? 11 A. I didn't review any records or 12 additional records. 13 Q. At the time that your deposition was 14 taken, Mrs. Thompson's deposition I don't 15 believe had been taken. Have you at any time 16 since your deposition was taken, have you read 17 her deposition? 18 A. I didn't read her deposition. I 19 briefly talked about it with my attorney. 20 Q. Fair enough. And I'm obviously not 21 going to ask you what you talked about with your 22 attorney for two reasons: One, it would be 23 inappropriate and Mr. Hupp wouldn't let me. 24 MR. HUPP: Right. 0008 1 Q. Other than conversations that you 2 had with Mr. Hupp about Mrs. Thompson's 3 deposition, have you reviewed anything else to 4 prepare yourself for today's deposition other 5 than reading over your deposition and perhaps 6 reviewing your office notes concerning the 7 colonoscopy and the events that led up to 8 Mr. Thompson's death? 9 A. No, I didn't. 10 Q. Now, since you have not reviewed 11 Mrs. Thompson's deposition, I want to ask you a 12 few questions and I will ask you to assume that 13 Mrs. Thompson testified to these facts and I 14 want to ask you questions about that, okay? 15 MR. HUPP: He is familiar with the 16 substance of the deposition. I did review the 17 answers, especially the telephone call and all 18 that information with him. So he is well versed 19 in that. 20 MR. MISHKIND: I'm not going to 21 assume anything because I don't know how well 22 versed he is and I certainly don't want to 23 invade your conversation. 24 Q. But I want you to assume for 0009 1 purposes of this question that Mrs. Thompson 2 contacted your answering service after hours on 3 behalf of her husband and indicated to the 4 answering service that her husband had certain 5 complaints and needed to talk to you. Do you 6 have any reason to dispute the fact that Mrs. 7 Thompson made a telephone call to your office 8 and reached your answering service? 9 A. No. 10 Q. Now, Mrs. Thompson in her deposition 11 testified that she indicated to your answering 12 service that her husband was complaining of 13 sharp pain and bloating. Do you have any way to 14 dispute that that's what she told your answering 15 service? 16 A. My answering service are many 17 physicians. I've instructed them not to go into 18 details, not to ask the patient, the callers, 19 what is wrong with them. Their role is to page 20 me or to provide me with the name of the caller 21 and to page me. They never indicate on my 22 numerical page why the page is done. 23 Q. Now, do you know for a fact whether 24 the answering service in this particular case 0010 1 either asked Mrs. Thompson why Dr. Melamud 2 needed to be contacted or whether Mrs. Thompson 3 on her own said my husband saw Dr. Melamud today 4 and he had certain complaints of pain and 5 bloating? 6 A. I have no way to know it. 7 Q. But what you are telling me is that 8 the answering service, regardless of the 9 information that Mrs. Thompson may have given 10 them, the answering service, all they do is 11 transfer some information to you as to who the 12 patient is and a telephone number to contact 13 them at? 14 A. Exactly. 15 Q. They don't provide you any clinical 16 history at all or any subjective complaints that 17 are registered by the caller? 18 A. They shouldn't ask the caller even. 19 That's not their role. They don't have any 20 medical liability. They are not a part of my 21 office. 22 Q. Sure. So when you get the 23 information, is it just on your pager? 24 A. It's on my pager that says Mrs. or 0011 1 Mr. So-and-so called, the number is this and 2 this. 3 Q. Do you then ever have occasion to 4 contact the answering service to get any 5 clarification on the nature of the call? 6 A. No. Only if the telephone number is 7 not clear to me, or in rare, rare occasions when 8 it's a wrong telephone number for some mistake 9 or whatever. 10 Q. Who was the answering service or 11 answering service company that you used back in 12 2005? 13 MR. HUPP: 2004. 14 A. I think it's Academy -- I cannot 15 tell you. I do not know. 16 Q. Do you use the same answering 17 service? 18 A. I cannot be 100 percent positive. I 19 think it's the same, but it could not be. 20 Q. Are you still in solo practice? 21 A. Yes, I am. 22 Q. If a patient were to call you today, 23 the answering service would page you in the same 24 manner that the answering services paged you 0012 1 back when Mr. Thompson was a patient? In other 2 words, they would page you with a name and a 3 telephone number and that's it; is that correct? 4 A. That's true. 5 Q. And you believe that the answering 6 service company was called Academy? 7 A. I think so. I cannot swear. You 8 know, the business of my office, like paging is 9 not done by me, myself. 10 Q. Who takes care of matters of that 11 nature? 12 A. It's my secretary who does it. 13 Q. Is that the same secretary that you 14 had when Mr. Thompson was a patient of yours? 15 A. No. It's a different secretary. 16 Q. Same routine in terms of payment? 17 A. Yeah. 18 Q. Who is the secretary that was taking 19 care of paying for your answering service back 20 when Mr. Thompson was your patient? 21 A. Last name was Marcus, I think 22 Marcus. 23 Q. First name? 24 A. First name was Z-H-A-N-N-A. I'm 0013 1 sorry, last name M-O-K-R-E-S, I guess. 2 Q. Doctor, in the interrogatory answers 3 that you provided with the assistance of your 4 attorney, where we asked for the log of calls 5 directed to your answering service, the answer 6 was, will supplement if the log of calls is in 7 existence. 8 Can you explain to me what type of 9 recordkeeping is maintained by you on telephone 10 calls that come in through your answering 11 service? 12 A. We don't keep a log. 13 Q. How do you know whether -- how do 14 you know what calls came in through the 15 answering service? 16 A. It's my understanding that the 17 answering service -- and you can clarify it with 18 them -- keeps the log of the calls within 24 19 hours, or days. So I can always call them and 20 find out did so-and-so call me within the last 21 24 hours and that's the usual practice. We 22 don't keep logs. 23 Q. Has that always been the practice 24 that you have had with answering services; that 0014 1 you would get a page but you wouldn't get any 2 type of a log of those calls? 3 A. You are right. 4 Q. How long does your pager keep an 5 internal memory of the calls? 6 A. My pager keeps 20 calls. It's not 7 the time. It's the number of calls. And then 8 it erases the last call. Not the last, the 9 first. 10 Q. After 20, when you go to 21, the 11 first call is erased? 12 A. Erased. 13 Q. Has that pretty much been how your 14 pager has functioned back when Mr. Thompson was 15 a patient and continuing even to today? 16 A. Yes. 17 Q. So in terms of recording a call, for 18 example, if a patient calls in in the evening or 19 after hours, do you normally dictate something 20 to be memorialized or to be put in the patient's 21 chart relating to an off hour telephone call by 22 a patient? 23 A. No. 24 Q. In this particular case, are you 0015 1 able to recall getting the page on Mr. Thompson? 2 A. Yes, I did. 3 Q. Okay. And -- 4 A. I'm sorry, I have to correct you. I 5 didn't know who called me. I think it was 6 Mr. Thompson. 7 Q. You had a telephone number? 8 A. I had a telephone number and the 9 name of Mr. Thompson on my beeper and I answered 10 the call. 11 Q. To the extent that Mrs. Thompson is 12 the one that made the call on behalf of her 13 husband, can we agree you have no way to dispute 14 that? 15 A. No. I have no way to say yes or no. 16 Q. What you do know is you had a 17 telephone number and it was relating to 18 Mr. Thompson and then you returned that 19 telephone call? 20 A. And right away I started talking to 21 him. I never spoke to her. 22 Q. We will get to that in a moment. Do 23 you know how long it was from the time that you 24 received the page until you returned the call? 0016 1 A. I think it was within ten minutes. 2 Q. Can you tell me why you returned the 3 call as quickly as you did? 4 A. I always do. 5 Q. Did you remember at that time -- and 6 obviously it's been a few years, so some of this 7 may be cloudy -- but did you remember at that 8 time that this was a patient that you had done a 9 colonoscopy and a polypectomy on earlier that 10 day at South Pointe? 11 A. Sure. 12 Q. So when you got the call concerning 13 the patient, you had some concern relative to 14 his condition; true? 15 A. True. 16 Q. Now, Mrs. Thompson, I want you to 17 assume, has testified in her deposition that she 18 picked up the phone when you called back and 19 then handed it to her husband as opposed to 20 Mr. Thompson answering the phone. 21 Are you able to say one way or 22 another whether Mrs. Thompson answered the 23 phone, you said this is Dr. Melamud and she 24 handed the phone to her husband, or are you 0017 1 absolutely certain that it was Mr. Thompson that 2 answered the call? 3 A. I don't remember her talking to me. 4 I remember talking to him. 5 Q. Okay. 6 A. I cannot recollect who picked up the 7 phone. 8 Q. Fair enough. Is it fair to say that 9 it may or may not have been Mrs. Thompson that 10 answered the phone, you just don't remember one 11 way or another? 12 A. I don't remember. I don't remember 13 talking to her. 14 Q. Sure, okay. 15 A. That's what I can say. Who picked 16 up the phone -- 17 Q. I understand that. She may have 18 answered the phone, you may have identified 19 yourself, and then the phone was handed to her 20 husband. What you remember is talking to 21 Mr. Thompson. You don't remember any 22 conversation with Mrs. Thompson. You may have 23 had a brief hello, this is Dr. Melamud, and the 24 phone was handed. You just don't remember one 0018 1 way or another; is that a fair statement? 2 A. That's true. 3 Q. Now, Mrs. Thompson testified in her 4 deposition that she was present in the room when 5 you spoke to Mr. Thompson. And her testimony 6 was that her husband reported that he had sharp 7 pain, bloating and weakness. Are you able to 8 recall what symptoms Mr. Thompson conveyed to 9 you on the phone that evening? 10 A. That he had bloating. 11 Q. You don't recall him giving any 12 history of any sharp pain? 13 A. Not at all. 14 Q. And you don't recall him giving any 15 history of weakness? 16 A. Not at all. 17 Q. Mrs. Thompson further testified in 18 her deposition -- I want you to assume this to 19 be a fact -- that her husband had indicated that 20 he was not able to pass gas. Do you have a 21 recollection of him indicating that to you 22 during the telephone conversation? 23 A. Yes. Bloating. That's what he was 24 talking about. 0019 1 Q. And in the course of that 2 conversation, did he indicate that he was just 3 not able to pass gas? 4 A. Exactly. 5 Q. And certainly the inability to pass 6 gas would be consistent with a patient that is 7 experiencing bloating; true? 8 A. That's true. 9 Q. And Mrs. Thompson indicated that 10 after her husband got off the phone with you 11 that he directed her to obtain an enema for him. 12 Would it be reasonable to state that 13 you indicated to Mr. Thompson that with his 14 symptoms of bloating and inability to pass gas 15 that one thing that he could do was to attempt 16 to use an enema to relieve his symptoms? 17 A. That's true. 18 Q. And you believe that that would be 19 reasonable and prudent to do? 20 A. Yes, I do. 21 Q. Before I move on -- and normally in 22 depositions, I will give you sort of a segway in 23 terms of where I'm going with the next question, 24 so you are not guessing where I'm going. 0020 1 Because sometimes I move around from one place 2 to another. But I want to ask you some 3 questions about your CV, which had been 4 previously provided but then Mr. Hupp provided 5 me with a copy that was attached to the 6 interrogatories. 7 A. Sure. 8 MR. MISHKIND: And why don't we mark 9 this as Plaintiff's Exhibit 1. 10 - - - - - 11 (Thereupon, MELAMUD Deposition 12 Exhibit 1 was marked for 13 purposes of identification.) 14 - - - - - 15 Q. Doctor, I'm going to show you what 16 has been marked with today's date on it as 17 Plaintiff's Exhibit Melamud 1. Is that a 18 current and updated curriculum vitae? 19 A. Yeah. 20 Q. Do you have a more current version 21 somewhere in your office or on a computer that 22 would bring us more up to 2007 as opposed to 23 something that was provided back when your 24 original -- 0021 1 A. I do exactly the same. I started in 2 1989 private practice in gastroenterology. I 3 don't practice in the same hospital now because 4 I used to practice at Mt. Sinai until it 5 collapsed. Now I practice in different 6 hospitals. But everything else is the same. 7 Q. The places where you do your 8 endoscopy and other gastroenterology procedures, 9 is that at Richmond Hospital? 10 A. Richmond University Hospital. 11 Q. Do you also do procedures at South 12 Pointe? 13 A. South Pointe Hospital, The Cleveland 14 Clinic System. 15 Q. How do you divide your time in terms 16 of hospital practice between those two 17 hospitals, if that's the extent of the 18 hospitals, Richmond and South Pointe? 19 A. I also do procedures at the Zeeba 20 Clinic, the Zeeba University Clinic that is 21 located on Cedar Road, actually in the same 22 parking lot where my office is. 23 Q. Your office is at 19001 Cedar? 24 A. Cedar Road. 0022 1 Q. At Brainard Place? 2 A. Brainard Place. 3 Q. And Zeeba Clinic shares a parking 4 lot there? 5 A. Same place. 6 Q. You do procedures at Zeeba Clinic, 7 Richmond University Hospital and at South 8 Pointe, which is part of The Cleveland Clinic 9 System? 10 A. Exactly. 11 Q. Between those three facilities, does 12 that pretty much cover where you do your 13 endoscopy or other gastroenterology procedures? 14 A. I don't do any anywhere else, only 15 in these three places. 16 Q. And which do you use more of the 17 three facilities? 18 A. Oh, South Pointe Hospital. 19 Q. The procedure that was done on 20 Mr. Thompson was at South Pointe? 21 A. Exactly. 22 Q. Doctor, are you board certified -- 23 A. In internal medicine. 24 Q. Let me finish. That's one of those 0023 1 that -- 2 A. I'm sorry. 3 Q. I might have been asking you if you 4 are board certified in internal medicine but 5 that wasn't my question. 6 Are you board certified in 7 gastroenterology? 8 A. No, I'm not. 9 Q. There is a board certification by 10 the American Gastroenterological Association? 11 A. Yeah. 12 Q. But you are not board certified? 13 A. No. 14 Q. Have you ever sat for the board 15 certification? 16 A. No, no. 17 Q. I know that you do a lot of 18 gastroenterology procedures from the previous 19 deposition. I know the frequency of doing 20 endoscopies and colonoscopies. But is there a 21 reason that you have never become board 22 certified as a gastroenterologist? 23 A. Yeah. Actually two reasons. The 24 reason number one, I graduated from fellowship 0024 1 at the age of 45 and I had no desire to put 2 additional stress on myself. And number two, I 3 started my practice and practiced at Mt. Sinai 4 Hospital where I did my internship, residency 5 and fellowship and where I was known to a wide 6 circle of practitioners and I didn't feel I 7 needed anything, you know, more. Plus at that 8 time, that was pretty common practice. Some 9 physicians would go and some don't. 10 Q. At any of the hospitals that you 11 have had privileges at, have there been any 12 credentialing issues that you needed to meet in 13 order to perform endoscopies or colonoscopies, 14 other than being board certified? 15 MR. HUPP: Objection. You can 16 answer that. 17 A. No. 18 Q. Are you a member of the American 19 Gastrologic Association? 20 A. Northeastern Ohio. 21 Q. Not the national one? 22 A. Not the national. I used to be, but 23 then I -- it's a matter of -- I don't know what. 24 Q. So that I'm clear, you confine your 0025 1 practice to gastroenterology? 2 A. Only. 3 Q. Do you see patients for general 4 internal medicine issues? 5 A. No. 6 Q. And the only reason that you have 7 not become board certified was a personal 8 preference because of when you started doing 9 this you didn't want the added stress of 10 taking -- 11 A. There was no need for me, let me put 12 it this way. I developed my practice within one 13 year because as a resident and a fellow, I was 14 known in this hospital. People knew you as a 15 referral practice that I had. I never expected 16 to practice in any other hospitals except for 17 Mt. Sinai for the rest of my career, so 18 unexpectedly it happened that one of the best 19 hospitals in town collapsed for financial 20 reasons and luckily I actually continued doing 21 what I am doing. 22 Q. You did a fellowship in 23 gastroenterology at Mt. Sinai? 24 A. Exactly. 0026 1 Q. And you did a residency in internal 2 medicine? 3 A. At Mt. Sinai. 4 Q. Your residency in internal medicine 5 was obviously prior to your fellowship in 6 gastroenterology? 7 A. Exactly. 8 Q. And while you were pursuing your 9 fellowship -- and correct me if I am wrong -- 10 but while you were pursuing your fellowship in 11 gastroenterology, you sat for and became board 12 certified in internal medicine; correct? 13 A. That's true. 14 Q. Did you intend to practice in 15 internal medicine or was your intent always to 16 practice in the area of gastroenterology? 17 A. That was a requirement of the 18 fellowship; after the first year to get a board 19 certification in internal medicine. I had to do 20 it. I had no choice. 21 Q. Did you ever apply for the right to 22 become board certified in gastroenterology? 23 A. I sent my application in in 1999 24 after I finished my fellowship, but a couple 0027 1 weeks, if I remember -- October 24th, actually, 2 today is the 18th anniversary of my father's 3 death and I never went to the exam. He was sick 4 for the last six months before he died. He was 5 in the hospital already ten times. I just 6 didn't -- I think the board exam was something 7 October 15th or 16th at that time and he was 8 already very bad. 9 Q. You had mentioned 1999. I think you 10 meant 89. 11 A. '89. I apologize. 12 Q. I just want the record to be clear. 13 So in 1989 you had submitted your application to 14 take the board certification, but the reason you 15 didn't sit for the boards was because your 16 father was ill and that prevented you from 17 taking the boards? 18 A. It was more important for me to 19 spend the time. 20 Q. I'm not suggesting it wasn't. I 21 just want to clarify that. 22 A. Yeah. 23 Q. And after your dad passed, you opted 24 not to resubmit your application to take the 0028 1 exam? 2 A. Right. 3 Q. You just practiced -- 4 A. If I remember correctly, the board 5 certification exam is taken every two years and 6 I was two years older for the next exam. I 7 developed a practice very quickly. We are 8 talking about something 18 years ago. I don't 9 recollect exactly the motives why. It just was 10 not necessary for me to do this. 11 Q. Fair enough. Had your dad not been 12 ill and the situation occurred, you in all 13 likelihood would have taken the board 14 certification -- 15 A. Possibly. 16 Q. -- and hopefully passed it and been 17 board certified, but after that situation, am I 18 correct in that you just didn't feel that it was 19 necessary for your practice to become board 20 certified thereafter? Is that a fair statement? 21 A. Yes. 22 Q. Okay. To fill in some gaps on the 23 deposition previously, your CV does not reflect 24 any literature publication. Have you published 0029 1 anything that has been submitted for 2 publication, written anything that has been 3 submitted for publication? Any peer reviewed 4 journals? 5 A. No, I didn't. 6 Q. Have you published anything in any 7 medical journals or textbooks or periodicals in 8 the area of medicine? 9 A. I didn't. 10 Q. Since March of '06 when your 11 deposition was taken by Ellen McCarthy, have you 12 been deposed in any other matter since then? 13 MR. HUPP: Objection. 14 A. No. 15 Q. You mentioned that you are a member 16 of a local -- 17 A. It's called Northeastern Ohio -- 18 MR. HUPP: Please, doctor, you have 19 to let him finish his question and then you give 20 the answer. 21 THE WITNESS: All right. 22 Q. Tell me the name of the local 23 association that you are a member of. 24 A. Northeastern Ohio Endoscopic either 0030 1 Society or Association. It's a very local group 2 that gets together once in six months, I think. 3 Q. Are you a member of any other 4 medical association, professional medical 5 associations other than that association? 6 A. No, I'm not. 7 Q. Are you a member of the American 8 Medical Association? 9 A. Used to be, but not now. 10 Q. Have you ever had your privileges at 11 any hospital suspended or revoked or called into 12 question? 13 MR. HUPP: Objection. Go ahead. 14 A. No. 15 Q. Have you ever applied for privileges 16 at a hospital and been denied? 17 MR. HUPP: Objection. Go ahead. 18 A. No. 19 Q. Have you ever applied for membership 20 in any professional associations and been 21 denied? 22 A. No. As a matter of fact, the 23 American Gastroenterology Association, the AMA 24 sends, you know, every month I receive letters, 0031 1 invitations to join. 2 Q. You just haven't felt a need to 3 join? 4 A. Well, I didn't feel a need to join, 5 number one. With the American Medical 6 Association, a lot of us have hard feelings in 7 the sense of their professional support and I 8 used to be a member and I'm not anymore. 9 Q. Can you explain to me what those 10 hard feelings are? 11 A. Hard feelings were that, you know, 12 that physicians are not allowed professional 13 unions. And the American Medical Association 14 was expected to play a role of the defender of 15 physicians in many instances. And a lot of us 16 felt that they didn't fulfill this, you know, 17 role and the membership in AMA declined during 18 the last ten years profoundly. That's all I can 19 tell you. 20 Q. Have you ever written anything to 21 the AMA or to the Ohio State Medical Association 22 expressing your discontent with the AMA? 23 A. No, I didn't. 24 Q. Doctor, looking back at your 0032 1 deposition transcript, you had indicated when 2 Ellen McCarthy had questioned you -- page 25 -- 3 that during a colonoscopy, one possible 4 indication of a perforation would be if 5 flatulence stops during a colonoscopy. Page 25, 6 line ten. 7 A. No. I didn't -- yeah, I answered 8 correctly. 9 Q. So a flatulence all of a sudden is 10 silent, that would be during the colonoscopy? 11 A. After the colonoscopy. The only 12 correction, after the colonoscopy we expect the 13 patient to pass gas and this is always asked by 14 the nurses and this is one of the indications 15 not to discharge the patient if he doesn't pass 16 gas. 17 Q. All right. But going back to my 18 question, if flatulence stops at the end of a -- 19 A. Procedure. 20 Q. Let me finish again. My questions 21 are so obvious that you know the answer to them. 22 But you have to give me -- 23 A. I apologize. 24 Q. -- you have to give me a chance. 0033 1 A. I apologize. My fault. 2 Q. I'm a fledgling lawyer here and I'm 3 trying to get through with my questions. 4 If flatulence stops after the 5 procedure and while the patient is recovering, 6 that is an indication to you of a possible, not 7 necessarily probable, but a possible 8 perforation; correct? 9 A. That's true. 10 Q. Okay. Is this because of bowel 11 irritation that results in the inability to 12 evacuate bowel gases? 13 A. It's because the air escapes into 14 the hole or perforation. 15 Q. And can bowel irritation result in 16 the inability to evacuate bowel gases? 17 A. That's true too. 18 Q. If this is a sign at the end of a 19 colonoscopy, if the patient is not able to pass 20 gas or flatulence stops, is this also a 21 potential sign of a perforation following 22 discharge from the endoscopy suite during the 23 first 24 hours? 24 A. Not by itself. 0034 1 Q. What would cause an inability to 2 pass gas or to have flatulence during the first, 3 say, ten or 12, eight to 24 hours following a 4 colonoscopy that would not at least raise in 5 your mind an index of concern that there might 6 be a perforation? 7 A. For some reason, bloating or 8 inability to pass gas is the most common 9 complaint after colonoscopy. It's not like I 10 don't pay attention to this complaint. It's 11 something that I do pay attention to. And if 12 this doesn't go away, I will ask the patient to 13 see me right away if it's daytime, or to check 14 into the emergency room if it's after hours. 15 But because it's a frequent 16 complication, and because the explanation for it 17 is decreased peristalsis that often happens 18 after the colonoscopy, and in the absence of 19 other symptoms, I wouldn't panic, I would wait, 20 and recommend the patient to do something, and 21 see what happens and call me back. 22 Q. How often, in your experience, on a 23 colonoscopy that is associated with a 24 polypectomy do you see bloating and inability to 0035 1 pass gas during the first 12 or 24 hours after 2 the patient is discharged? How frequently does 3 that occur? 4 A. I don't have statistics. Is it with 5 colonoscopy or without colonoscopy? 6 I do an average of about 50 7 colonoscopies a week and I have maybe one call a 8 week. That is not that rare. But they always, 9 when we discharge the patient, we always tell 10 them they may have experience of bloating. And 11 if the bloating persists, or if pain or fever or 12 chills is associated, to call us right away and 13 they are given the paper -- or to sign into the 14 emergency room or to call 911. 15 Q. If the patient experiences bloating, 16 bloating is a symptom, is it not? 17 A. Yeah, sure. 18 Q. And is bloating frequently 19 associated with some degree of abdominal 20 distention? 21 A. Could be. 22 Q. Bloating would be a symptom, 23 abdominal distention would be a clinical 24 finding? 0036 1 A. That's correct. 2 Q. And those would be consistent with 3 each other. In other words, a patient that has 4 abdominal distention, it would not be uncommon 5 for that patient to have some degree of 6 bloating; correct? 7 A. Not necessarily. 8 Q. If a patient has bloating post 9 colonoscopy, and the patient calls you off 10 hours, if the patient does not have any other 11 symptoms of pain, what is your normal practice 12 in terms of advising the patient what to do or 13 not to do? 14 A. First of all, I ask the patient 15 questions. Does he complain or he doesn't 16 complain. If he has pain, that's the main 17 question. Fever or chills. 18 Bloating is also a symptom of 19 retaining the air that I put into the colon. 20 During the colonoscopy I put air into the colon. 21 Q. Okay. If the patient complains of 22 bloating and does not complain of pain or fever 23 or chills, is that reason for you to have any 24 index of concern relative to that patient? 0037 1 A. Sure. Any complaints. 2 Q. When a patient registers a complaint 3 of bloating and it's off hours at home, do you 4 have within your differential that there is a 5 possibility of a perforation? 6 A. Without any other symptoms? 7 Q. Yes. 8 A. No. 9 Q. So with bloating -- I'm sorry, you 10 may not be done. 11 A. No, I didn't say anything. 12 Q. You had a facial expression. I 13 don't know whether I cut you off. 14 A. No. 15 Q. If the patient complains of bloating 16 and nothing else, and this is off hours -- and 17 we know that in this case the procedure was done 18 in the morning; correct? 19 A. Uh-huh. 20 Q. That's a yes? 21 A. Yes. 22 Q. And we know that Mr. Thompson went 23 home and the communication that you had with him 24 was sometime in the early evening hours; true? 0038 1 Say 8:00 o'clock? 2 A. About 12 hours, yeah. 3 Q. So within a 10 to 12 hour period of 4 time; is that a fair statement? 5 A. Yes. 6 Q. If, in fact, Mr. Thompson conveyed 7 to you that 10 to 12 hours following his 8 colonoscopy that he was experiencing bloating 9 and didn't communicate any other symptoms to you 10 during that telephone call, would you in your 11 mind be thinking, not necessarily high up on the 12 differential, but would you be considering that 13 the bloating might be associated with a 14 perforation to the colon? 15 A. Well, what is going on in my mind, 16 if the patient calls -- not necessarily 17 Mr. Thompson, anybody else -- 12 hours after, 18 calls about bloating, you always, even if the 19 patient calls that his throat is sore, you 20 always think about could it be perforation, 21 because perforation and bleeding are the two 22 major complications, most frequent 23 complications. You cannot avoid this thought. 24 This thought is there. 0039 1 You talk to the patient. I think I 2 spent -- if you are talking about Mr. Thompson, 3 I think I spent some time talking to him. When 4 I talked to him the first question is pain, the 5 second question is fever, the third question is 6 chills, and how do you feel in general. 7 If he or anybody else would indicate 8 that I'm in pain, I'm in big discomfort, I'm 9 chilly, I'm hot, I feel that I'm febrile, the 10 answer is only one, call 911; come to the 11 emergency room. 12 Q. But in the absence of any one of 13 those symptoms, in the absence of pain, or 14 fever, or chills, if the patient expresses to 15 you based upon your conversation that bloating 16 is the symptom that the patient has, is it your 17 testimony that you wouldn't urge the patient to 18 call 911 or to come to the hospital at that 19 time? 20 A. Right away, no. 21 Q. If the patient has any one of those 22 additional symptoms associated with the 23 bloating; for example, if pain and bloating are 24 described, would it be your responsibility to 0040 1 advise the patient to come to the emergency room 2 or to call 911 -- 3 A. Right away. 4 Q. Right away, okay. It would not be 5 within accepted standard of practice -- you have 6 to let me finish. 7 A. I didn't answer you. 8 Q. It looked like you were about to. I 9 was trying to stop you. 10 A. No. 11 Q. If the patient expressed to you that 12 he had pain and had bloating and you did not 13 advise the patient to either call 911 or to come 14 to the emergency room right away, can we agree 15 that that would not be in compliance with the 16 standard of care? That would not be reasonable 17 and prudent care on your part? 18 MR. HUPP: Objection. Go ahead. 19 A. I agree with you. 20 Q. So bloating and any one of these 21 symptoms -- not all of them, but bloating and 22 pain, what would be required of you would be to 23 say to the patient, let's not err on the side of 24 taking any chances; call 911 or have your wife 0041 1 bring you to the hospital and get checked out; 2 correct? 3 A. Correct. 4 Q. If the patient said I have bloating 5 and chills but no pain, same instructions? 6 A. If the patient would say I have 7 chills, I will tell him to call 911. 8 Q. If the patient -- 9 A. Without even bloating. 10 Q. But if the patient says bloating and 11 chills, call 911? 12 A. Definitely. 13 Q. If the patient says bloating and 14 fever, 911? 15 A. Exactly. 16 Q. If the patient says bloating and 17 pain, 911? 18 A. Exactly. 19 Q. You don't need all of those 20 symptoms. Bloating and one or more of them and 21 you get the patient to the hospital to be 22 evaluated; correct? 23 A. That's true. 24 Q. Would you agree that if the patient 0042 1 complains of pain and bloating that it would be 2 below accepted standards to suggest to the 3 patient that they attempt to use a fleet's enema 4 to treat the bloating? 5 MR. HUPP: Objection. Go ahead. 6 A. I don't see a logic. If the patient 7 presents with pain and bloating, why would a 8 doctor take care of bloating and not pain? A 9 fleet's enema doesn't take care of pain. 10 Logically, if a doctor says, well, 11 take a fleet enema but take also Tylenol or take 12 aspirin or some painkiller, ibuprofen, then it's 13 logical, but out of this two, the main complaint 14 is pain, not bloating. 15 Out of us three here, statistically 16 one should be bloated now, because about 30 17 percent of the population experience irritable 18 bowel syndrome. 19 Q. Following a colonoscopy? 20 A. No, just in general. Okay? So one 21 of us is bloated here. 22 Q. It's probably Mr. Hupp. 23 MR. HUPP: Objection. Move to 24 strike. Stick to what we are talking about, 0043 1 doctor. You are going a little far afield. 2 Q. Just so I'm clear on this point, 3 it's not uncommon in your practice and 4 experience to see a patient that has bloating on 5 off hours after having a procedure done that 6 morning; true? 7 A. Hear from them you mean? 8 Q. Hear from them. In other words, a 9 telephone call. 10 A. Sure. 11 Q. And you believe that bloating in and 12 of itself following a colonoscopy would not be a 13 contraindication for the patient to use a 14 fleet's enema to try to alleviate the gas? 15 A. That's true. 16 Q. You believe that that would be 17 supported by the medical literature? 18 A. Well, common sense and my practice. 19 Q. And the medical literature? 20 A. And the medical literature. 21 Q. And I know you had indicated 22 previously that you recognize Dr. Sevak as a 23 well-respected expert in the area of 24 gastroenterology; correct? 0044 1 A. I know of him and I know his 2 writings. 3 MR. HUPP: One moment. 4 (Recessed.) 5 Q. In your previous deposition, you had 6 acknowledged Dr. Sevak and his textbook, which 7 is Gastroenterology and Endoscopy, as a 8 reasonably reliable textbook. And you still 9 find Dr. Sevak's textbook and his writings to be 10 reasonably reliable as it relates to 11 gastroenterology and endoscopy? 12 A. Well, you are asking my relations to 13 textbooks in general then. Because a textbook 14 is a textbook. In general, it's a good 15 textbook. In particular, questions, I may 16 believe in something else. 17 Q. You previously acknowledged 18 Dr. Sevak and his textbook as one that you own; 19 true? 20 A. I owned. 21 Q. You owned? 22 A. I don't own it anymore. 23 Q. Do you find it to be less reliable 24 in terms of gastroenterology and endoscopy than 0045 1 you did a year and a half ago? 2 A. I didn't read it for a long time. 3 About two, three years ago -- I think three 4 years ago, I gave it to a friend and never got 5 it back. 6 Q. How do you keep up to date on 7 advances in gastroenterology and endoscopy? 8 A. Well, there is no need now to buy 9 textbooks. We have an excellent library at 10 South Pointe. And for many years -- and you can 11 check with them -- I am receiving articles and 12 probably up to, I don't know, in a year about a 13 hundred articles that I subscribe to from the 14 literature. I'm a frequent guest there. I 15 spend hours there looking through books or 16 reading books. 17 Q. What journals in the area of 18 gastroenterology do you frequently read when you 19 are at the library? 20 A. Well, Gastroenterology and Endoscopy 21 is one of them. 22 Q. Is that the name of a journal? 23 A. Yes. 24 Q. Is it called the Journal of 0046 1 Gastroenterology and Endoscopy? 2 A. Right. 3 Q. And do you consider that to be one 4 of the most -- 5 A. Gastrointestinal Endoscopy is what 6 it's called. 7 Q. Do you believe that to be one of the 8 leading journals in your practice? 9 A. In the area of endoscopy. 10 Q. And would that include the area of 11 colonoscopy, as well? 12 A. Right. 13 Q. And you consider that to be a 14 reasonably reliable journal, peer reviewed 15 journal on various aspects of colonoscopies, 16 including associated complications following 17 colonoscopies? 18 A. Yes. 19 Q. Have you reviewed any literature 20 since the deposition that was taken last year 21 that you rely upon or intend to rely upon to 22 support your care of Mr. Thompson at the trial 23 of this case? 24 A. No. I read all the time. 0047 1 Q. I understand that. 2 A. The last article is an article 3 written a few months ago or published a few 4 months ago by Douglas Rex. I don't remember 5 which magazine now, because I receive them as 6 copies from the library. What they do, they 7 send to me the content of the magazines. 8 Q. Table of contents? 9 A. Right. And I choose the articles 10 and they send them to me. So sometimes I don't 11 remember from which magazine it is, because I 12 have just an article. But if you are looking 13 for something about endoscopies, the latest 14 article is written by one of the gurus of 15 clinical endoscopy by the name of Douglas Rex. 16 Q. R-E-X? 17 A. R-E-X from Indiana University. That 18 is called Complications of Polypectomies. 19 Q. Are there any other journal articles 20 that you can cite for me that you reasonably 21 believe provide reliable information that would 22 be relevant to the topic of this case involving 23 colonoscopy and polypectomy and complications 24 associated with a colonoscopy and a polypectomy? 0048 1 A. Discussions about techniques in 2 colonoscopy and complications of different 3 procedures in colonoscopies, all the time in 4 magazines like Endoscopy, like Gastrointestinal 5 Endoscopy, in any of the journals, you will find 6 articles for and against and pro and cons and 7 discussions. 8 The Douglas Rex's latest article 9 will tell you that complications are, with our 10 techniques that we have -- 11 Q. Complications of what? 12 A. Of the polypectomies or bleeding. 13 -- with our techniques that are available to us 14 right now we cannot a hundred percent avoid the 15 complications. 16 And he brings up the statistics of 17 complications that are from one in 100 18 polypectomies, perforation, for example, that is 19 very high in some studies and some studies it's 20 lower. 21 Everybody kind of compares himself 22 or herself to the national reports, national 23 studies. And I know that I stand very, very low 24 in number of complications to compare with my 0049 1 practice and procedures the number that I do. 2 I know that the techniques that I 3 have learned during my fellowship and techniques 4 that I perfected during my practice are 5 resulting in my reports and the number of 6 complications that I have, low numbers of 7 complications that I have. 8 The American Association of 9 Gastroenterology has certain guidelines that I 10 keep up with and instruments that they recommend 11 for different procedures that I keep up with. 12 The same is done and reviewed by the Cleveland 13 Clinic and the system in Cleveland Clinic. They 14 would not allow us to practice something or do 15 something, you know, without instruments, our 16 own instruments, or apply our own techniques 17 that are not approved. 18 Q. This article by Dr. Rex, it, I 19 presume, references other previous studies in 20 his article? 21 A. They are all references in his 22 article, yes. 23 Q. You believe this is one of the more 24 current and up to date articles that talk about 0050 1 the complications of colonoscopy and 2 polypectomy? 3 A. The most current. 4 Q. One that you consider to be 5 reasonably reliable as it relates to the science 6 of this procedure? 7 A. Not only science, science and 8 techniques and his own experience. 9 Q. Okay. In terms of Mr. Thompson's 10 inability to expel gas, he had no physiological 11 reason, such as an obstructive lesion, that 12 would have prevented him from passing 13 flatulence; true? 14 A. He didn't have obstructive lesions, 15 but he had an anal lesion that I describe in my 16 report. 17 Q. We are going to talk about that. 18 But would that be an obstructive lesion that 19 would have impacted his ability to pass gas? 20 A. It's not an obstructive lesion, but 21 it could affect his ability to pass gas. 22 Q. Do you believe in this case that the 23 existence of that anal mass that you -- there 24 were three different areas that you address 0051 1 during the polypectomy. Do you believe that 2 this anal mass was at all contributory to his 3 inability to pass gas and his bloating that he 4 complained to you about that evening? 5 MR. HUPP: Objection. Go ahead. 6 A. I thought so. 7 Q. When you do the polypectomy, there 8 are two different ways to do a polypectomy. 9 One is to use the hot biopsy forceps 10 and the other is to use what? 11 A. Electrocautery snare. And the third 12 way is to used cold biopsy forceps. Three ways. 13 Q. You chose the hot biopsy forceps in 14 this case? 15 A. Yes, I did. 16 Q. Was there a reason you chose the hot 17 biopsy forceps as opposed to the other two 18 techniques? 19 MR. HUPP: Let me object. It's been 20 asked in the other deposition, but since it's 21 the first time you crossed that line, I'll let 22 him answer that. Go ahead. 23 A. It all depends on the size and the 24 proximity of the polyp and the ability to 0052 1 approach the polyp. 2 When I say the size, there are 3 recommendations that would recommend to remove a 4 miniature polyp measuring two to three 5 millimeters by cold biopsy, measuring 6 approximately five millimeters by hot biopsy 7 technique and something over one centimeter 8 using the electrocautery snare. 9 It also depends on the shape of the 10 polyp. If it's a sessile polyp -- again, it 11 depends on the size. If it's a pedunculated 12 polyp or a polyp that has a peduncle, then we 13 always use electrocautery snare. 14 It also depends on the proximity or 15 the location of the polyp. For example, if the 16 polyp is located in the proximal colon, cecum, 17 then we try not to use hot biopsy forceps. If 18 the polyp is located closer to the, distally or 19 closer to the exit, we use hot biopsy forceps, 20 small liberal. That's, I think, a full answer. 21 Q. Okay. Remember I told you I 22 wouldn't cut you off, I would let you answer. 23 A. You know -- 24 Q. Have I been fair to you so far in 0053 1 letting you answer? 2 A. So far, yes. 3 Q. You'll let me know if I'm not being 4 fair to you? 5 A. Okay. My lawyer will help. 6 Q. If you feel I'm being unfair to you, 7 let me know. I have a thick skin and I'm happy 8 to be told that. Okay? You are shaking your 9 head. 10 A. I agree with you. 11 Q. Doctor, the AGA guidelines, those 12 set forth some of the guidelines that you follow 13 in terms of choosing the methodology or the tool 14 for removing the polyps? 15 A. They are recommendations. 16 Q. Okay. And you follow those in the 17 course of your practice; correct? 18 A. Sure. 19 Q. You believe that those 20 recommendations establish what a reasonable and 21 prudent gastroenterologist would do under like 22 or similar circumstances; true? 23 MR. HUPP: Objection. I think he 24 already answered that question. 0054 1 He is saying does that equal the 2 standard of care, that's what he is asking. 3 MR. MISHKIND: Don't rephrase my 4 question. 5 Q. Do you believe that the AGA 6 guidelines set forth what a reasonable and 7 prudent gastroenterologist should do under like 8 or similar circumstances? 9 MR. HUPP: Objection. 10 MR. MISHKIND: You can answer the 11 question. The objection is only for the record. 12 MR. HUPP: It is for the record 13 because that's what we are talking about. 14 Whether it represents reasonable and prudent 15 care, not guidelines. 16 Q. Do you understand, doctor? 17 A. I would like to know why my lawyer 18 objected. 19 Q. Don't worry about that. You can 20 talk with him afterwards. The objection is only 21 for the record. 22 Can we agree that the AGA guidelines 23 establish what a reasonable and prudent 24 gastroenterologist would do in approaching a 0055 1 particular polyp? 2 A. Yeah. 3 MR. HUPP: Objection. Asked and 4 answered. 5 Q. Thank you. 6 When you do the hot biopsy forceps, 7 you are creating an electrocautery or a 8 coagulation to the area where the polyp is 9 removed; correct? 10 A. That's correct. 11 Q. And is there pain from the 12 coagulation injury or the electrocautery injury? 13 A. I would like you to clarify your 14 question. 15 Q. Sure, I'll be happy to. 16 A. Pain, when? 17 Q. Is it common for a patient to 18 experience post polypectomy pain during the 19 first 12 to 24 hours after having an 20 electrocautery injury secondary to the polyps 21 being removed? 22 MR. HUPP: Objection to the form. 23 Go ahead. 24 A. Uncommon. 0056 1 Q. It's uncommon? 2 A. Uh-huh. 3 Q. If a patient experiences -- tell me 4 why it's uncommon to experience pain secondary 5 to the electrocautery injury. 6 A. Well, it's uncommon for a patient, 7 electrocautery or any injury, the colon has only 8 Barrett receptors, receptors that is found to 9 stretch. If you stretch the colon with a lot of 10 gas, for example, or mechanical stretching, 11 patients feel discomfort or pain. 12 Cutting the colon or taking a 13 biopsy, and we often take -- we often, we used 14 to take, we don't do it now -- a biopsy during 15 flexible sigmoidoscopy. I don't do flexible 16 sigmoidoscopies. I haven't done that for many 17 years. 18 And during the flexible 19 sigmoidoscopy, is we take a biopsy, meaning take 20 a piece of tissue and rip it off, the patient 21 doesn't feel it. If you can imagine the same 22 done to the skin, it's very painful. 23 So the patient doesn't feel. But if 24 we put some air in the colon during the flexible 0057 1 sigmoidoscopy, the patient is in pain or in 2 discomfort I would call it. So to answer your 3 question, it's uncommon to feel pain after the 4 polypectomy and it's an alarming symptom. 5 Q. If a patient does develop pain from 6 an electrocautery injury, would you be 7 considering the possibility that there is a 8 perforation? 9 A. Yeah. And I may elaborate if it 10 will educate you in a sense. 11 Q. You go right ahead. 12 A. Perforation can be immediately 13 during -- during the procedure. Perforation can 14 be early after the procedure; meaning hours. 15 And perforation can happen days after the 16 polypectomy, so-called late perforation. 17 Q. So if a patient complains of pain 18 after having an electrocautery injury, as well 19 as bloating, one has to have -- and it's late, 20 12 hours late -- one has to have within the 21 differential the possibility that the patient 22 has a late onset perforation? 23 MR. HUPP: Objection. 24 Q. True? 0058 1 A. Yeah. 2 Q. Okay. 3 A. Suspicion. 4 Q. Suspicion. And that suspicion then 5 would mandate that the patient be immediately 6 evaluated in the hospital; correct? 7 A. By a physician. 8 Q. Right. Would it be unacceptable to 9 suggest to a patient that has a suspicion, where 10 the physician has a suspicion that there is an 11 electrocautery injury that may have caused a 12 perforation and the patient is demonstrating 13 pain and bloating, would it be unacceptable for 14 the physician to recommend that the patient try 15 a fleet's enema as the first line of remedy? 16 MR. HUPP: Objection to the 17 hypothetical. Go ahead. 18 A. Remedy of what? 19 Q. Well, can you think of any 20 circumstance where a reasonable and prudent -- 21 you consider yourself to be a reasonable, 22 prudent doctor, don't you? 23 A. What I meant is, enema, fleet's 24 enema, for example, can help the peristalsis and 0059 1 remove air or pass the air, but pain is a 2 different thing. 3 Q. Would it be -- 4 A. A fleet's enema wouldn't be 5 recommended by me or any other, I think, 6 gastroenterologist for pain. 7 Q. It would be contraindicated for pain 8 in a patient who has that along with bloating; 9 correct? 10 MR. HUPP: Objection. 11 A. I didn't understand your question 12 entirely. 13 Q. Would you agree -- 14 A. If a perforation is suspected, 15 neither I nor anybody else would recommend a 16 fleet enema. 17 Q. It would not be acceptable for you 18 or for anyone else to recommend a fleet's enema; 19 true? 20 A. It doesn't make sense even to. 21 Q. And whether it makes sense or not, 22 it wouldn't be reasonable care for a patient; 23 true? 24 MR. HUPP: Objection. Asked and 0060 1 answered. Go ahead. 2 A. That's true. 3 Q. What is a transmural injury? 4 A. Mural means wall. Transmural means 5 through the wall. 6 Q. If there is a transmural injury and 7 a patient complains of pain, would you agree 8 that that patient needs to be observed for 9 progression of any potential perforation? 10 MR. HUPP: Objection. 11 A. You link together something that I 12 don't understand what you mean. 13 Q. Transmural, is that through and 14 through? 15 A. That's through and through. 16 Q. How does one -- 17 A. If I suspect during the procedure or 18 after the procedure that I caused transmural 19 injury, that is a hole, for example, I wouldn't 20 let the patient go home after the procedure. 21 Q. Okay. Are there circumstances where 22 because of the electrocautery injury that there 23 is injury to the mucosa or to the lining, but 24 there isn't evidence at the time of discharge of 0061 1 a transmural injury? 2 A. I think I gave you the lecture about 3 it. 4 Q. Acute, late? 5 A. Right. 6 Q. So a transmural injury can be a 7 manifestation of an advancement from the 8 electrocautery injury to a through and through 9 perforation? 10 A. Later on. 11 Q. Okay. Now, I know in your previous 12 deposition you had identified three different 13 areas; that you had removed two polyps. I'll 14 show you the Exhibit 3 from your previous 15 deposition. 16 A. Uh-huh. 17 MR. HUPP: Wait a minute. Listen to 18 the question. 19 Q. And you had identified, I think, on 20 Exhibit 3 back in March of '06 the area of the 21 descending colon. Also, the area in the rectum 22 where there was the mass. 23 A. Uh-huh. 24 Q. And there is also another polyp that 0062 1 you had removed by the biopsy. And the three 2 pictures, the colored pictures show -- the top 3 one shows the polyp, the bottom photo, the 4 bottom left shows the mass; correct? 5 A. Yeah. Actually there are two 6 polyps. This one, this one, and this is a small 7 mass, yes. 8 Q. And the one in the lower row of this 9 picture is the one that is the mass which is 10 consistent with the number three that you have 11 on the sheet? 12 A. Yes. 13 Q. Now, in looking at the pathology 14 report -- and I'll go ahead and mark this 15 because I'm not sure that this was marked. 16 MR. HUPP: I don't think this was 17 marked. 18 - - - - - 19 (Thereupon, MELAMUD Deposition 20 Exhibit 2 was marked for 21 purposes of identification.) 22 - - - - - 23 MR. MISHKIND: This is Exhibit 2, 24 which is actually a two-page exhibit. Just to 0063 1 confirm. 2 Is Exhibit 2 a copy of the pathology 3 report from your polypectomy? 4 A. Uh-huh. 5 Q. That's a yes? 6 A. Yes, it is. 7 Q. Okay. Can you tell me in terms of 8 the descending colon, the pathology report, that 9 shows a benign colonic mucosa with congestion; 10 correct? 11 A. That's what it says. 12 Q. Does the pathology report indicate 13 any evidence that a polyp was removed in sample 14 A? 15 A. Not in this report. 16 Q. Okay. You testified, however, that 17 you removed two polyps and a mass; correct? 18 A. Part of the mass. 19 Q. Right. And that would be C, the 20 anal polyp? 21 A. The anal mass, yeah. 22 Q. But can we agree that the pathology, 23 what you do is you take what you remove and you 24 submit it to the pathologist and then the 0064 1 pathologist reports what it is that you 2 submitted; correct? 3 A. Right. 4 Q. And what I'm trying to understand is 5 on the descending colon, there is no evidence 6 from the pathology that what you removed in 7 sample A, which was designated as a colon polyp, 8 was in fact a polyp; correct? 9 MR. HUPP: Objection. Go ahead. 10 A. Correct. 11 Q. It was benign colonic mucosa with 12 congestion. It was not in fact a polyp; 13 correct? 14 MR. HUPP: Objection. Go ahead. 15 A. That's what the path report says. 16 Q. Why remove colonic mucosa with 17 congestion if it's not in fact a polyp? 18 MR. HUPP: Objection. 19 A. Well -- 20 MR. HUPP: You can answer. 21 A. Again, we are talking about what I 22 see, what I picture -- that's why we do the 23 pictures -- and what the pathologist sees. 24 What happened is, I don't know if 0065 1 it's a polyp exactly or a protuberance of the 2 mucosa. It looks to me like a polyp. That's 3 why I removed it. The piece I removed, and it 4 says here, was two millimeters or .2 5 centimeters. And when I saw it and I made the 6 picture of it, it looked like a polyp. 7 Q. Is there a greater risk of a 8 transmural perforation by removing benign 9 colonic mucosa as opposed to removing a 10 hyperplastic polyp? 11 MR. HUPP: Objection. 12 A. No. 13 Q. Go ahead. 14 A. No. I just answered. 15 Q. Under normal circumstances, would 16 you in doing a polypectomy remove benign colonic 17 mucosa from the descending colon? 18 A. When I look through the scope, I 19 don't see is it benign or not benign. The 20 pathologist has the privilege to look under a 21 microscope and tell me what it is. 22 If your question refers to how often 23 we remove the miniature polyp, let me say -- 24 because this polyp I refer to is five 0066 1 millimeters. How often it happens that we 2 remove, we think it's a polyp, and definitely 3 some protuberance, maybe a little bit of 4 inflammation or congestion, yes, it happens. 5 Q. How often? 6 A. I don't know statistics how often, 7 but it's not unusual findings and I find it very 8 often in peer reviews when I do a review of 9 somebody's charts and probably somebody finds it 10 in reviewing my charts. 11 Q. Doctor, when you remove the polyp, 12 the intent is to remove a hyperplastic polyp as 13 opposed to a benign piece of colonic mucosa; 14 true? 15 MR. HUPP: Objection. 16 A. Not true. 17 Q. Do you ever go in and do a 18 polypectomy with the intent of removing benign 19 colonic mucosa? 20 MR. HUPP: Objection to form. 21 A. Never. 22 Q. Your intent is to remove that which 23 you believe to be a polyp? 24 A. A polyp, but not hyperplasty. 0067 1 Q. So your intention is to remove -- 2 A. You are going very deep in the area. 3 Not hyperplastic polyp. 4 Q. Just so you and I are on the same 5 page, your intent is to remove a polyp? 6 A. A polyp. 7 Q. As opposed to benign colonic mucosa; 8 true? 9 A. Absolutely. 10 Q. There is no need to remove benign 11 colonic mucosa; true? 12 A. You are right. 13 MR. HUPP: Objection. 14 Q. When you do the electrocautery 15 procedure to remove what you believe to be a 16 polyp, there is a coagulation that occurs at the 17 point where the polyp is removed; correct? 18 A. Exactly. 19 Q. The device that you use helps close 20 off or wall off the area where the polyp is 21 removed? 22 A. No. 23 Q. What happens with the 24 electrocauterization that precipitates a 0068 1 coagulation? 2 A. The cautery I use only for one 3 reason, is hemostasis. 4 Q. And you are attempting to have 5 coagulation to cause hemostasis? 6 A. Exactly. 7 Q. How do you determine whether or not 8 you have obtained adequate coagulation? 9 A. As soon as I see a white ring. We 10 call it Mt. Fuji. 11 Q. Mount what? 12 A. Mt. Fuji. The Japanese mountain -- 13 Q. Got it. 14 A. -- effect. First of all, you take 15 only the tip of the polyp. You don't take the 16 whole polyp. You assume that there will be a 17 coagulation effect. 18 I started 20 years ago, so I did a 19 lot of them. And I take only the tip of the 20 polyp. And you can see here the polyp was I 21 described five millimeters and I took only two 22 millimeters out. 23 So I take the tip of the polyp. I 24 pull the polyp and with the tip of the polyp off 0069 1 the wall and I apply cautery. It's a very short 2 impulse of cautery. As soon as I see white 3 coagulation around, white rim, I stop 4 coagulating and I take it. 5 Q. And that in essence enhances the 6 healing process or the hemostasis that you need 7 to avoid a perforation; true? 8 A. No. 9 Q. Explain to me how I'm wrong. 10 A. Everything you said is wrong. 11 Q. Every once in a while that happens. 12 A. No. You are wrong professionally in 13 the medical field. 14 I take it out. I apply 15 coagulation not to enhance the healing. I apply 16 coagulation -- it's not an ulcer there that I 17 have to coagulate to enhance the healing. I 18 apply coagulation to stop the possible bleeding; 19 to prevent the possible bleeding, I'm sorry, to 20 achieve the hemostasis, as we call it. 21 The coagulation we apply is very 22 light coagulation. With a polyp of this size, 23 five millimeters, I don't need too much 24 coagulation. I could have done it probably with 0070 1 cold biopsy forceps if I wouldn't worry about 2 bleeding. 3 Q. I know you have seen the pictures 4 that were previously marked from the autopsy 5 which were Plaintiff's Exhibits 5 and 6. And 6 there was some discussion at the time of your 7 previous deposition, but I want to try to get a 8 clarification as to whether you can by looking 9 at this piece of tissue in Exhibit 5, which is 10 represented to be from the autopsy of 11 Mr. Thompson, whether you can explain what 12 appears to be two areas where there is at least 13 some type of an injury to the, if this is an 14 area of the colon, an injury to the lining of 15 the colon. 16 If there was a cauterization to the 17 area where the polyp was removed, would you 18 expect that what appears to be -- and I'm using 19 inexact terms -- but what appears to be a hole, 20 would you expect that those areas would have had 21 this whiteness, this mountain of -- what was the 22 term you used before? 23 A. Fuji. 24 Q. Fuji. Would you expect the area 0071 1 would be walled off with this white mountain of 2 Fuji? 3 MR. HUPP: Let me object to the 4 question in its entirety, but I also want to 5 object to the use of copies of color photographs 6 for the use of him trying to testify as to what 7 something looks like on here. That's a couple 8 generations removed from the original. But if 9 you can answer it, go ahead. 10 A. First of all, I don't even know if 11 it's a part of the colon. I cannot, you know, 12 state that this is a part of the colon. It 13 looks like a part of an intestine; large or 14 small, I don't know. 15 The second thing is, whatever you 16 call the injury, I think it's a little pool of 17 blood. It's not an injury, this one, the lower 18 part. 19 Q. Okay. Now, you are looking at, is 20 that Exhibit 5 that you are looking at? 21 A. Yeah. 22 Q. And there are two areas that have 23 some demarcation; one toward the superior aspect 24 and one toward the inferior aspect of this piece 0072 1 of tissue; correct? 2 A. The one in my judgment, the one you 3 showed, the inferior, whatever lesion is not a 4 lesion, it's a little pool of blood, I think, or 5 bloody liquid. 6 Q. Okay. Now, can you tell me by 7 looking at that whether or not that area that 8 you have just referred to as a little pool of 9 blood, whether or not that was caused by 10 anything that you did during your polypectomy? 11 A. No, I don't think so. The tissue 12 was cut and I see blood coming from the margins 13 of the cut. 14 Q. The area where you referred to as 15 the inferior aspect of that photograph that 16 looks to be a pool of blood, you don't believe 17 that that was caused by your polypectomy; is 18 that an accurate statement? 19 A. That's true. 20 Q. Okay. Now, in looking at Exhibit 6, 21 which appears to be a different tissue 22 specimen -- and again, recognizing the same 23 objection that your attorney has in terms of 24 that being a copy of a colored photograph -- are 0073 1 you able to identify an area where you can 2 reasonably say that you did a polypectomy or 3 reasonably may have done a polypectomy on that 4 tissue? 5 A. Well, on both pictures? 6 Q. Both 5 and 6. 7 A. Yes, I can see an area of 8 superficial ulceration. I don't see a hole as 9 you call it, a through and through hole. 10 Q. A transmural? 11 A. No hole, no way. Or it's something 12 that already healed. There is no way to say. 13 But what I see, I see superficial ulceration. A 14 little bit of, I don't know if it's coagulation, 15 Fuji or whatever. I don't see erythremia. I 16 don't see too much inflammation. 17 MR. HUPP: You are referring to 5? 18 THE WITNESS: Yeah, I'm looking at 5 19 now. 20 MR. HUPP: Now he is asking you 21 about 6. 22 A. Six, this is a very poor picture, 23 because, first of all, it's not focused well. 24 Secondly, here I see maybe a superficial ulcer, 0074 1 but it's definitely not through the wall or 2 through and through. You don't see the hole 3 here, not even close. This area of maybe 4 coagulation, yes, it's a paler area, and no 5 inflammation I see. 6 Q. Doctor, have you personally seen 7 under a microscope any of the tissue specimens 8 that were collected at the time of 9 Mr. Thompson's autopsy? 10 A. No. 11 Q. So on Exhibit 5, I think you talked 12 about in terms of the superior portion of that 13 tissue what appears to be an area where there is 14 a cautery, where -- 15 A. That could be. But what it showed 16 here, the area of cautery around, that has a 17 little bit of lighter discoloration, doesn't 18 have any necrotic appearance. Necrotic means 19 black or very dark. 20 Q. Okay. I know at the time of your 21 deposition you had not reviewed the actual 22 autopsy report. Have you reviewed the autopsy 23 since your deposition? 24 A. Yeah, I looked through it. 0075 1 Q. And with regard to the findings, do 2 you have any basis to dispute the anatomic 3 diagnosis that describes a perforation of the 4 descending colon? 5 A. In a way, yes. 6 Q. Tell me. 7 A. Let me see what it says here. 8 MR. HUPP: While he is reading and 9 off the record. 10 (Pause.) 11 A. The pathologist describes here -- 12 first of all, he says that the small and large 13 intestines -- and I'm reading from page, I don't 14 know. 15 MR. HUPP: Two. 16 A. Page two. Where it says digestive. 17 Q. Yes, sir. 18 A. And this has small and large 19 intestines are grossly normal except for distal 20 descending colon. There is a .6 centimeter 21 perforation of the colon in the distal 22 descending region near the junction of the 23 sigmoid colon. 24 He didn't define the perforation. 0076 1 What did he mean perforation? Is it a through 2 and through hole? 3 Next he says the margins of the 4 perforation, erythema and greenish yellow 5 exudate. What he shows on here on the picture 6 you really don't see it. If this is what he 7 describes. 8 Q. You are referring to Exhibit 5? 9 A. Exhibit 5, the superior lesion. 10 Q. Okay. 11 A. And then he says the mucosal surface 12 shows an adjacent .6 centimeter, the same 13 size -- 14 Q. Adjacent. 15 A. Adjacent .6 centimeter area of 16 mucosal superficial ulceration. He meant a 17 second ulcer? It's not clear to me. Or he has 18 talked about one ulcer or something from -- 19 where was the perforation? I really couldn't 20 catch it. And I couldn't understand why two 21 ulcers he is referring. I didn't remove two 22 polyps in the same area. 23 Q. At least that was not your intent to 24 remove two polyps? 0077 1 A. I didn't do twice the moves. I know 2 this. 3 Q. We know that you intended to remove 4 two polyps and an anal mass; correct? 5 A. Right. But the second polyp on the 6 distance from this. 7 Q. I understand that. In the 8 microscopic description of the colon, that would 9 be where the pathologist is actually looking 10 under the microscope as opposed to looking at 11 some type of a gross description that would be 12 depicted by Exhibit 5 or 6; true? 13 A. That's true. 14 Q. And the microscopic and the colon 15 refers to perforation with acute mucosa 16 inflammation and necrosis and acute peritonitis; 17 correct? 18 A. Yes. 19 Q. Did I read that correctly? 20 A. Yes, you did. 21 Q. If there is a transmural injury to 22 the colon, would that create the potential that 23 the patient would develop peritonitis? 24 A. Well, when you say peritonitis, you 0078 1 have to clarify and he didn't clarify what he 2 means. There is localized peritonitis with an 3 area of two millimeters and it can be 4 generalized peritonitis. 5 When he said peritonitis, he didn't 6 describe it and to me he obviously omitted what 7 he meant to say properly. Whatever he describes 8 even in the gross description, he doesn't -- 9 peritonitis is inflammation of the mesentery. 10 He doesn't describe the mesentery being 11 inflamed. He doesn't describe the polyps being 12 in the abdominal cavity. He actually doesn't 13 describe peritonitis instead of the area of 14 erythema that he describes. 15 Microscopically was it an area of 16 necrosis? Possible. Because that's what 17 perforation is; area of necrosis. And that's 18 why late perforations occur, because first it's 19 terminal injury that gradually develops into 20 necrosis and collapse of the tissues. 21 Q. Do you take issue with the cause of 22 death as described by the Coroner in the report 23 of autopsy? And I'll read it into the record. 24 It says, anoxic encephalopathy, 0079 1 acute ischemic cerebral infarct, and acute 2 peritonitis due to cardiopulmonary arrest 3 following colonoscopy and polypectomy with 4 perforation of descending colon. 5 Do you have a basis upon which you 6 can say under oath that you agree or disagree 7 with that finding? 8 MR. HUPP: I'm going to object in 9 the sense that he will not be offering proximate 10 cause opinions at trial. I have two other 11 experts to do that. 12 So you don't have to have an 13 opinion, doctor, but you do have to answer the 14 question. 15 MR. MISHKIND: If you do have an 16 opinion, then you need to answer it. 17 MR. HUPP: Right. 18 A. No, I don't believe that acute 19 peritonitis as described by this pathologist 20 could potentially even be a cause of death. I 21 do believe that the patient died from sudden 22 death. And that's not what this, you know, 23 localized peritonitis could cause. 24 Q. So you don't agree with the Coroner 0080 1 as it relates to the cause of death in this 2 case; true? 3 A. As to the peritonitis, no. As to 4 the fact that he continued -- he put together 5 here something that we call in Russia a borsch; 6 everything in the soup and mixed it about. 7 Yeah, there is some rational things, 8 like -- 9 MR. HUPP: He is talking right here. 10 A. -- anoxic encephalopathy. Acute 11 ischemic cerebral infarct. Cardiopulmonary 12 arrest. For some reason, possibly. But 13 cardiopulmonary arrest following colonoscopy and 14 polypectomy with a perforation being this 15 microscopic -- because you are talking about six 16 millimeters on a stretched tissue that in 17 reality in a live tissue -- and I showed how 18 much I removed. I mean, two millimeters. I 19 don't agree with this. 20 Q. Doctor, peritonitis can lead to 21 intraabdominal sepsis; true? 22 A. You use the very wrong term. 23 Q. Can peritonitis lead to 24 intraabdominal sepsis? 0081 1 MR. HUPP: He is just saying in 2 general now. 3 A. But there is no such thing as 4 intraabdominal sepsis. It means the infection 5 is in the bloodstream, not intraabdominal. 6 Unless you meant to ask if peritonitis can lead 7 to sepsis. 8 Q. Well -- 9 A. Clarify. 10 Q. Well, let's say, can peritonitis 11 lead to sepsis? 12 A. Yes, it can. 13 Q. Can peritonitis lead to sepsis that 14 begins in the intraabdominal mucosa? 15 A. Yes, it can. 16 Q. And can sepsis that occurs in the 17 intraabdominal mucosa be fatal? 18 MR. HUPP: Objection. Go ahead. 19 A. Sepsis can be fatal. 20 Q. And untreated peritonitis, can that 21 be fatal? 22 MR. HUPP: Objection. Go ahead. 23 A. Untreated peritonitis can cause 24 complications as sepsis and then be fatal. 0082 1 Q. Do you have an opinion as to whether 2 the location of the perforation as identified at 3 the autopsy, whether or not that would indicate 4 that the perforation was in the free 5 intraabdominal area? 6 A. Yes. I don't know what you meant 7 under free, but it's in the peritoneal cavity. 8 Q. Can intraabdominal sepsis result in 9 hypotension? 10 A. Yes, it can. 11 Q. What is abdominal compartment 12 syndrome? 13 A. Well, first of all, it has nothing 14 to do with the procedure I did. 15 Q. Just answer if you know what 16 abdominal compartment syndrome is. 17 A. I don't want to go into details of 18 it. 19 THE WITNESS: Do I have to answer? 20 Q. You do only because -- 21 MR. HUPP: Just in general terms. 22 Q. -- I get to ask the questions and if 23 you know what an abdominal compartment syndrome 24 is, because the question may lead to something 0083 1 that is relevant in this lawsuit, but it's not 2 so farfetched that you can refuse to answer it 3 unless Mr. Hupp advises me otherwise. 4 MR. HUPP: Regardless of its 5 application, in general terms, he is asking you 6 are you familiar with it. 7 A. Well, it's abdominal pain. 8 Q. Abdominal compartment syndrome is 9 abdominal pain? 10 A. Abdominal pain caused by pressure of 11 known or unknown etiology. 12 Q. And is abdominal compartment 13 syndrome a phenomenon that can occur in post 14 colonoscopy perforations? 15 A. Not as I observed. 16 Q. Are you aware of it being reported 17 in the literature that abdominal compartment 18 syndrome can result as a result of a 19 colonoscopic perforation? 20 A. Not as I know. I am not sure you 21 used the right term because there is another 22 complication that is called post polypectomy 23 syndrome. If you are talking about this, yes. 24 MR. HUPP: He didn't ask you that. 0084 1 Q. Do you specifically remember the 2 conversation with Mr. Thompson where you 3 indicated to him for purposes of the bloating 4 that he could reasonably attempt to use a 5 fleet's enema to resolve the lack of ability to 6 pass gas? 7 A. Yes. 8 Q. And that's something that you 9 independently remember? 10 A. I think so. 11 Q. It would have been reasonable then 12 for, if they had it in the house or if they 13 needed to go out to the pharmacy, for 14 Mrs. Thompson to go out and get the fleet's 15 enema and to use that; correct? 16 A. Sure. 17 Q. And to follow your advice that that 18 would be a reasonable course of action to 19 follow; correct? 20 A. Probably. 21 Q. You don't remember telling 22 Mr. Thompson, do you, that based upon the 23 conversation that you had with him that he 24 needed to call 911 and go back to the hospital; 0085 1 correct? 2 A. Can you either rephrase or repeat 3 your question? 4 Q. Sure. That's the first question 5 that I have asked you that wasn't clear. 6 MR. HUPP: It was clear. He just 7 needs to hear it again. Have Vivian re read it. 8 MR. MISHKIND: She is too busy 9 typing. I'll restate it. 10 Q. Is it fair to say that the 11 conversation as best as you can recall having 12 with Mr. Thompson, that you did not indicate to 13 him, Mr. Thompson, that he needed to call 911? 14 Is that a fair statement? 15 A. I can tell you what I recall. You 16 know, they need to call 911. I don't have to 17 restate. He had a written recommendation that 18 if he doesn't feel well, given from the 19 hospital, that if he doesn't feel well, he calls 20 911. 21 Q. Okay. 22 A. Now, what I told him upon my 23 conversation with him -- and again, I didn't cut 24 him short; we spoke for some time. 0086 1 Q. How long would you say you spoke? 2 A. Five minutes. 3 Q. Five to seven minutes? 4 A. Probably. 5 Q. Okay. 6 A. A long -- pretty long. It was not 7 like I asked him one question and said, you 8 know, do it. Pretty long. 9 I asked him what he is doing, where 10 he is, how he feels. I remember vividly -- 11 that's a routine question about pain, fever, 12 chills, passing gas. And that was the only 13 complaint. 14 And I vividly remember I told him, 15 because I repeated it after this, that if he 16 doesn't feel better to call me back. That's my 17 answer to the question. 18 Q. Okay. But you don't deny that you 19 told him that it would be okay to use a fleet's 20 enema? 21 A. I cannot deny it, no. 22 Q. Okay. And then if the fleet's enema 23 didn't resolve the problem, you believe you 24 probably told him -- 0087 1 A. Not probably, I definitely. 2 Q. Okay. That you definitely told him 3 then to call back? 4 A. Or to go to the hospital. 5 Q. All right. Have you talked with 6 any, since the time of your deposition, have you 7 talked with any of the physicians that were 8 involved in any of Mr. Thompson's medical care, 9 his internist or any of the other physicians as 10 it relates to the cause of Mr. Thompson's death? 11 A. Never. 12 Q. And if I understood correctly, I 13 think your attorney indicated that you do not 14 intend to testify to a reasonable degree of 15 probability as to the cause of Mr. Thompson's 16 death? 17 MR. HUPP: I can stipulate he will 18 not be asked opinion questions. And that should 19 be good enough. 20 MR. MISHKIND: It should be. 21 Q. Doctor, do you recall making the 22 phone call to the Thompson residence after 23 Mr. Thompson passed? 24 A. No. 0088 1 Q. Did you, in fact -- 2 A. I'm sorry, I apologize. I did make 3 two calls. 4 Q. Two calls? 5 A. Right. I thought you meant after I 6 spoke to him when he complained of bloating did 7 I call again to him, no. But I called twice. 8 Q. Okay. This is after he had passed? 9 A. Right. 10 Q. Passed away. And did you ever talk 11 with Mrs. Thompson? 12 A. No. I spoke to their daughter. I 13 believe it was the daughter. 14 Q. You spoke to a female? 15 A. A young female. I think she 16 indicated that she was the daughter. I believe. 17 Right. 18 Q. This was on two occasions? 19 A. Twice, yes. 20 Q. On the same day? 21 A. On the same day later in the 22 afternoon -- well, with the distance, I don't 23 remember now, I can't recall. An hour or two 24 hours. 0089 1 Q. Did you talk to the Thompson family 2 at South Pointe after Mr. Thompson had come back 3 and was admitted to the hospital prior to his 4 demise? 5 A. Well, I was in the hospital. I saw 6 Mr. Thompson. I looked. I asked the nurse 7 where the family is. The family was not there. 8 I went to the waiting room, waiting area where 9 we have an area for the families and they were 10 not there. I couldn't find them. I intended 11 to. 12 Q. Fair enough. And at the time that 13 you saw Mr. Thompson at the hospital, he had 14 already arrested; correct? 15 A. Absolutely, yes. 16 Q. He was hypotensive and on pressors? 17 A. He was intubated. He was on a 18 ventilator. 19 Q. So when you saw him he was 20 intubated. I presume you looked at the chart 21 and saw that he was acidotic; is that a fair 22 statement? 23 A. Probably, yes. I looked through his 24 chart. 0090 1 Q. And the symptoms being hypotensive, 2 on pressors, being intubated, being acidotic, 3 can we agree these were all manifestations of 4 sepsis? 5 MR. HUPP: Objection. 6 A. Those are manifestations of shock, 7 be it traumatic shock or septic shock or any 8 other shock. 9 Q. Do you have an opinion as to what 10 type of shock he was experiencing that caused 11 him to be hypotensive, acidotic, and requiring 12 intubation? 13 MR. HUPP: Objection. We have 14 already said he is not going to opine on cause 15 and yet you keep asking the questions. 16 So I'm going to instruct you not to 17 answer that one. 18 MR. MISHKIND: Okay. 19 MR. HUPP: There is more than enough 20 experts going around, Howard. I have given you 21 more than a fair shot here. 22 MR. MISHKIND: I understand. 23 Q. Doctor, there is a reference in the 24 record to Mr. Thompson drinking alcohol or 0091 1 having an ETOH history. I'll give you a 2 specific reference. 3 Under the history -- this is in the 4 surgical services note. Do you have that? 5 MR. HUPP: Here is his too. 6 A. Under my history too it says. 7 Q. Where? Help me out here. 8 MR. HUPP: Right there. 9 Q. Under PSH it says married -- is that 10 positive cig? 11 A. Cigarettes. Coffee, two cups a day. 12 ETOH alcohol. That's from him, and this was 13 done eight days, I think, before the procedure. 14 Q. Where it says ETOH, I just want to 15 understand, are you suggesting that he had some 16 type of an alcohol abuse? 17 A. That's what my understanding was. 18 Q. What did you understand that he had 19 some type of an alcohol abuse? 20 A. Well, I don't mark social drink once 21 a week or twice a week. And as I understand 22 that he told me that -- when I mark it, I mean 23 it's either every day or at least four or five 24 times a day. 0092 1 Q. Four or five times a day? 2 A. A week, I'm sorry. I probably asked 3 him a direct question, are you a drinker, and he 4 said yes. 5 Q. Doctor, is there any association in 6 your opinion to any alcohol consumption, whether 7 it be social or alcohol abuse, to any of the 8 complications that he had following the 9 colonoscopy? 10 MR. HUPP: Objection. Go ahead. 11 A. Again, you are asking my opinion and 12 I'm not an expert in sudden death or alcohol 13 abuse. But, yeah, there is a condition called 14 alcoholic cardiomyopathy. 15 Q. Would alcohol abuse or alcohol use 16 cause any type of a colonic perforation? 17 A. By itself? 18 Q. With the assistance of the surgeon 19 who has done a polypectomy. 20 A. Not in my experience or anything in 21 the literature. 22 Q. And in the hospital record, there is 23 a note, I'll show you, it says ETOH abuse. Do 24 you know, is that your handwriting? 0093 1 A. I have to look. Yes, it's my 2 handwriting. 3 Q. Okay. And it looks like that says, 4 is that mild hypertension? 5 A. Yes. 6 Q. And again, in terms of the nature 7 and the extent of his ETOH abuse, are you able 8 to quantify that for me? 9 A. No. I don't recall. No. 10 THE WITNESS: I think it's not only 11 my records, it's other people's. 12 MR. MISHKIND: Doctor, that's my only 13 question. 14 THE WITNESS: I'm talking to my 15 lawyer. 16 MR. MISHKIND: It's on the record, 17 though if you are talking to your lawyer. 18 THE WITNESS: Oh, is it? 19 MR. HUPP: When you say it, it is. 20 MR. MISHKIND: You can't erase 21 anything. It's one of those rules. 22 THE WITNESS: I didn't ask anything. 23 Q. Doctor, have I been fair to you 24 throughout the course of this deposition? 0094 1 MR. HUPP: Let me object, but go 2 ahead. 3 A. Yeah. 4 Q. Have I given you every opportunity 5 to explain what you did and what your 6 conversation was with Mr. Thompson the evening 7 after his polypectomy? 8 A. Every opportunity? I answered your 9 questions. The reason for me to be here is to 10 answer your questions. Did I fully answer your 11 questions? Whatever you asked, I tried. 12 Q. Did I cut you off? 13 MR. HUPP: He is talking about him, 14 not you. 15 Q. Doctor, listen to my question. 16 A. No, you didn't cut me off. 17 Q. I was fair in terms of allowing you 18 to explain things? 19 A. To your questions, yes. 20 Q. Is there anything that you wanted to 21 tell me relative to the procedure, the 22 colonoscopy and the polypectomy, that we did not 23 discuss or that was not previously discussed in 24 the prior deposition? 0095 1 MR. HUPP: I'll object, but you can 2 answer that. 3 A. Well, I think I can talk about 4 colonoscopies for hours. 5 Q. I understand that. But in terms of 6 Mr. Thompson's colonoscopy -- 7 A. Mr. Thompson's colonoscopy started 8 uneventfully. He was well prepped. 9 I would like to add that perforation 10 of this size, especially of the colon, on a 11 prepped colon -- and that's what I want to 12 emphasize, because there is a difference between 13 prepped clean colon -- and what I can see on 14 your pictures that you showed me, it's a clean 15 colon -- and the colon that is not clean is a 16 big difference. 17 Q. He was well prepped; correct? 18 A. He was excellently prepped. 19 Q. He did a good job preparing himself? 20 A. He did a great job preparing 21 himself. And a perforation -- now I can give 22 you an extreme example how an operation for some 23 reason people got the impression that air in the 24 peritoneal cavity is something detrimental by 0096 1 itself and it's not true. 2 When the operation is done on the 3 peritoneal cavity, the cut is done through the 4 abdominal wall into the peritoneal cavity. A 5 part of the gut, let me say, is taken out, cut, 6 sutured together, put back, the abdomen is put 7 back. The abdominal cavity, the perforation of 8 the abdominal cavity is as big as a football. 9 Now, every week, and a few times a 10 week I do procedures called percutaneous 11 endoscopic gastrostomy tube placement. When I 12 put the feeding tube through the stomach and the 13 abdominal cavity is full of air as a result, 14 because I make a hole in the stomach, there is a 15 new type of surgery now that is called 16 transgastric surgery. Surgery is done 17 endoscopically and holes are made in the stomach 18 to approach let me say gallbladder or pancreas. 19 So air by itself, especially on the 20 prepped colon, is nothing detrimental. I don't 21 see -- I see very local peritonitis on what the 22 pathologist described and you described. I 23 don't see any signs of sepsis in the 24 presentation of the patient. I don't see the 0097 1 consequences of development of peritonitis, 2 sepsis, shock. 3 If I'm not mistaken, thus my 4 recollection from the chart, the blood cultures 5 were negative for flora, for the bacterial 6 organisms, and I just don't see this what you 7 may see. So that's what I would like to add. 8 MR. HUPP: I think you answered. 9 Q. Having added that now, have I given 10 you every opportunity to explain the clean 11 prepped colonoscopy and polypectomy that you did 12 on Mr. Thompson? 13 A. Yeah. 14 Q. And what you eventually saw when he 15 came back to the hospital in terms of his 16 condition and the labs? 17 A. Well, absolutely unexpected. 18 Q. Have you explained adequately -- 19 A. Not by the colonoscopy. Even at 20 that time, I couldn't explain what I saw when he 21 came back to the hospital by colonoscopy or this 22 localized peritonitis. 23 MR. HUPP: Doctor, Mr. Mishkind is 24 attempting to make sure that he heard all of the 0098 1 testimony factually that he is going to hear at 2 the time of trial. 3 So listen very carefully to his 4 question. And I think we have done it because I 5 heard it all. But listen to his question, 6 please. 7 A. Ask me again. 8 Q. Doctor, all I want to do is complete 9 things, allow Vivian to rest her fingers, and 10 thank you for your time, but I want to make sure 11 that I have done my job in giving you an 12 opportunity to explain all of the facts and 13 circumstances surrounding the colonoscopy. 14 You have explained to me potential 15 complications associated with colonoscopy and 16 polypectomy. You explained to me why you believe 17 that the events that occurred that evening when 18 you spoke to him on the phone did not mandate or 19 warrant him being told at that point to come 20 back to the hospital immediately; correct? 21 A. Yes. 22 Q. You have also told me why you feel 23 it was reasonable, given the symptoms that he 24 described to you, to say an enema is a 0099 1 reasonable thing to do to try to deal with the 2 inability to pass gas; true? 3 A. That's true. 4 Q. Okay. Do you believe there is 5 anything that your patient, Mr. Thompson, failed 6 to do, looking at this case now and going over 7 it in your mind that caused or contributed to 8 his death? 9 MR. HUPP: Objection. 10 A. No. I was not there. I don't know 11 what he did or he didn't do. I don't know what 12 his wife did or didn't do. So I cannot judge 13 it. 14 Q. So as you sit here right now, is 15 there any basis for you to say that he didn't do 16 what he should have done and I blame the patient 17 for this terrible outcome? 18 MR. HUPP: I'll stipulate that there 19 is going to be no comparative negligence in this 20 case. 21 MR. MISHKIND: Very good. 22 MR. HUPP: I'll stipulate to that. 23 Q. Now, doctor, my last question, have 24 I been fair to you in giving you a full 0100 1 opportunity to explain things during the course 2 of this deposition? 3 A. Yeah. You didn't close my mouth. 4 Q. Very good. Thank you. Thank you 5 for your time. 6 MR. MISHKIND: Would you like the 7 doctor to read the transcript? 8 MR. HUPP: Definitely. 9 - - - - - 10 (Deposition concluded at 4:17 p.m.) 11 (Signature not waived.) 12 - - - - - 13 14 15 16 17 18 19 20 21 22 23 24 0101 1 AFFIDAVIT 2 I have read the foregoing transcript from 3 page 1 through 100 and note the following 4 corrections: 5 PAGE LINE REQUESTED CHANGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 MARK MELAMUD, M.D. 21 22 Subscribed and sworn to before me this 23 day of , 2007. 24 Notary Public My commission expires . 0102 1 CERTIFICATE 2 State of Ohio, SS: 3 County of Cuyahoga. 4 I, Vivian L. Gordon, a Notary Public 5 within and for the State of Ohio, duly commissioned and qualified, do hereby certify 6 that the within named MARK MELAMUD, M.D. was by me first duly sworn to testify to the truth, the 7 whole truth and nothing but the truth in the cause aforesaid; that the testimony as above set 8 forth was by me reduced to stenotypy, afterwards transcribed, and that the foregoing is a true 9 and correct transcription of the testimony. 10 I do further certify that this deposition was taken at the time and place specified and 11 was completed without adjournment; that I am not a relative or attorney for either party or 12 otherwise interested in the event of this action. I am not, nor is the court reporting 13 firm with which I am affiliated, under a contract as defined in Civil Rule 28(D). 14 IN WITNESS WHEREOF, I have hereunto set my 15 hand and affixed my seal of office at Cleveland, Ohio, on this 29th day of October, 2007. 16 17 18 19 Vivian L. Gordon, Notary Public Within and for the State of Ohio 20 My commission expires June 8, 2009. 21 22 23 24 0103 1 INDEX 2 3 EXAMINATION OF MARK MELAMUD, M.D. 4 5 6 BY MR. MISHKIND: 3 7 7 8 EXHIBITS 9 10 Exhibit 1 was marked 20 12 11 Exhibit 2 was marked 62 20 12 13 14 15 16 17 18 19 20 21 22 23 24