1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 4 ___________________________________ ) 5 DAVID RAY, et al., ) ) 6 Plaintiffs, ) ) JUDGE BOYKO 7 vs. ) CASE NO. 185632 ) 8 KIM STEARNS, M.D., et al., ) ) 9 Defendants. ) ) 10 ___________________________________) 11 12 13 14 15 DEPOSITION OF MARK H. MIKULICS, M.D. 16 POWAY, CALIFORNIA 17 APRIL 4, 2001 18 19 20 21 Reported by Harry Alan Palter, CSR No. 7708 PRS Job No. 1-64242 22 23 PAULSON REPORTING SERVICE 24 555 West Beech Street, Suite 111 San Diego, California 92101 25 (619) 239-4111 FAX (619) 239-4117 1 1 Appearances: 2 3 For Plaintiffs: 4 Linton & Hirshman By: Tobias Hirshman, Esq. 5 Hoyt Block Suite 300 700 West St. Clair Avenue 6 Cleveland, Ohio 44113 7 For Defendants: 8 Bickingham, Doolittle, et al. 9 By: Ronald Wilt, Esq. 1375 East 9th Street, Suite 1700 10 Cleveland, Ohio 44114 11 12 13 14 15 16 17 18 19 20 21 DEPOSITION OF MARK MIKULICS, M.D., 22 taken at 15644 Pomerado Road, Suite 204, Poway, 23 California, on Thursday, April 4, 2001, at 6:35 p.m., 24 before Harry Alan Palter, Certified Shorthand Reporter 25 No. 7708, in and for the State of California. 2 1 I N D E X 2 WITNESS: MARK MIKULICS, M.D. 3 EXAMINATION PAGE 4 By Mr. Wilt 4 5 6 7 8 9 INDEX TO EXHIBITS 10 EXHIBIT MARKED 11 A Letter dated 8.9.2000 from 12 Tobias Hirshman to 12 Mark Mikulics, M.D. 13 B Curriculum Vitae 46 14 C Article: Rupture of the 46 Distal Tendon of the 15 Biceps Brachii 16 D Article: Posterolateral 46 Approach to the Radial Head 17 E Chapter 30: Tendon Injuries 47 18 About the Elbow 19 20 * * * 21 22 23 24 25 3 1 POWAY, CALIFORNIA; THURSDAY, APRIL 4, 2001; 6:35 P.M. 2 3 MARK MIKULICS, M.D., 4 having been duly administered an oath in accordance with 5 Code of Civil Procedure Section 2094, was examined and 6 testified as follows: 7 8 EXAMINATION 9 BY MR. WILT: 10 Q Please state your name. 11 A Mark H. Mikulics, M.D. 12 Q And what is your present business address? 13 A 15644 Pomerado Road, Suite 204, Poway, 14 California 92064. 15 Q Okay. 16 And what is your area of specialty? 17 A Orthopedic surgery. 18 Q And how long have you been practicing 19 orthopedic surgery? 20 A 10 years. 21 Q Do you happen to have a CV? 22 A I don't have one on me, no. 23 MR. WILT: Do you have a CV, Toby? I don't 24 believe I was provided one. 25 MR. HIRSHMAN: Yeah. I do. I have one. 4 1 We'll speed things up with that. 2 BY MR. WILT: 3 Q Okay. 4 I see you did a hand fellowship? 5 A Yes. 6 Q Is there any board certification in hand 7 surgery? 8 A No. 9 Q Are there any special fellowships in upper 10 extremity orthopedic surgery other than hand 11 fellowships? 12 A There are sports-medicine fellowships that 13 focus on the shoulder and the knee. 14 Q Other than that? 15 A Not that I'm aware of. 16 Q Okay. 17 As far as the issues we're involved with in 18 this case, distal biceps tendon repair, is that 19 something that most orthopedic surgeons are taught and 20 trained during a general orthopedic surgery residency? 21 A Yes. 22 Q I talked to Mr. Hirshman -- we'll try to get 23 through this deposition as quickly as I can. However, 24 if we're unable to, I wanted to know whether or not you 25 would be possibly available tomorrow night by phone just 5 1 to complete whatever I don't get through today and Toby 2 and I could get on a conference call if you could put 3 yourself on a speaker phone so the court reporter could 4 hear you? 5 A Yes. It would depend on the time. As long 6 as it wasn't too late, I could do it. 7 Q Since you're going to be three hours behind 8 us, I think we could probably accommodate that. 9 A Yeah. 10 Q What I want to do, though -- I want to save 11 some of your background and all kind of peripheral stuff 12 for later in case we don't get it tonight and let's talk 13 about the meat of the matter. 14 Tell me exactly what criticisms you have of 15 my client, Dr. Stearns. 16 A I am critical of the fact that he performed a 17 distal biceps tendon repair and the patient 18 postoperatively was left with a posterior interosseus 19 nerve palsy. 20 Q Okay. 21 Let me see if we can ferret this out with a 22 little more specificity. 23 Is your criticism that a surgical repair 24 should not have been performed by anybody on this 25 particular patient? 6 1 A No. 2 Q Okay. 3 Then, if you could, tell me what it was about 4 Dr. Stearns's repair that you believe deviated from 5 standards of care? 6 A I can't tell you what maneuver or action it 7 was that he did that resulted in the palsy. I can tell 8 you only that postoperatively -- excuse me, 9 preoperatively, the patient did not have a palsy; 10 postoperatively, he did have a palsy, and there is a 11 cause-and-effect relationship. 12 Q All right. Great. I appreciate that. 13 And if I'm shaking a little bit it's 'cause 14 I've been sick for for the last couple days and it's 15 kind of late, as Toby knows. 16 Are these the items that you've reviewed in 17 preparation for the deposition? 18 A Yes. 19 Q Okay. 20 A There's also one other that I can't find. 21 Q Okay. 22 Do you know the name of -- 23 A Yes. 24 Q What is it? 25 A It's the November, 2000, issue of JBJS. 7 1 Q And what was it in that issue that you 2 reviewed in preparation for your deposition? 3 A It's an article covering about, I think, 70 4 distal biceps tendon repairs. And I can't find -- I 5 can't find it. 6 Q All right. 7 If you find it between now and the trial, 8 would you be sure to send Mr. Hirshman a copy so he can 9 forward that to me? 10 A Well, I'll find it, but if I don't find it, 11 I'll get it on line. It's on line. I reviewed the 12 abstract on line last night but I want the article in 13 front of me. 14 Q Let's see what else. 15 You have the Journal of Bone and Joint 16 Surgery, issue number 3, 67-A, pages 351 through 510. 17 Could you tell me what specific article in 18 that you referred to? 19 A This is the March, '85, article by Morrey out 20 of Rochester, Minnesota, from the Mayo Clinic. They did 21 a biomechanical analysis on 10 patients. 22 Q What is it about that article that you 23 believe is of significance to your opinions in this 24 case? 25 A It discusses the surgical approach. It 8 1 discusses their results. And in their results, there 2 were no radial nerve injuries. 3 Q Were there any posterior interosseus nerve 4 injuries? 5 A No. And we kind of use those 6 interchangeably. 7 Q Right. 8 And I understand the radial nerve comes down 9 and branches off. And one of the branches is the 10 posterior interosseus nerve, and that's the motor branch 11 of the radial nerve. 12 Are we on the same page? 13 A Man, you are slick. 14 MR. WILT: Can I see that article, Toby, 15 before you take it away? Thanks. 16 BY MR. WILT: 17 Q What else do you have, Doctor? 18 A I've got the same man, Morrey, who wrote the 19 text on the elbow. And it describes -- there's an 20 entire chapter here about tendon injuries, chapter 30 21 from his text. 22 Q Okay. 23 A And, again, this describes the surgical 24 technique and the complications. 25 Q All right. 9 1 And tell you what we can do -- is Peter still 2 out there? 3 A I think he probably -- 4 Q If he is, what we can do is just make a copy 5 of these articles before I leave today, and that will 6 save us some time and trouble and I can ask you some 7 questions -- 8 A If he's not there, I'll make sure you get 9 copies. 10 Q Okay. That's great. All right. 11 What else do you have besides a prescription 12 pad? 13 A I have a -- it's called "Hoppenfeld." It's a 14 surgical exposure book. And what's salient here is page 15 100 showing the relationship of the posterior 16 interosseus nerve when the arm is in pronation versus 17 supination. 18 Q Okay. 19 This one? 20 A This one right here (indicating). 21 Q And why is that significant? 22 A That's significant because, depending on 23 whether you're working through the anterior incision or 24 the extensor incision, you need to know whether you 25 should be pronated or supinated. 10 1 Q Okay. 2 And why do you need to know whether you need 3 to be pronated or supinated depending on the incision? 4 A You don't want to be near the nerve. 5 Q Okay. 6 A Pronation or supination will move the nerve 7 in one direction or the other so that when you're going 8 through the anterior approach, you want to make sure 9 that you're supinated. And when you're going through 10 the extensor approach, you want to be to make sure that 11 you are pronated. 12 Q And that, at least in theory, should help 13 move the radial nerve or posterior interosseus nerve 14 away from the operative field and out of harm's way; is 15 that correct? 16 A That's correct. 17 Q Okay. 18 What else have you reviewed? 19 A And then the article a couple months ago that 20 I don't have in front of me. 21 Q What else do you have there, though? 22 A Oh, I have a bunch of medical records. 23 Q Okay. 24 A And I have -- I believe these are three 25 depositions. I have a deposition of Kim Stearns, M.D.; 11 1 deposition of David Ray; and reports of James 2 K-l-e-j-k-a, M.D. 3 Q Okay. 4 MR. HIRSHMAN: You're wise not to try to 5 pronounce it. 6 MR. WILT: Klejka. 7 What I'd like to do is just attach 8 Mr. Hirshman's letter -- 9 MR. HIRSHMAN: Let me take a look at it, if I 10 might. 11 MR. WILT: Sure. I think these other 12 records, I have a copy of all this. 13 MR. HIRSHMAN: Save the trees. 14 MR. WILT: Absolutely. 15 (Exhibit A marked) 16 BY MR. WILT: 17 Q What muscles are innervated by the 18 interosseus nerve? 19 A Your extensors: the extensor digitorum 20 commonis [sic]; the extensor carpi radialis brevis, 21 maybe the longus at times; the extensor indicis -- if I 22 said extensor digitorum commonis -- extensor pollicis 23 longus, extensor digiti minimi. I think that's about 24 it. 25 Q Okay. 12 1 And tell me: If you injure the interosseus 2 nerve at the level of the elbow, what function would you 3 normally expect a patient to lose in the movement of 4 their upper extremity? 5 A It would depend whether you're talking about 6 a complete lesion or an incomplete lesion. 7 Q Let's talk about a complete lesion. 8 A If you had that, you would have weakness of 9 finger extension or absence and weakness of wrist 10 extension. There's some variation and I know you're 11 going to want to get particular on this versus the 12 radial nerve versus the posterior interosseus nerve. 13 The extensor carpiradialis longus, or the 14 ECRL, is usually innervated by the radial nerve, 15 sometimes by the posterior interosseus nerve, so that if 16 you had a strict posterior interosseus nerve injury, you 17 might spare some of your wrist extensors because of the 18 ECRL but your ECRB would probably be significantly 19 affected so there's some variation there regarding the 20 innervation. 21 Q Okay. When we're talking about, though, 22 extension of the hand, I think Mrs. Ray indicated a 23 couple days ago that from her perspective, her husband 24 was able to extend his fingers -- I think she said to 25 about 60, 65 percent up from a fist. 13 1 MR. HIRSHMAN: I'm not sure she said that 2 location -- 3 MR. WILT: Just assume -- 4 MR. HIRSHMAN: If you're trying to make an 5 assumption, that's fine. 6 MR. WILT: Just assume that. 7 MR. HIRSHMAN: Okay. 8 BY MR. WILT: 9 Q Would that be consistent with what kind of 10 limitations in functions you would expect with a lesion 11 to the interosseus nerve? 12 A Yes. 13 Q In this case, do you have an opinion to a 14 degree of medical probability whether this is a complete 15 lesion or a partial lesion? 16 A I believe it is a partial lesion. 17 Q Why do you believe it's a partial lesion? 18 A Because it appears to have partial function. 19 Q Tell me what you're relying upon when you say 20 it has partial function? 21 A The wrist is intact. 22 Q Okay. 23 A It has only affected the fingers. So that 24 means to me that the nerve is at least partially 25 intact. 14 1 Q All right. 2 In patients who have distal bicep tendon 3 ruptures, there's an acute distal bicep tendon rupture, 4 there's a time period when it's considered acute and 5 then there's chronic. How do you differentiate the two? 6 A I use two weeks as -- well, I don't really 7 call them acute and chronic. I look at them from a 8 perspective of when can I do a repair versus not do a 9 repair or a more difficult repair? And two weeks or 10 less, it is a less difficult repair. Between two weeks 11 and six weeks, it is a more difficult repair. And then 12 after 12 weeks, you really can't repair anything. 13 Q Okay. 14 If Mr. Ray's injury occurred -- I believe on 15 September 22nd -- would it be two weeks from that date 16 that his repair would have likely required a graft 17 procedure? 18 A That was a tough one. 19 If repaired within two weeks, he would most 20 likely not require a graft. 21 Q Okay. 22 You know what? That was a bad question. Let 23 me ask you this way -- anytime I don't ask a question -- 24 it's late; I'm tired -- just say, "Ron, you missed on 25 that one," and I'll try again. 15 1 Tell me, if you can, to a degree of medical 2 probability at what point in time starting from 3 September 22nd you believe Mr. Ray was going to require 4 a graft-type procedure. 5 A At about six weeks post-injury is where you 6 have to start considering using a graft. 7 Q Does the fact that Mr. Ray was a fairly 8 muscular man, used to be a bodybuilder -- does that 9 impact at all the timing or the likelihood that he's 10 going to need a graft-type procedure? 11 A No. It would be no different in him versus a 12 thin, nonbodybuilder type. 13 Q Does the body type of a person, bodybuilder 14 type -- does that influence at all the technical 15 difficulty of the procedure? 16 A Yes. 17 Q How so? 18 A The more muscular you are, the more muscle 19 you have to move, the more muscle you have to retract to 20 get to your goal. 21 Q Okay. 22 You've reviewed Dr. Stearns's deposition? 23 A Yes. 24 Q Okay. 25 And in it there's a fairly detailed 16 1 description of the way he performed this procedure and 2 also that description is also in his operative report. 3 Based upon his descriptions of the procedure, 4 I think what you're telling me, and you said this at the 5 beginning of the deposition, there's nothing about the 6 technical way he's described he performed this that is 7 below the standard of care, but it's your opinion that 8 he did something that maybe he's not describing that 9 caused this palsy because a palsy when performing this 10 should not occur in the interosseus nerve. 11 Is that a fair summation? 12 A Yes. 13 Q If you were performing a tendon biceps repair 14 in a patient like David Ray, what risks would you advise 15 him about that procedure? 16 And let's take it at two points in time. 17 Let's take it at the first time he he appears to 18 Dr. Stearns, which is I think October 16th, and then at 19 the time the surgery is performed at November 9th. And 20 if they're not any different, then that's fine, also. 21 Just tell me that. 22 A I'll start with how they might be different. 23 Because of the time delay, I would caution 24 the patient later that he might require a graft. I'm 25 not sure if that fits into your description of 17 1 complications. 2 Q No, no, no, no, no. I'm not -- I'm just 3 saying risks, complications, also, if it's going to be a 4 more complex surgery, I think that falls within that 5 general consent-type discussion. 6 A That's the word I was looking for. 7 I think if I was going to consent him later, 8 I'd definitely include the fact he might need a graft. 9 And we'd have to talk about where that graft was going 10 to come from. 11 Later we'd also have to talk about just 12 simply not being able to do the repair because of too 13 much retraction. We would talk -- we'd also talk about 14 what I call "step-cut lengthening" where you try to 15 lengthen the tendon itself rather than using a graft. 16 Those things would probably not be necessary 17 in the earlier time period. But in general, what I 18 would consent a patient for is that the anterior scar 19 typically becomes hypertrophic, thick; that they will 20 have two scars. 21 I would consent him regarding radioulnar 22 synostosis, where the two bones grow together. I would 23 consent them for an elbow flexion contracture because 24 when you postoperatively put the patient's elbow in 25 flexion to relax the tension on the biceps and you may 18 1 not get all of their extension back. 2 The time that it takes to do this procedure 3 is somewhere around an hour, an hour and a half. And 4 because that length of time that the patient is open, I 5 would consent him regarding infection. And I would 6 consent them regarding a radial nerve injury, telling 7 them that this nerve -- and I'll typically show them 8 this picture here -- lies very, very close to the 9 operative field and there's a chance that they could end 10 up with a temporary palsy afterwards. 11 What I tell them at that point is that it's 12 been my experience that with the two incision approach, 13 that these palsies are temporary and that they resolve 14 and that I've not experienced a complete palsy. I would 15 consent them about rerupture. Most of these injuries 16 occur in big guys and, if they start lifting again, they 17 can rerupture. 18 Let me think. I think that's about it. Did 19 I miss something? 20 Q No. I think you covered them all. 21 With the synostosis, if that occurs, would 22 function would be limited? 23 A They don't have any pronation or supination. 24 In a synostosis, the radius and the ulna grow together. 25 Q Right. 19 1 And isn't it true that -- let me just take 2 you through kind of the history of this. 3 There's a group of surgeons or there's a body 4 of literature that would just use the one incision 5 approach, the anterior approach to repair the distal 6 biceps; correct? 7 A Correct. 8 Q And one of the primary risks or the greatest 9 risks of using that approach was an injury to the radial 10 or interosseus nerve; correct? 11 A Correct. 12 Q And, in fact, it was the fear of that injury 13 that is what the two-incision approach bore out of was 14 to try to avoid that injury. 15 A Correct. 16 Q Okay. 17 But unfortunately in doing the two incision 18 approach, you then have an increased risk of the syno -- 19 A Synostosis. 20 Q -- synostosis; correct? 21 A Correct. 22 Q Okay. 23 And is -- in this case, do you have an 24 opinion to a medical degree of probability as to the 25 exact mechanism of injury, whether it was by retraction 20 1 or direct trauma, by scalpel, or whether it was a 2 compression injury? Do you have an opinion exactly what 3 caused this permanent palsy -- 4 A No. 5 Q -- in Mr. Ray? Okay. 6 In patients with a distal bicep rupture, 7 let's talk about dominant versus nondominant arm. 8 Isn't it true that a repair in the 9 nondominant arm, as a rule, does not have as good a 10 recovery as a repair in a patient's dominant arm? Have 11 you read that in the literature? 12 A No. 13 Q Let's just take Mr. Ray. 14 At the time he had the procedure performed on 15 November 9th, about six weeks or so after the injury 16 occurred, would you have expected him, absent a palsy, 17 to have regained complete, normal function in his left 18 arm to the same extent that he had prior to the 19 rupture? 20 A No. 21 Q What limitations would he likely have had? 22 A The patients continue to complain of an ache. 23 Q With prolonged use if they're -- especially 24 if they're doing, what, supination? 25 A Supination, elbow flexion. 21 1 There is the -- what my patients call the 2 "fear factor," and it's very real. They tend to not 3 use the affected arm for as many power maneuvers as they 4 did prior to their injury. And, again, because these 5 are typically big guys doing big things, they notice 6 that as opposed to skinny doctors and lawyers. 7 Q So in other words, and when we're talking 8 about this so people can understand, the movements we're 9 talking about -- let's say if you were using a 10 screwdriver. That would be a movement that somebody's 11 had a distal biceps tendon rupture, if they're doing 12 this for a fairly prolonged period of time, they'll 13 start -- first they'll fatigue and they'll also complain 14 of an aching? 15 A Correct. 16 Q And also, I think what you're referring to as 17 this fear factor, these men tend to because of the 18 trauma of having ruptured a major muscle like that, -- 19 tend to not feel comfortable lifting the same amount of 20 weight with that arm that they would have lifted prior 21 to the repair? 22 A That's correct. 23 Q Okay. 24 In your practice, what type of approach did 25 you use with a distal tendon bicep repair? 22 1 A I use the two-incision approach. 2 Q Have you ever had a patient develop a palsy, 3 a temporary palsy or a neuropraxia, in the radial nerve 4 distribution following a distal bicep tendon repair? 5 And I know you haven't had a permanent one. I'm saying 6 a temporary. 7 A I just don't remember. And probably because 8 it was a temporary thing, I didn't dwell on it. 9 Q So when this patient first came back to see 10 Dr. Stearns, was it fair for him to at least at that 11 point, a week or two postop, to assume that this was 12 going to be something that resolved? 13 A Absolutely. 14 MR. HIRSHMAN: Let me object, first of all. 15 There's two stories here. 16 MR. WILT: That's fine. 17 I'm asking you to assume Dr. Stearns has 18 testified that he was not aware that this patient had 19 any problems with his hands until he turned up two weeks 20 postoperatively and at that time Dr. Stearns noticed he 21 couldn't flex his fingers. 22 BY MR. WILT: 23 Q Given that assumption, I take it it was fair 24 for him to assume this was a temporary neuropraxia and 25 to tell the patient, look, hopefully this should resolve 23 1 within a period of weeks or months? 2 A Yes. 3 Q Can a partial neuropraxia to a nerve result 4 from retraction on a nerve? 5 A Yes. 6 Q Can you cause a partial neuropraxia on a 7 nerve by retracting it even though it's being retracted 8 while it's still encased in muscle? 9 A Yes. 10 Q When performing a distal biceps tendon 11 repair, especially using a graft, what in your opinion 12 is the most technically difficult part of that 13 procedure? 14 A Deciding whether or not you should use the 15 graft. We don't like to use the graft. 16 Biomechanically, it's inferior, but once you've made 17 that decision, the operation's actually easier because 18 you don't have -- your tension is not that critical. 19 So the technical difficulty really doesn't 20 center around harvesting the graft -- in this case, 21 fascia lata -- 22 Q Right. 23 A The difficulty is more with the 24 decision-making. 25 Q Okay. 24 1 Was it appropriate in Mr. Ray's case, as 2 Dr. Stearns testified and I think Mr. Ray testified to 3 this also -- for Dr. Stearns to offer Mr. Ray, "You have 4 the option of doing nothing." 5 A Yes. 6 Q And, also, you have the option of trying to 7 repair this. 8 A Yes. 9 Q How many distal bicep tendon repairs have you 10 performed? And -- actually, just go ahead and answer 11 that question. 12 A Five. 13 Q Okay. 14 How many -- 15 A Go ahead. 16 Q How many of those involved the use of a 17 graft? 18 A None. 19 Q If you had a patient who you believed needed 20 a graft, do you feel comfortable to perform that 21 yourself? 22 A Sure. 23 Q And I think Dr. Stearns described this in his 24 deposition, also, that -- and I think this goes to 25 decision-making. 25 1 Was it appropriate for him to not make the 2 decision about whether or not to use a graft or not 3 until he opened the patient up and actually visualized 4 the muscle to see the condition it was in? 5 A Yes. 6 Q Are you critical of Mr. Ray at all for the 7 delay of time prior to undergoing the repair? 8 A That one I don't understand. 9 Q Okay. 10 In other words -- well, tell you what. Let's 11 just start from the beginning. 12 The injury occurred on September 22nd. 13 Mr. Ray presented to an emergency room, and you have 14 those records of the Elyria medical clinic. They 15 diagnosed him as having a sprain. 16 First, are you critical of those physicians 17 and their care and treatment? 18 A No. 19 Q Did you see in there -- I believe -- I 20 believe they recommended that Mr. Ray follow up with his 21 primary care -- I want to be exact here -- follow up in 22 two days. And was that an appropriate instruction for 23 those doctors to give him? 24 A Yes. 25 Q Do you know, as you sit here today, when it 26 1 was Mr. Ray followed up? 2 A No. 3 Q If I told you it was on October 8th, 1998, he 4 followed up with his family practitioner, would you be 5 critical of Mr. Ray for waiting so long to follow up 6 with his -- with another physician? 7 A When was the fall again? 8 Q When was what, Doctor? 9 A When was the injury again? 10 Q September 22nd. In fairness to Mr. Ray, he 11 saw the physicians on September 23rd. 12 A No. 13 Q Why not? 14 A Well, he's a patient. I don't think it makes 15 any difference whether he presents to the surgeon two 16 days postop or two months -- excuse me post-injury -- or 17 two years post-injury. The surgeon knows what he or she 18 is getting into. 19 Q Okay. 20 A So, no, I'm not critical of the patient. 21 Q All right. 22 So even though the patient was told to follow 23 up in two days but waited two weeks, that's okay? 24 A It's okay because then you deal with a 25 two-week-old rupture rather than a two-day-old rupture 27 1 and you adjust yourself accordingly, if necessary. 2 Q Okay. 3 But we can agree that once you get outside of 4 that two-week time period, I think you've described for 5 us, the repair of that rupture starts to become more 6 difficult. 7 A Yes. 8 Q Okay. 9 Now, Mr. -- was it appropriate for 10 Dr. Stearns when he saw Mr. Ray -- and I think Mr. Ray 11 confirmed this in his deposition; assume for me that he 12 did -- to tell Mr. Ray to -- actually, to tell Mr. Ray 13 that it was important that they treat this as soon as 14 possible? 15 A I'm sorry. Your question? 16 Q My question is: Was it appropriate for 17 Dr. Stearns to tell Mr. Ray that in his first visit when 18 he suspected a distal biceps tendon rupture? 19 A Yes. 20 Q As you follow a distal biceps tendon rupture, 21 is it fair to say that with each passing week, the 22 repair of that rupture, after you get past the two-week 23 mark, becomes -- theoretically at least -- is becoming 24 more and more difficult? 25 A Yes. 28 1 Q We talked about expected limitations 2 associated with a distal biceps tendon rupture repaired 3 along the lines of Mr. Ray at six weeks. 4 Is it also true that those patients, 5 especially in the nondominant hand, tend to have a 30 to 6 40 percent loss of strength in that arm? 7 MR. HIRSHMAN: I'm going to object. I think 8 he indicated he wasn't aware of any difference between 9 dominant hand and nondominant. 10 MR. WILT: The reason I said nondominant -- I 11 wasn't comparing the two because he did say that. The 12 reason I'm pointing that out is because that's Mr. Ray. 13 It's his nondominant arm. 14 MR. HIRSHMAN: It is okay. 15 THE WITNESS: And your question is? 16 BY MR. WILT: 17 Q It was kind of jumbled so we'll try it 18 again. 19 A Yeah. 20 Q The question is -- we talked about the aching 21 and fatigue associated with supination; we talked about 22 the fear factor. 23 But isn't it true objectively that these 24 patients do lose some strength in their bicep or in 25 their arm, upper extremity, following a distal biceps 29 1 tendon repair at six weeks post-injury usually? 2 A Yes. 3 Q Do you have an opinion based upon your review 4 of the medical literature or your experience about how 5 much loss of strength they experience? 6 A It depends on what motion we're talking 7 about. Remember that the biceps does primarily two 8 things: It flexes the elbow and it is not the primary 9 flexor of the elbow; the brachialis is. 10 Q Okay. 11 A So you do not lose a whole heck of a lot of 12 flexion power when you lose your biceps because the 13 brachialis is still intact. The other thing the 14 biceps -- it supinates and it is the primary supinator 15 so you do lose in an unrepaired situation a significant 16 degree of your supination power. 17 Q In this case with Mr. Ray -- and I think in 18 looking through Dr. Klejka's reports, Mr. Ray does have 19 some loss of strength in his arm other than associated 20 with the interosseus nerve. 21 MR. HIRSHMAN: Take a look at that, if you 22 would. 23 THE WITNESS: Yeah. 24 BY MR. WILT: 25 Q If you want to, I'll quicken it up so we can 30 1 all move forward. Just assume for me that Dr. Klejka 2 has put that in his report. Okay? 3 A Okay. 4 Q I'm going to take his deposition soon and 5 let's hope he confirms that. 6 If that is indeed true, I take it you're not 7 critical or you don't attribute that loss of strength to 8 any deviation in the standard of care by Dr. Stearns? 9 A As long as we're not talking about radial 10 nerve innervated muscles. 11 Q Absolutely. 12 A Okay. Then I would not attribute any loss of 13 strength in either elbow flexion or supination strength 14 to his deviation from the standard of care. 15 Q Okay. 16 What journals do you subscribe to? 17 A I subscribe to the JBJS. You know that. You 18 saw that. 19 Q Right. 20 A The Journal of Hand Surgery. I receive the 21 publication from the academy since I'm a fellow of the 22 academy. I also receive the Journal of the American 23 Medical Association because I'm a member of the AMA. 24 There's -- no, that's about it. 25 Q Okay. 31 1 Do you review those journals on a regular 2 basis? 3 A Yes. 4 Q Are they fairly reliable? 5 A Yes. 6 Q How about textbooks? What textbooks do you 7 consider to be generally reliable in the area of 8 orthopedic surgery? 9 A Campbell's, Rockwood and Green. 10 Q These textbooks you've identified for us 11 today? 12 A Yes. Morrey's text on the elbow. That's a 13 little more specific. Every surgical intern owns a 14 Hoppenfeld. 15 I'm trying to think if there's any other big 16 ones. That's about it. 17 Q All right. 18 Can there be anatomical variations in the 19 course of the radial and posterior interosseus nerve 20 from patient to patient? 21 A I think there could be. I've not seen it, 22 but -- 23 Q So I take it you haven't seen the literature 24 documenting that the posterior interosseus nerve, a 25 certain percentage of the time is found to run deep to 32 1 the supinator muscle? 2 A As opposed to through it? 3 Q As opposed to through it. 4 A Okay. 5 If we're going to call that a "variation," 6 yes. There are variations in the posterior interosseus 7 nerve. 8 Q And sometimes it can run superficial? 9 A Yes. 10 Q And have you also seen literature that 11 describes the variation of the posterior interosseus 12 nerve as it courses through the elbow and that it can 13 vary up to two centimeters either way as it goes through 14 the elbow? Have you seen anything on that? 15 A That I've not seen. 16 Q We can agree, though, and I think you were 17 alluding to this earlier and you have it right there in 18 that graft, that when you supinate versus pronate the 19 arm, that can cause the posterior interosseus nerves to 20 literally move a centimeter or two? 21 A Yes. 22 Q And I want to talk for a second about the 23 actual limitations of function associated with a palsy, 24 partial palsy, to the interosseus nerve. 25 Would this -- in Mr. Ray's case, based upon 33 1 the literature you've reviewed, does he have a 2 limitation in the abduction of his wrist? 3 A We generally don't use abduction in the 4 wrist -- that term. 5 Q All right. 6 What I'm talking about is the lateral 7 movement of the wrist. 8 A Ulnar deviation, radial deviation. 9 Q That's fine, then. 10 Any limitations in those? 11 A He could have limitations because the ECU, 12 extensor carpi ulnaris could be affected, which could 13 then affect him with ulnar deviating. I do not think 14 he'd have any problems with radial deviation. 15 Q He has difficulty with extension, but does he 16 have any limitation on flexion? 17 A None. 18 Q Any difficulty in supination would be 19 associated with the injury or the problems with the 20 bicep; correct? 21 A Correct. 22 Q What about pronation? 23 A That would not be affected by the posterior 24 interosseus nerve. 25 Q In your practice could you break it down for 34 1 me as to what percentage of your professional time is 2 spent performing upper extremity operations versus other 3 orthopedic areas of specialty? 4 A All of my surgery is in the upper extremity. 5 Q That's why you did the fellowship. 6 Have you acted as an expert in a 7 medical-malpractice case prior to today? 8 A Yes. 9 Q On how many occasions? 10 A Probably 10. 11 Q And can you break down the percentage of 12 those 10 times that you acted as an expert as far as 13 whether you were testifying on behalf of the defendant 14 doctor or on behalf of the patient plaintiff? 15 A Once for the doctor, nine times for the 16 plaintiff. 17 Q Do you happen to know how Mr. Hirshman got 18 your name as somebody to contact to review this case? 19 A No. 20 Q What are you charging me here today for your 21 time? 22 A $550 an hour. 23 MR. WILT: Off the record. 24 (Discussion off the record) 25 MR. WILT: Back on the record. 35 1 BY MR. WILT: 2 Q In your billing me for this time, just so I 3 know, are you going to be billing me for the two hours 4 that we -- before anybody could get here? 5 A No. I'm billing you -- no. I'm billing you 6 from whenever this gentleman says we started. 7 Q You're awfully gracious. 8 What will usual charges be if you come to the 9 trial of this matter? 10 A To leave the state and testify is $5,000. 11 MR. HIRSHMAN: Are you offering to pay that 12 for me? 13 MR. WILT: Toby, I like you, but I'm not 14 quite that generous. 15 BY MR. WILT: 16 Q And I take it that would include any 17 expenses -- the 5,000 is apart and separate from any 18 expenses in order to bring you to Ohio to testify? 19 A That's correct. 20 Q Do you believe distal biceps tendon repairs 21 should only be performed by hand surgeon fellows? 22 A No. 23 Q And in this case, is there anything about 24 Dr. Stearns's training that would indicate to you that 25 he was not qualified to perform a distal biceps tendon 36 1 repair? 2 A You know, I don't even remember what his 3 training was. I didn't even pay attention. I'm sure 4 that's at the beginning of his deposition. 5 Q Board-certified orthopedic surgeon. 6 A This country? 7 Q Yeah. This country. That's a fair 8 question. 9 A No. No. Not at all. 10 Q All right. 11 Are you going to be expressing any opinions 12 at the trial of this matter about Mr. Ray's ability or 13 inability to perform his prior job as a -- what is 14 exactly his job called? 15 MR. HIRSHMAN: I've heard it described in 16 various ways, but I will tell you right now that we've 17 got other people to talk about that. 18 MR. WILT: Right. I thought you did, but I 19 just wanted to make sure. 20 MR. HIRSHMAN: He hasn't met the gentleman 21 and I don't think it would be appropriate for him to 22 discuss that issue. He's not going to be discussing 23 that issue. 24 MR. WILT: All right. 25 BY MR. WILT: 37 1 Q In orthopedic surgery, can complications 2 occur absent negligence? 3 A Yes. 4 Q How do you as an expert reviewing the care of 5 another physician determine whether a complication is as 6 a result of negligence or is just an unfortunate risk 7 that has occurred associated with the surgery? 8 A I look to see if this is a commonly described 9 complication. If it has -- there's no better way to put 10 it. It's a commonly described something that happens 11 after surgery or is it something extraordinarily rare 12 that shouldn't happen after surgery? 13 Q And in this case, I take it it's your opinion 14 that a -- I think at this point we can all agree this is 15 a permanent neuropraxia to the interosseus nerve -- is, 16 A, not a commonly described injury associated with a 17 distal tendon bicep rupture using a two-incision 18 approach; and, B, because it's not commonly described, 19 it's very -- it would be considered extremely rare. 20 A Yes. 21 Q Any other factors you look to when trying to 22 make that determination regarding complications and 23 whether they're associated with negligence or not? 24 A Well, I'm focusing on this particular case, 25 although in general, if somebody cuts the nerve and 38 1 says, "I cut the nerve," in their operative notes, then 2 it's a no-brainer. 3 Q Right. 4 A But no, dealing with this particular case, 5 that's what I look to. 6 Q Okay. 7 And in this case, since the patient does have 8 still some partial function associated with the 9 posterior interosseus nerve, can we agree that whatever 10 the injury was, it was not likely a through and through, 11 complete laceration of the interosseus nerve? 12 A I would agree with that. 13 Q Do you publicize your services as a medical 14 expert in any medical or legal journals? 15 A No. 16 Q Have you ever been sued for medical 17 malpractice? 18 A Yes. 19 Q On how many occasions? 20 A Two. 21 Q Are any of those still pending? 22 A No. 23 Q Can you tell me just briefly what the 24 plaintiff's allegations were in those cases? 25 A Negligence. 39 1 Like the facts of the case? Just a thumbnail 2 sketch? 3 Q Yes. That's all I need. 4 A Okay. 5 Q You know what? I'll make it simpler for 6 you. In either case, does it involve the repair or 7 treatment of distal biceps tendon? 8 A No. 9 Q Okay. 10 A Want me to keep going or -- 11 Q No. 12 A Okay. 13 Q Have you ever testified as a defendant in 14 either of those cases or did you testify as a defendant 15 in either of those cases? 16 A I was deposed on one and only one. 17 Q Do you recall the caption of that case or who 18 the plaintiff was? 19 A No. 20 Q Was that here in San Diego County? 21 A Yes. 22 Q Do you recall the approximate year that it 23 was filed? 24 A Yeah. It was probably '91. 25 Q That was shortly after you began practicing? 40 1 A Yes. 2 MR. WILT: Off the record. 3 (Discussion off the record) 4 MR. WILT: Back on the record. 5 BY MR. WILT: 6 Q Have we covered all of the opinions that you 7 have formed regarding the care and treatment of my 8 client, Dr. Stearns, for David Ray? 9 A Just give me a minute. 10 Q Okay. 11 (Brief pause) 12 MR. WILT: You know what I want to do, 13 Doctor? While you're looking at that, I'll just mark 14 each of those articles as exhibits. And then if the 15 court reporter can copy them or you can just copy them 16 and send them to the court reporter and he can attach 17 them to the deposition. Okay? 18 THE WITNESS: Yes. 19 BY MR. WILT: 20 Q Back to my original question. 21 A I think the only other thing that I would 22 want to say, and you kind of touched on this real early, 23 was -- back on page 3 or something, what did I think 24 that he actually did? 25 Q Right. 41 1 A Okay. 2 And you asked the question to a reasonable 3 degree of medical probability. I don't know if my 4 theories make any difference. I think I know what he 5 did, but I don't know for a fact. I'm not sure that's 6 germane to this -- 7 Q Here's the way it works. 8 When I ask it to a reasonable degree of 9 medical probability, what I'm saying is more likely than 10 not. 11 A I understand exactly what that means. 12 Q Okay. 13 If you don't know more likely than not, 14 that's fine and you've answered that question. 15 What I'll do is I'll ask you this question. 16 If you have theories that fall below that probability, 17 why don't you go ahead and tell me what those theories 18 are. 19 A Okay. Because I don't want to -- 20 Q Right. 21 A Okay. 22 I don't think it was from excessive 23 traction -- 24 Q Okay. 25 A -- from the anterior approach. 42 1 Let me qualify that. 2 Q Okay. 3 A Because in his deposition, he said he didn't 4 do that. 5 Q Okay. 6 A What I think it was through the extensor 7 approach. And what I worry about when I do this 8 operation, and what you can see could happen in this 9 picture here, is that you're going to split the 10 supinator to get to the bicipital tuberosities of the 11 proximal radius. You're going to retract the supinator 12 out of the way. 13 Q Right. 14 A And you typically put an instrument in there, 15 called a "Homan," to retract that out of the way. 16 That's where I think the problem occurred. 17 Q Okay. 18 A Retracting of the supinator with the pin or 19 the posterior interosseus nerve in it, retracting that 20 in a dorsal direction. I think that's where he got it. 21 Q It actually goes to one of the questions I 22 was asking earlier about the technical difficulties of 23 this procedure. 24 And maybe you don't agree with this, but I've 25 seen somewhere one of the most technically difficult 43 1 parts of this procedure is isolating and working with 2 this radial tuberosity. 3 A I don't want to mislead what I said before. 4 I never said this was an easy operation. 5 Q No, no, no, no, no, no. I understand. 6 I'm just saying of everything that occurs in 7 this operation, that's what I've seen described as one 8 of the more difficult parts of it. 9 A I would agree with that. 10 Q Okay. 11 And I understand your theory about how this 12 might have occurred, but I think what you've told us is 13 that although that's your theory, you can't state that 14 that is indeed how it occurred to a degree of medical 15 probability; is that correct? 16 A That's correct. 17 Q Did you make any notes while reviewing this 18 case? 19 A No. 20 Q Have we now covered all of the opinions that 21 you have regarding the care and treatment rendered by my 22 doctor for David Ray? 23 A Yes. 24 Q If prior to the trial of this matter you 25 should happen to review other materials or form opinions 44 1 in addition to or different from the opinions you've 2 given me today, I would ask that you let Mr. Hirshman 3 know and we can probably explore those further before 4 trial. 5 A That's fine. 6 Q Can we agree that a physician can render care 7 to a patient within the applicable standard of care and 8 the patient still suffer a bad outcome? 9 A Yes. 10 Q Has Mr. Hirshman discussed with you the fact 11 that this trial is scheduled for April 30th and whether 12 or not you will be appearing at or in Ohio for the 13 trial? 14 A That's not been discussed. 15 Q Is there, as you sit here today, any reason 16 that you're aware of as to why, you know, if 17 Mr. Hirshman is willing to pay your expenses to come to 18 Ohio, why you would not be able to appear at the trial 19 of this matter in or around April 30th of 2001? 20 A No. 21 Q Can we agree that in evaluating a patient and 22 whether or not to offer a patient the option of surgical 23 repair, one of the factors to consider is that patient's 24 amount of activity and also if they are kind of a 25 laborer-type person -- 45 1 A Yes. 2 Q -- versus a skinny doctor or physician? 3 A Yes. 4 Q If the nerve happens to run deep to the 5 supinator muscle, would that put it at increased risk 6 for injury during this operative procedure? 7 A I don't think so. The supinator is a really 8 thin muscle. So you're talking about, oh, a couple 9 millimeters of muscle protection whether the nerve is a 10 subsupinator or intrasupinator so I don't believe so. 11 MR. WILT: Okay. All right. 12 I think those are all -- let me see this. 13 Let me attach his CV as -- we'll call that B. 14 (Exhibit B marked) 15 MR. WILT: We'll call the rupture of the 16 distal tendon of the biceps brachii as C. 17 (Exhibit C marked) 18 MR. WILT: We have the textbook chapter 19 here. Pages 100 -- what I'd like to do is let's copy 20 from page 97 through 101, tendon injuries about the 21 elbow. 22 (Exhibit D marked) 23 MR. HIRSHMAN: That's Morrey? 24 THE WITNESS: That's Morrey. 25 MR. WILT: This is Morrey, chapter 30. 46 1 Is this the whole chapter that was something 2 you reviewed, Doctor? 3 THE WITNESS: Actually, yes. Yeah. It's not 4 that long. 5 MR. WILT: All right. Whole chapter, 6 chapter 30, as Exhibit E. 7 (Exhibit E marked) 8 BY MR. WILT: 9 Q Doctor, have you -- are you familiar with 10 Dean Satarionus from University of Pittsburgh? 11 A Say it one more time. 12 Q Dean Satarionus. 13 A No. 14 Q Do you often testify in cases outside the 15 area of medical malpractice? 16 A Yes. 17 Q And about how many times have you given a 18 deposition in cases outside of medical malpractice? 19 A Maybe 130. 20 Q And of those 130 depositions, how many of 21 those were on behalf of the patient plaintiff or on 22 behalf of the defendant? 23 A Oh, there were probably 30 for the patient 24 and 30 for the defendant. 25 Q And what about the other 70? 47 1 A Another 70 I'm deposed as the doc. 2 Q As the treating physician? 3 A Yes. 4 Q Okay. 5 And I wasn't very specific earlier when we 6 were talking about your testimonial history in 7 medical-malpractice cases. 8 You indicated you had acted as an expert on 9 10 occasions, but more specifically, of those 10 10 occasions, how many times did you actually give 11 testimony like you're doing here today? 12 A Twice. 13 Q And on those two occasions, were they on 14 behalf of the plaintiff or the defendant? 15 A Plaintiff. 16 Q Of the 10 -- or actually the nine times -- 17 that you've been approached by a plaintiff to review a 18 medical-malpractice case, how many times -- how many of 19 those times did you tell the plaintiff that they did not 20 have a case or that indeed the doctor did meet the 21 standards of care? 22 A Well, then I didn't answer your question 23 correctly. 24 Q Okay. 25 A I thought your question was how many times 48 1 did I render opinions for the plaintiff. 2 Q Right. 3 A Okay. About nine. 4 I have probably reviewed 30 or 40 that I 5 said, "You don't have a case." 6 Q Okay. 7 A But there's no -- no deposition involved in 8 that. 9 Q All right, Doctor. 10 Again, any other opinions before I conclude 11 this deposition that you have regarding my doctor's care 12 and treatment? 13 A No. 14 MR. WILT: I think that's all I have. 15 Thank you very much. 16 MR. HIRSHMAN: I'll get out of here in plenty 17 of time to catch my flight. 18 MR. WILT: Great. 19 THE REPORTER: Would you like a copy? 20 MR. HIRSHMAN: Yes. 21 (The deposition concluded at 7:55 p.m.) 22 23 * * * 24 25 49 1 DECLARATION UNDER PENALTY OF PERJURY 2 3 I, Mark Mikulics, M.D., do hereby certify 4 under penalty of perjury that I have read the foregoing 5 transcript of my deposition taken April 4, 2001; that I 6 have made such corrections as appear noted herein, in 7 ink, initialed by me; that my testimony as contained 8 herein, as corrected, is true and correct. 9 DATED this _______ day of ________________, 10 20____, at ________________________________, California. 11 12 13 ___________________________________ 14 Mark Mikulics, M.D. 15 16 17 18 19 20 21 22 23 24 25 50 1 REPORTER'S CERTIFICATION 2 3 I, Harry Alan Palter, Certified Shorthand 4 Reporter, in and for the State of California, do hereby 5 certify: 6 7 That the witness named in the foregoing 8 deposition was, before the commencement of the 9 deposition, duly administered an oath in accordance with 10 Code of Civil Procedure Section 2094; that the testimony 11 and proceedings were reported stenographically by me and 12 later transcribed into computer-aided transcription 13 under my direction; that the foregoing is a true record 14 of the testimony and proceedings taken at that time. 15 16 IN WITNESS WHEREOF, I have subscribed my name 17 this 8th day of April, 2001. 18 19 20 21 _______________________________ 22 Harry Alan Palter, CSR No. 7708 23 24 25 51