0001
 1             IN THE COURT OF COMMON PLEAS
 2               OF CUYAHOGA COUNTY, OHIO
 3                       - - - - -
 4   LARRY ZERBIAN, et al.,
 5     Plaintiffs,
 6         vs.           Case No. CV-07-618652
 7   UNIVERSITY HOSPITALS
 8   HEALTH SYSTEM, INC.,
 9   et al.,
10     Defendants.
11                       - - - - -
12        DEPOSITION OF MATTHEW B. PAWLICKI, M.D.
13               MONDAY, OCTOBER 22, 2007
14                       - - - - -
15            Deposition of MATTHEW B. PAWLICKI,
16   M.D., a Defendant herein, called by the
17   Plaintiffs for examination under the statute,
18   taken before me, Cynthia A. Sullivan, a
19   Registered Professional Reporter and Notary
20   Public in and for the State of Ohio, pursuant to
21   notice and stipulations of counsel, at the
22   offices of Moscarino & Treu, The Hanna Building,
23   Suite 630, 1422 Euclid Avenue, Cleveland, Ohio,
24   on the day and date set forth above, at
25   2:00 p.m.
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiffs:
 3     Becker & Mishkind Co., LPA, by
 4     HOWARD D. MISHKIND, ESQ.
 5     Skylight Office Tower
 6     1660 West Second Street
 7     Suite 660
 8     Cleveland, Ohio  44113
 9     (216) 241-2600
10   
11   On behalf of the Defendants:
12     Moscarino & Treu, by
13     JOHN T. BULLOCH, ESQ.
14     630 Hanna Building
15     1422 Euclid Avenue
16     Cleveland, Ohio  44115
17     (216) 621-1000
18   
19                         ----
20   
21   
22   
23   
24   
25   
0003
 1                       - - - - -
 2   (Thereupon, Plaintiff's Deposition Exhibit 1 was
 3        marked for purposes of identification.)
 4                      - - - - -
 5               MATTHEW B. PAWLICKI, M.D., of lawful
 6   age, called for examination, as provided by the
 7   Ohio Rules of Civil Procedure, being by me first
 8   duly sworn, as hereinafter certified, deposed
 9   and said as follows:
10       EXAMINATION OF MATTHEW B. PAWLICKI, M.D.
11   BY MR. MISHKIND:
12         Q.    State your name for the record,
13   please.
14         A.    Matthew Pawlicki.
15         Q.    Dr. Pawlicki, my name is Howard
16   Mishkind, and I represent Larry Zerbian and his
17   wife in connection with a lawsuit that has been
18   filed against you and others.
19               I'm going to be asking you some
20   questions this afternoon concerning your
21   involvement in Mr. Zerbian's care, some
22   background questions about your education, and
23   some questions as it relates to the medical
24   subject matter which is in controversy here
25   today.
0004
 1               If I ask you anything during the
 2   course of the deposition that you do not
 3   understand, will you tell me that you don't
 4   understand the question?
 5         A.    Yes.
 6         Q.    If you answer my question, can I
 7   conclude reasonably that you understood my
 8   question?
 9         A.    Yes.
10         Q.    You understand that because this is
11   sort of a question and answer session, the court
12   reporter taking down the answers, I can't read
13   your mind in terms of whether or not you
14   understood my question, so I want to make
15   certain at the end of the deposition that I've
16   been fair to you in terms of the questions and I
17   haven't cut you off in any regard, and more
18   importantly, that you understood the question
19   before you answered the question; okay?
20         A.    Okay.
21         Q.    The importance of that is I'm going
22   to be relying upon the answers that you give
23   under oath today when this matter proceeds to
24   trial.  Do you understand that?
25         A.    I do.
0005
 1         Q.    With that introduction, tell me if
 2   you have ever had your deposition taken before,
 3   sir.
 4         A.    I have not.
 5         Q.    This is your maiden voyage?
 6         A.    It is.
 7         Q.    As I said a moment ago, it is an
 8   opportunity for me to find out things about you,
 9   your training, your knowledge of Larry Zerbian,
10   your involvement in his care, and matters that
11   may be relevant or may lead to the discovery of
12   admissible evidence at the trial of this case.
13               I will try not to make my questions
14   complicated.  I will even try to segue and let
15   you know where I'm going with the next line of
16   questions so hopefully in years to come you will
17   remember this experience as not being a painful
18   one; okay?
19         A.    Okay.
20               MR. BULLOCH:  He's not guaranteeing
21   that, though.
22         Q.    I am not guaranteeing it, but I will
23   attempt to be as fair as I possibly can.
24               Prior to the deposition I was
25   provided with a CV, and I've had it marked as
0006
 1   Plaintiff's Exhibit 1.  If you would, take a
 2   look at that document and tell me whether that
 3   is in fact a current updated and complete
 4   curriculum vitae for Matthew Bernard Pawlicki.
 5         A.    Yes, with the exception that I've
 6   gotten renewed of my basic life support and
 7   neonatal resuscitation program.
 8         Q.    So under the certificates, if we
 9   were to modify the basic life support and delete
10   the expires February of 2007, when would we
11   indicate that it was renewed approximately?
12         A.    It renewed this past spring.
13         Q.    You were mentioning something.  Did
14   you have a certificate with you here today?
15         A.    They are in my wallet.
16         Q.    You don't need to grab it.  So it
17   was the spring of this year that your basic life
18   support was renewed?
19         A.    Yes.
20         Q.    Then as far as the neonatal
21   resuscitation program, that indicated it expired
22   as of September of 2006?
23         A.    And it was renewed last fall.
24         Q.    September of 2006?
25         A.    I'm not sure if it was September.
0007
 1   It was required as part of my credentialing, so
 2   I'm pretty sure it was close to September of
 3   '06.
 4         Q.    The address at the top of the CV in
 5   Mayfield Heights, is that your home address?
 6         A.    Yes, it is.
 7         Q.    What is your date of birth, sir?
 8         A.    10-14-1975.
 9         Q.    Where did you attend high school?
10         A.    I attended three high schools, two
11   years at Shawnee High School in Lima, Ohio, one
12   year at Hayfield in -- I'm not sure what the
13   town was in Virginia, and then one year at
14   Morris Knolls High School in Morris -- that was
15   probably Denville, D-E-N-V-I-L-L-E, New Jersey.
16         Q.    Can you explain to me why you
17   travelled around?
18         A.    My father was active duty Army.
19         Q.    Where were you born?
20         A.    Manhattan, Kansas.
21         Q.    You attended Wright State University
22   School of Medicine?
23         A.    Yes.
24         Q.    Then it looks like you did your
25   residency program in Denver, Colorado?
0008
 1         A.    Yes.
 2         Q.    While you were doing your residency
 3   program, it looks like you did some work in an
 4   emergency room in Colorado?
 5         A.    Yes.
 6         Q.    What was your position at the
 7   hospital there or with Emergency Associates of
 8   Colorado?
 9         A.    I was essentially a locum tenens
10   urgent care provider.
11         Q.    Was this during your third or fourth
12   year of residency?
13         A.    It was my third and final year.
14         Q.    Were you intending to pursue a
15   career in emergency medicine?
16         A.    No.
17         Q.    Were your plans to practice as a
18   family practice physician?
19         A.    Yes.
20         Q.    Is that what you are doing
21   currently?
22         A.    Yes.
23         Q.    Can you explain to me on your CV why
24   you have Dr. Goddard as a reference?
25         A.    Well, what did I date this?  Well,
0009
 1   since he was my -- he was my partner since
 2   starting with University Primary Care Practices
 3   in August of 2004, so this -- I must have been
 4   using this -- well, I already have it down as my
 5   work experience.
 6               MR. BULLOCH:  Doctor, if you don't
 7   know, you can say you don't know why.  If you
 8   have an idea why you think you named Dr. Goddard
 9   as a reference, then just go ahead and tell him.
10         A.    I think he had been at that time my
11   current partner.
12         Q.    Was Dr. Goddard your senior partner
13   in the firm or in the practice?
14         A.    Senior with respect to time in the
15   practice certainly, but we're all -- we're all
16   employed physicians with University.
17         Q.    I guess what I'm trying to
18   understand, really there's nothing or no hidden
19   agenda behind this, but there are other
20   physicians that are affiliated with University
21   Primary Care Practices; true?
22         A.    True.
23         Q.    Why choose Dr. Goddard under the
24   reference category as opposed to any of the
25   other physicians that you had an opportunity to
0010
 1   work with?
 2         A.    I think my -- I think I had my
 3   closest contact with him.  We shared coverage of
 4   hospital patients, shared nursing home rounds
 5   and patients, so I think he had the most
 6   awareness of my work performance.
 7         Q.    Fair enough.  Would the same thing
 8   apply when you were out in Colorado as to why
 9   you had Dr. Patrick Sankovitz as a reference
10   during your residency?  Was he the one you
11   worked the closest with and had the most contact
12   with?
13         A.    He made the cut by being the
14   residency director.
15         Q.    It's unusual to see references on a
16   CV.  Was there a particular purpose that you
17   have references on your CV?  Was it being
18   submitted to someone for a job or certification
19   that someone needed to have contact people to
20   talk about you?
21         A.    No.  I think I pretty well copied
22   the recommended CV application from the AMA
23   young physicians' web site.
24         Q.    Do you still have contact with
25   Dr. Goddard on a regular basis?
0011
 1         A.    Yes.
 2         Q.    Is he still practicing medicine?
 3         A.    Yes.
 4         Q.    Is he practicing full time to your
 5   knowledge?
 6         A.    No.
 7         Q.    What is your understanding as to how
 8   much time he spends in the active clinical
 9   practice of medicine?
10         A.    Currently, he's down to probably
11   four hours a week in his Chesterland office.
12         Q.    How old is Dr. Goddard?
13         A.    I do not know.
14         Q.    Is he in his 60s?
15         A.    If I could pick a decade, I'd put
16   him in his 40s.
17         Q.    Is there a reason to your knowledge
18   that he has cut back to that number of hours as
19   young as he is?
20         A.    He has taken a position in
21   administration with what used to be called
22   Heather Hill.  Now it is University Hospitals
23   Extended Care campus.
24         Q.    How long ago was that to the best of
25   your knowledge?
0012
 1         A.    I would have to say this summer.
 2   Let me make that last summer.  Boy, I don't
 3   know.  It's been within this last year.
 4         Q.    Are you board certified?
 5         A.    I am.  It's at the very top under
 6   certification.
 7         Q.    The American Board of Family
 8   Practice?
 9         A.    Yes.
10         Q.    Were you successful in becoming
11   board certified on your first attempt?
12         A.    Yes.
13         Q.    Do you still maintain a medical
14   license in Colorado?
15         A.    I do not.
16         Q.    Did you let that expire when you
17   moved and started your practice here in Ohio?
18         A.    I did.
19         Q.    You mentioned that this is your
20   first deposition.  Have you ever been named as a
21   party during residency or since finishing your
22   residency as a defendant in any medical
23   negligence cases?
24         A.    No.
25         Q.    Your CV does not reference any
0013
 1   publications.  Have you written anything either
 2   during medical school, residency, or since
 3   finishing your residency?
 4         A.    That's been published?
 5         Q.    Yes.
 6         A.    No.
 7         Q.    Have you submitted anything for
 8   publication that for whatever reason was not
 9   accepted?
10         A.    No.
11         Q.    Do you have current hospital
12   privileges?
13         A.    Yes.
14         Q.    Where do you have hospital
15   privileges at?
16         A.    At Geauga Medical Center in Chardon,
17   Ohio.
18         Q.    Any other hospitals?
19         A.    I believe I have courtesy
20   in-name-only privileges at UH for referral
21   purposes.
22         Q.    How long have you had privileges at
23   Geauga Medical Center?
24         A.    2004.  I think it took until
25   September of '04 for them to be finalized.
0014
 1         Q.    So if I look at your CV, it appears
 2   to me that you finished your residency in
 3   Colorado, and then shortly after finishing your
 4   residency you perhaps interviewed and then
 5   accepted a position with University Primary Care
 6   Practices; is that a fair statement?
 7         A.    I had interviewed and taken the
 8   position before finishing residency.
 9         Q.    Who did you interview with for that
10   position?
11         A.    Dr. Goddard and Dr. Michael
12   Nochomovitz.
13         Q.    Dr. Goddard, what is his title to
14   your knowledge, or what was his title at
15   University Primary Care Practices?  Was he the
16   director?
17         A.    No.  He really had no title other
18   than family physician and a family practice at
19   Chesterland.
20         Q.    What about Dr. Nochomovitz?  Is it
21   Nochomovitz?
22         A.    I don't know.  I give it a hard O.
23         Q.    What is his position?
24         A.    He's the CEO.
25         Q.    Your practice where you see your
0015
 1   patients is located where?
 2         A.    In Chardon, Ohio.
 3         Q.    Is that the 150 Seventh Avenue?
 4         A.    Yes.
 5         Q.    Was Dr. Goddard's office also at 150
 6   Seventh Avenue?
 7         A.    Can I give you --
 8               MR. BULLOCH:  Let me clarify.  At
 9   what time period?
10         Q.    If you don't understand my
11   question --
12         A.    Which time frame?
13         Q.    During the period from say August of
14   '05 to January of '06.
15         A.    It was at Chesterland.
16         Q.    Specifically, do you know the
17   address in Chesterland?
18         A.    The 8055 Mayfield Road, Suite 17.
19         Q.    Did you have occasion to see
20   patients at that address?
21         A.    For two weeks in August of '04.  He
22   supervised my practice until I had my
23   privileges.
24         Q.    Once you had your privileges, then
25   your practice was exclusively at the Seventh
0016
 1   Avenue address?
 2         A.    My outpatient practice was at
 3   Seventh Avenue, yes.
 4         Q.    Are there other physicians that
 5   practice with you at University Primary Care
 6   Practices in Chardon?
 7         A.    Yes.
 8         Q.    Currently, are they the same
 9   physicians that practiced with you back during
10   the period from August of '04 through January of
11   '06?
12         A.    Yes.  Yes, they are.
13         Q.    Who are they?
14         A.    Janet O'Hara, O-H-A-R-A, and up
15   until August of '07 Ellen Spraggins as a PA.
16         Q.    Spraggins?
17         A.    S-P-R-A-G-G-I-N-S.
18         Q.    She's a physician's assistant did
19   you say?
20         A.    Yes.
21         Q.    She was with you up until when?
22         A.    August of '07.
23         Q.    Do you currently have a physician's
24   assistant?
25         A.    No.
0017
 1         Q.    Is there a reason that you no longer
 2   have a physician's assistant?
 3         A.    We replaced her with a part-time --
 4   I should give her, too, just in the last month
 5   with Simret, S-I-M-R-E-T, Dev-Raman, D-E-V
 6   hyphen R-A-M-A-N, who is a physician working
 7   part time.
 8         Q.    At the address on Mayfield Road in
 9   Chesterland where Dr. Goddard practices, are
10   there other physicians that are affiliated with
11   University Primary Care Practices?
12         A.    Yes.
13         Q.    Who are those physicians currently?
14         A.    Currently --
15               MR. BULLOCH:  If you know.
16         Q.    Let me just say that for all my
17   questions, just so we don't have to go through
18   this, if you don't know something, tell me you
19   don't know.  If you know or have reason to
20   believe that your answer is accurate, let me
21   know.  Simply if you are guessing, tell me that
22   you don't know; okay?
23         A.    Okay.  So currently at Chesterland
24   we have Dr. Goddard, the same Simret Dev-Raman,
25   and Greg Hileman, H-I-L-E-M-A-N.
0018
 1         Q.    Are all the physicians, Dr. O'Hara,
 2   yourself, Dr. Hileman, Dr. Goddard, all family
 3   practice physicians?
 4         A.    We are all except Janet O'Hara is
 5   internal medicine and pediatrics.
 6         Q.    Have you ever applied for privileges
 7   to a hospital and been denied?
 8         A.    No.
 9         Q.    Have you ever had your privileges
10   suspended, revoked, or called into question?
11         A.    No.
12         Q.    As a family practice doctor, you see
13   patients from crib to grave?
14         A.    Yes.
15         Q.    Do you also provide obstetrical
16   practice?
17         A.    I do not.
18         Q.    There are certain family practice
19   doctors that do GYN and obstetrical practice;
20   correct?
21         A.    I believe they exist.
22         Q.    But that's not part of your
23   practice?
24         A.    No.
25         Q.    So if you were to be talking with
0019
 1   other doctors and describing the types of
 2   patients that you see, it would be babies;
 3   correct?
 4         A.    Yes.
 5         Q.    Young children, adolescents, as well
 6   as adults and geriatric patients?
 7         A.    Yes.
 8         Q.    Do you have an area within family
 9   practice that you spend most of your time in
10   terms of your patient population?
11         A.    I don't think I have a majority of
12   any one type of patient.
13               MR. BULLOCH:  Does that include age
14   groups, too?
15         A.    I guess I think if you made the age
16   cutoff low enough, you would eventually hit a
17   point where there would be a median age, and 50
18   percent of my patients would be above 45 or 50
19   years old.  It's closer to 65 than 5.
20         Q.    You don't deliver babies?
21         A.    I don't.
22         Q.    Since finishing your residency, have
23   you delivered any babies?
24         A.    I have not.
25         Q.    You are an employee of University
0020
 1   Primary Care Practices?
 2         A.    I am, and I think they have had a
 3   name change now, so they are University Hospital
 4   Medical Practices.  I apologize, but that's not
 5   an up-to-date item.
 6         Q.    Tell me approximately when
 7   University Primary Care Practices changed to
 8   University Hospital Medical Practices.
 9         A.    I think it was announced last fall,
10   so 2006.
11         Q.    Do you hold any type of an academic
12   position?
13         A.    I am a clinical instructor which I
14   believe is the default.
15         Q.    What do you mean by that?
16         A.    I think I have that by virtue of
17   being employed by University Hospital Medical
18   Practices.
19         Q.    Do you supervise residents?
20         A.    I have.  May I explain?
21         Q.    Go right ahead.
22         A.    I started supervising medical
23   students for Case this past summer, and on
24   occasion I supervise Dr. O'Hara's residents that
25   she's the primary supervisor for, so it's kind
0021
 1   of incidental to Dr. O'Hara that I see
 2   residents.
 3         Q.    Do you do any classroom teaching at
 4   the medical school?
 5         A.    No.
 6         Q.    Have you ever done any classroom
 7   teaching?
 8         A.    No.
 9         Q.    Doctor, you had a chance to answer
10   interrogatories, written questions.
11               MR. BULLOCH:  Just to clarify, I
12   answered the interrogatories with his
13   assistance.
14         Q.    Sure.  You verified that the answers
15   were true to the best of your knowledge by
16   signing that verification; true?
17         A.    Yes.
18         Q.    Did you review the answers before
19   signing the verification to make sure the
20   interrogatories were true and accurate?
21         A.    Yes.
22         Q.    Now, where it says in the
23   interrogatories that your only contact with
24   Larry Zerbian was on January 3, 2006, in
25   Interrogatory 17, that's not accurate; is it?
0022
 1         A.    I believe it is accurate.
 2         Q.    Have you reviewed anything prior to
 3   today's deposition to verify whether or not you
 4   saw Mr. Zerbian at any other time prior to
 5   January 3, 2006?
 6         A.    I did not.  We looked at the note
 7   from the 3rd, the laboratory results, and I did
 8   see the note after.  Well, that was a
 9   Dr. Goddard note that followed mine.
10         Q.    Have you looked at the Geauga
11   records from August of 2005?
12         A.    I have not.  The Geauga Hospital?
13         Q.    Correct.
14         A.    I have not.
15         Q.    Are you aware that you were involved
16   in Mr. Zerbian's care during his hospitalization
17   back in August of 2005?
18         A.    I was not aware, but it's possible.
19         Q.    Tell me, prior to today's
20   deposition, what information have you reviewed
21   to refresh your memory about Mr. Zerbian?  I
22   don't want you to tell me anything about what
23   you've discussed with your attorney, but tell me
24   what you have reviewed to prepare yourself to
25   answer these very simple questions that I'm
0023
 1   asking you so far.
 2               MR. BULLOCH:  Objection.  I think
 3   he's already answered, Howard, but he's told you
 4   he reviewed his notes from January 3rd, 2006.
 5   If there are other things that he was involved
 6   in, you put them in front of him.
 7               MR. MISHKIND:  Well, I appreciate
 8   that, John.  Hopefully, you're not going to be
 9   testifying for him.
10               MR. BULLOCH:  I'm telling you what
11   he already said, Howard.
12               MR. MISHKIND:  I heard what he said
13   before.
14         Q.    But have you reviewed anything else
15   for purposes of the deposition today?
16         A.    Other than those notes, no.
17         Q.    Have you reviewed any medical
18   literature at all?
19         A.    I regularly review medical
20   literature.
21         Q.    What about medical literature
22   dealing with bacterial endocarditis?  Have you
23   reviewed any literature in terms of the criteria
24   of diagnosing and treating bacterial
25   endocarditis?
0024
 1         A.    I have.
 2         Q.    What have you reviewed?
 3         A.    I reviewed the ePocrates Palm Pilot
 4   program.
 5         Q.    It's called ePocrates?
 6         A.    Yes.  Lower case E-P-O-C-R-A-T-E-S.
 7         Q.    That had information on it relevant
 8   to infective or bacterial endocarditis?
 9         A.    It did.
10         Q.    Do you regularly look to ePocrates
11   for information on various subject matters?
12         A.    I would say on occasion.
13         Q.    Did you find the information that
14   you saw on infective or bacterial endocarditis
15   to be reasonably reliable information?
16         A.    The information on ePocrates I don't
17   think is definitive with regard to their
18   diagnosis and capabilities.  It's primarily a
19   database of pharmacologic pharmaceuticals.
20         Q.    What resource do you use in your
21   practice that you consider to be definitive as
22   it relates to the criteria for the diagnosis and
23   treatment of bacterial endocarditis?
24               MR. BULLOCH:  Objection.  You can
25   answer.
0025
 1         A.    I have my textbooks, and I have
 2   up-to-date computer programs through the
 3   university.
 4         Q.    What textbooks do you regularly look
 5   to for reasonably reliable information as it
 6   relates to topics such as the diagnosis and
 7   treatment of bacterial endocarditis?
 8               MR. BULLOCH:  Objection.  You can
 9   answer.
10         Q.    Understand, the objection unless
11   Mr. Bulloch tells you otherwise is just for the
12   court reporter to take down.  You should go
13   ahead and answer unless he tells you otherwise.
14         A.    Okay.  My primary textbook is the
15   Textbook of Family Medicine by Rakel.  R-A-K-E-L
16   is the last name.  I'm not sure what the first
17   name of the author is.
18         Q.    Is that the textbook that you use as
19   your first line of research when it comes to
20   textbook medicine?
21         A.    Yes.
22         Q.    In terms of journals, do you look to
23   UpToDate for the most current information on
24   medical subject matters?
25         A.    Yes.
0026
 1         Q.    Do you consider UpToDate to be a
 2   reasonably reliable reference as it relates to
 3   current science on the topic of bacterial
 4   endocarditis?
 5               MR. BULLOCH:  Objection.
 6         A.    I have found it to be accurate.
 7         Q.    Obviously, if it wasn't accurate,
 8   you wouldn't consider it to be reasonably
 9   reliable; would you?
10         A.    Right, and reasonably reliable.
11         Q.    As far as the Textbook on Family
12   Medicine, is that what you consider to be sort
13   of the Bible of family medicine that you use in
14   your practice?
15               MR. BULLOCH:  Objection.
16         A.    I don't think I would give it that
17   much esteem, but it's a standard textbook.
18         Q.    Do you consider it to be a standard
19   and reasonably reliable text as it relates to
20   the medical subject matters that you encounter
21   in your practice?
22         A.    Yes.
23         Q.    It would have reasonably reliable
24   information as it relates to the diagnosis and
25   treatment of bacterial endocarditis?
0027
 1               MR. BULLOCH:  Objection.
 2         A.    Yes.
 3         Q.    And also a subject such as
 4   differential diagnosis, I presume the Textbook
 5   of Family Medicine would be a reasonably
 6   reliable resource that you use in terms of
 7   arriving at a differential on a patient?
 8               MR. BULLOCH:  Objection.
 9         Q.    Is that a fair statement?
10         A.    Yes.
11         Q.    Are there any other resources that
12   you consider to be sort of top of the line, and
13   I know you could probably give me a whole list
14   of various resources, but one that comes to the
15   forefront whether they be journals or textbooks
16   aside from UpToDate and what you would research
17   on topics such as bacterial endocarditis on
18   UpToDate and the Textbook of Family Medicine,
19   any others?
20         A.    Any others that?
21         Q.    That deal with the topic of
22   bacterial endocarditis.
23         A.    That exist or that I have in my
24   office?
25         Q.    That you reference in your practice
0028
 1   that you deem to be reasonably reliable
 2   resources.
 3         A.    I have a textbook copy of Nelson's
 4   Pediatrics, and there's an internal medicine
 5   textbook.
 6         Q.    Harrison's perhaps?
 7         A.    It's not Harrison's.  Robbins' is
 8   the pathology textbook.  I don't know the name
 9   of my internal medicine textbook.
10         Q.    You are familiar with the Duke
11   criteria on infective endocarditis?
12         A.    I am familiar with them.
13         Q.    In preparing yourself for today's
14   deposition, you said you looked to UpToDate on
15   infective endocarditis?
16         A.    No.  I did not look to UpToDate.  I
17   briefly looked at the ePocrates.
18         Q.    Right.  UpToDate would be one of the
19   resources that you would look to for reasonably
20   reliable information; correct?
21               MR. BULLOCH:  Objection.
22         A.    Yes.
23         Q.    Have you in your practice ever
24   diagnosed a patient with bacterial endocarditis?
25         A.    Since residency?
0029
 1         Q.    Yes.  Let's start with since
 2   completing your residency, so in private
 3   practice.
 4         A.    Okay.  I don't believe so.
 5         Q.    In your residency?
 6         A.    Yes.
 7         Q.    How many patients did you have that
 8   you, yourself, did a differential diagnosis and
 9   then ultimately arrived at the diagnosis of
10   bacterial endocarditis?
11         A.    I would be guessing at no more than
12   two.
13         Q.    What is the difference between
14   subacute bacterial endocarditis and infective
15   endocarditis or bacterial endocarditis?  When
16   one uses the term subacute from a clinical
17   standpoint, what does that mean to you as a
18   practitioner?
19         A.    I don't think there's a distinction
20   between infective endocarditis and subacute
21   bacterial endocarditis, I believe.
22         Q.    Are you familiar with the Working
23   Party of the British Society for Antimicrobial
24   Chemotherapy, the guidelines as it relates to
25   bacterial endocarditis?
0030
 1         A.    No.
 2         Q.    In the patients that you had, and I
 3   know you said it's a guess of maybe two, so not
 4   holding you to it, it might be one, it might be
 5   three, but somewhere in that general range; is
 6   that a fair characterization?
 7         A.    Sure.
 8         Q.    What were the clinical
 9   manifestations that you saw, either the signs or
10   symptoms in those patients that ultimately led
11   to the diagnosis of bacterial endocarditis?
12         A.    I don't recall the details of the
13   cases from four years ago.
14         Q.    Do you remember any of the symptoms
15   at all of the patients?
16         A.    I would be guessing.
17         Q.    In your practice as a family
18   practice doctor with University Hospital
19   Medicine and its predecessor, you have not had
20   occasion to work a patient up for potential
21   bacterial endocarditis; is that a fair
22   statement?
23         A.    Clarify your question.  That the
24   possibility of endocarditis would be on our
25   differential?
0031
 1         Q.    Yes.  Have you had patients that
 2   within your differential you were considering
 3   endocarditis or bacterial endocarditis?
 4         A.    Yes.
 5         Q.    Eventually you did certain tests to
 6   rule it in or rule it out; correct?
 7         A.    Yes.
 8         Q.    What tests do you normally employ to
 9   rule in or to rule out the existence of
10   endocarditis in a patient?
11         A.    With the assistance of infectious
12   disease, I would usually order blood cultures
13   and an echocardiogram.
14         Q.    Would you agree that in managing a
15   patient that has endocarditis that it's a
16   multidisciplinary approach in terms of ruling in
17   or ruling out the existence of endocarditis?
18         A.    Yes.
19         Q.    You understand in multidisciplinary
20   we're talking about infectious disease, perhaps
21   cardiology, as well as perhaps the primary care
22   physician being at the forefront of the workup?
23         A.    Yes.
24         Q.    Fair statement?
25         A.    Yes.
0032
 1         Q.    Can you tell me from your knowledge,
 2   training, and experience, either in residency or
 3   in your medical school training, what the common
 4   clinical symptoms are or signs that one expects
 5   to see in a patient where the differential
 6   includes bacterial endocarditis?
 7         A.    Yes.
 8         Q.    Tell me what those are.
 9         A.    Symptoms or signs?
10         Q.    If you want to break it down into
11   signs and symptoms, sometimes there's an overlap
12   between the two, but whatever is the most
13   comfortable to you in terms of explaining what
14   signs or what symptoms you commonly will see in
15   a patient where the differential includes
16   bacterial endocarditis.
17         A.    So symptoms would include fevers,
18   possibly some chest pain, but it could be night
19   sweats, chills.  Signs would be -- could be an
20   abnormal EKG, heart murmur, objective fever, and
21   I'm sure that's not exhaustive.
22         Q.    Do you independently recall seeing
23   Larry Zerbian as a patient?
24         A.    My recollection is based on review
25   of my notes.
0033
 1         Q.    That would be the January 3, I
 2   think?
 3         A.    January 3rd, 2006.
 4         Q.    2006?
 5         A.    Yes.
 6         Q.    In reviewing that note, are you able
 7   to create a picture in your mind of who this
 8   patient is, or are you entirely relying on that
 9   note as accurately reflecting your memory on
10   this patient?
11         A.    I'm entirely depending on the
12   documentation.
13         Q.    Fair enough.  The reason I ask that
14   is sometimes a physician will see a note, and
15   based upon that note they will either be able to
16   say I remember something about the patient or I
17   remember telling them something or them saying
18   something to me that wasn't recorded in the
19   record.  Do you remember anything independent of
20   that record about your encounter with
21   Mr. Zerbian other than what's reflected in that
22   note?
23         A.    What's reflected in what otherwise
24   might be customary office procedure.
25         Q.    What else would be customary office
0034
 1   procedure that might not be reflected in the
 2   note?
 3         A.    I don't know.
 4               MR. BULLOCH:  You can take a look at
 5   your note whenever you want to, Doctor.
 6         Q.    Obviously, this is not a memory
 7   contest, but if there's something that you said
 8   is customary office practice that wouldn't be
 9   reflected in the note, I'm not sure looking at
10   the note is going to help you.
11         A.    Right.  I mean, I think general
12   protocol of contacting our office if symptoms
13   aren't improving or with any questions.  I
14   generally don't dictate that for every note that
15   I write.
16         Q.    We're going to talk about that note,
17   and I'll give you an opportunity.  I'm going to
18   put it right in front of you and go through it
19   and discuss it with you, but I don't want to get
20   quite there yet.
21         A.    Sure.
22                       - - - - -
23     (Thereupon, Plaintiff's Deposition Exhibit 2
24      was marked for purposes of identification.)
25                       - - - - -
0035
 1         Q.    Doctor, in a moment you're going to
 2   have in front of you Exhibit 2 after your
 3   attorney verifies what that is.  It was attached
 4   to your interrogatory answers, and it reflects
 5   the January 3, 2006, office visit that you
 6   referenced in your interrogatories.  Do you see
 7   that there?
 8         A.    I do.
 9         Q.    Contained in that note there's a
10   reference to a Susan Stanton, S-T-A-N-T-O-N.  Do
11   you know who Susan Stanton is?
12         A.    I do not.
13         Q.    Do you recall, and again, if you
14   don't, tell me you don't, but do you recall
15   whether Mr. Zerbian on that January 3 visit was
16   accompanied by anyone when you saw him?
17         A.    I do not remember.
18         Q.    He may have been, but you just don't
19   remember one way or another; fair statement?
20         A.    Right.  Either way I don't remember.
21         Q.    Tell me what this is that I'm
22   looking at, because obviously until it was
23   provided to me by your attorney, I didn't know
24   what this document represented.
25         A.    So this represents sort of --
0036
 1   everything dated on the left column 1-3-2006 is
 2   sort of a list and a history of the charges,
 3   payment, and outstanding balance from that
 4   visit.  So the first line is the office visit
 5   charge for seeing me, and Susan Stanton paid $20
 6   in a copay.  The next line is QualChoice paid
 7   $54 and wrote off, that's what the WO is, wrote
 8   off $33, and that balanced out entirely.
 9               The next line was the $15 charge for
10   drawing the blood in the office.  Again, there
11   is no copay.  QualChoice paid 6 and wrote off 9.
12   And then lastly the urine dip stick with
13   automatic microanalysis was done in the office,
14   and either it wasn't charged to QualChoice or
15   they just bounced it to her, but apparently
16   Susan Stanton paid $8 of that.
17         Q.    There are some codes in that area.
18   The first one for the office visit is 99214.  Do
19   you know what that code stands for?
20         A.    The code for office visit
21   established level four.
22         Q.    And the 36415 code, is that for
23   routine venipuncture?
24         A.    Yes.
25         Q.    81003, what is that code for?
0037
 1         A.    That's for doing the urine dip stick
 2   which is a manual stick, but then letting -- we
 3   have a little computerized device that actually
 4   analyzes it and prints out the slip.
 5         Q.    We know according to the document
 6   that you saw this patient because the provider
 7   has your initials of MP; true?
 8         A.    Yes.  Right there, yes, that is it.
 9         Q.    Under the practice it has CHR.  What
10   does CHR stand for?
11         A.    CHR stands for Chardon.
12         Q.    If we look above to the next visit
13   which is January 25, under the practice it has
14   CHE, and that stands for what?
15         A.    Chesterland.
16         Q.    You didn't see him in Chesterland;
17   did you?
18         A.    No.  I saw him in Chardon.
19         Q.    The visit before that, November 8th,
20   that would also be Chesterland?
21         A.    Yes.
22         Q.    In both the visit before and the
23   visit after yours, Dr. Goddard saw him according
24   to the record?
25         A.    According to the record, yes.
0038
 1         Q.    The provider being DG; true?
 2         A.    True.  This is billing records.
 3   This wouldn't be in the chart, I believe.
 4         Q.    Do you know why on January 3, 2006,
 5   you saw Mr. Zerbian as opposed to Dr. Goddard?
 6         A.    I do not know for sure.
 7         Q.    Have you talked to Dr. Goddard at
 8   all about Mr. Zerbian?
 9         A.    Not within recent memory.
10         Q.    Have you talked to Dr. Goddard about
11   Mr. Zerbian since this lawsuit was filed?
12         A.    To the extent that there was a
13   lawsuit, but not about his medical details.
14         Q.    Do you recall learning at some point
15   in time after January of 2006 that Mr. Zerbian
16   was diagnosed with bacterial endocarditis?
17         A.    Only when I found out about the
18   lawsuit.
19         Q.    Who was it that provided that
20   information to you?
21         A.    I received was it a 180-day letter
22   or 90-day letter?
23         Q.    180-day.
24         A.    A 180-day letter, and my office
25   manager sort of filled me in on that this was a
0039
 1   patient with bacterial endocarditis.
 2         Q.    The office manager at your office in
 3   Chardon?
 4         A.    No, so the office manager at
 5   Chesterland.
 6         Q.    Who is that office manager?
 7         A.    Elizabeth Easton, E-A-S-T-O-N.
 8         Q.    What did Ms. Easton tell you about
 9   Mr. Zerbian when you received the 180-day letter
10   as best as you can recall?
11         A.    As best as I can recall, I think it
12   was probably that this is a patient of
13   Dr. Goddard's, and I saw him -- the reason I'm
14   getting a letter is that I saw him on occasion
15   covering for Dr. Goddard.
16         Q.    She apparently had some knowledge
17   about the patient's medical condition that
18   permitted her to tell you that he was diagnosed
19   with endocarditis?
20         A.    I think she would have told me, and
21   I probably asked her.
22         Q.    Did you obtain any information from
23   Dr. Goddard personally at that time or at any
24   time after getting the 180-day letter about
25   Mr. Zerbian's endocarditis or what kind of
0040
 1   treatment he had to have for the endocarditis?
 2         A.    No.  By last spring he was hard to
 3   get ahold of.  We didn't do much talking.
 4         Q.    Other than conversations you've had
 5   with your attorney, and again, I don't want you
 6   to tell me anything about those and he's too
 7   good of a lawyer to let you tell me about those
 8   conversations, have you obtained any information
 9   on your own or by talking to other physicians to
10   understand what the nature was of Mr. Zerbian's
11   infection that ultimately led to his
12   endocarditis, what it was and what kind of
13   complications he had from the endocarditis?
14               MR. BULLOCH:  Again, just as a
15   caution, that does not include any conversations
16   you've had with me or with any other attorney.
17   So to the extent that you came up with the
18   conclusion by conversations with any
19   non-attorney or physician, you can answer.
20         A.    The question is whether I've
21   discussed his diagnosis or his subsequent care?
22   I have not.
23         Q.    Do you have any knowledge based upon
24   discussions with anyone other than attorneys
25   representing you, Mr. Bulloch or anyone else
0041
 1   that may be associated with your representation,
 2   as to the treatment that Mr. Zerbian required as
 3   a result of his endocarditis?
 4         A.    I have not.
 5         Q.    Or what area of the heart or the
 6   valve or both were affected by the endocarditis?
 7         A.    I don't know that even now.
 8         Q.    Fair enough.  So other than Ms. or
 9   Mrs. Easton, that would have been the only
10   person that gave you the initial information
11   before you had communications with lawyers?
12         A.    With lawyers, yes.
13         Q.    Are diabetics at higher risk for
14   bloodstream infections than nondiabetic
15   patients?
16         A.    I don't know specifically to
17   bloodstream infections.
18         Q.    Are diabetics at higher risk for
19   bacterial endocarditis than nondiabetic
20   patients?
21         A.    My understanding is that diabetic
22   patients are at higher risk for bacterial
23   infections than nondiabetic patients.
24         Q.    Is that because diabetic patients
25   are what we refer to as immunosuppressed?
0042
 1         A.    Yes.
 2         Q.    In your practice where you have had
 3   within your differential the possibility of
 4   bacterial endocarditis, have you personally
 5   ordered blood cultures as a diagnostic tool to
 6   rule in or rule out the existence of
 7   endocarditis?
 8         A.    Yes.
 9         Q.    What is your understanding as to the
10   standard practice that is to be followed by the
11   physician in performing blood cultures to rule
12   in or to rule out bacterial endocarditis?  What
13   is done?  How are blood cultures ordered, and
14   how do they factor into the ultimate diagnosis?
15               MR. BULLOCH:  We're going to object
16   to the form of the question.  Go ahead, if you
17   can answer.
18         A.    In an outpatient setting, if you
19   were concerned about ruling out bacterial
20   endocarditis, the patient would have to present
21   to a hospital or blood draw station and have two
22   bacterial cultures drawn from separate sites or
23   blood cultures drawn.
24         Q.    Are you aware of whether there is
25   any impact on a patient who has bacterial
0043
 1   endocarditis by starting the patient on a
 2   particular antibiotic and -- strike that.  It
 3   wasn't going to come out the way I wanted it,
 4   and you probably weren't going to understand it.
 5               As a family practice physician, do
 6   you recognize that there are certain risks with
 7   regard to putting a patient on an antibiotic
 8   without having a definitive diagnosis?
 9         A.    Yes.
10         Q.    What are some of the concerns that
11   you have in terms of starting a patient on an
12   oral antibiotic before you know what the
13   bacteria is that has prompted the patient to
14   have signs and symptoms of infection?
15         A.    So the primary risks which always
16   have to be balanced with the benefits of
17   antibiotic therapy include the risk of allergic
18   reaction, anaphylaxis, or possible formation of
19   resistance, and it can interfere with cultures.
20         Q.    What in your understanding is the
21   most common bacteria responsible for
22   endocarditis?
23         A.    The most common, I'm going to admit
24   my ignorance and say that I would be guessing,
25   but if you gave me a multiple choice I could
0044
 1   give you good odds I could get it right.
 2         Q.    Do the boards in terms of the
 3   written part, do you get multiple choices, or do
 4   you have to know what the most common is for the
 5   written part of the boards?
 6         A.    I think my boards are multiple
 7   choice.
 8         Q.    I don't mean that in a comical
 9   manner, but as you sit here right now, you're
10   not familiar with whether Strep viridans is more
11   or less common as a bacteria in terms of the
12   inciting bacteria for endocarditis as opposed to
13   some other?
14         A.    I believe it is a common cause.  I
15   don't think -- I can't say whether it's the
16   majority or the most common cause.
17         Q.    Fair enough.
18               MR. BULLOCH:  Would this be a good
19   time to take a break, Howard?
20               MR. MISHKIND:  I don't know.  Is it?
21               MR. BULLOCH:  Could we take a break?
22               MR. MISHKIND:  Sure.
23                   (Brief recess.)
24                       - - - - -
25    (Thereupon, Plaintiff's Deposition Exhibits 3
0045
 1        through 12 were marked for purposes of
 2                   identification.)
 3                      - - - - -
 4         Q.    Doctor, I want to go through some
 5   records, but I also want to clarify some things
 6   relative to the charts that you brought or that
 7   are here today.  There are two files.  One is a
 8   thinner file.
 9         A.    The BWC.
10         Q.    One has BWC on it, and that stands
11   for what?
12         A.    Bureau of Workers' Comp.
13         Q.    There's a thicker file that has
14   Mr. Zerbian's allergies to iodine, and can you
15   tell me what that says?
16         A.    That looks like sedative with a
17   question mark behind it.  So usually if the
18   patient doesn't know what he is allergic to and
19   we didn't realize that before we started writing
20   sedative.
21         Q.    When you saw Mr. Zerbian on
22   January 3, 2006, did you have any records at all
23   on this patient?  I know you may not remember,
24   but would you likely have had any records?
25         A.    Customarily, I would have been faxed
0046
 1   over maybe his demographic sheet, his past
 2   medical history, medication list, and sometimes
 3   the last office note was faxed over, but the
 4   charts weren't sent back and forth unless the
 5   patient was transferring their care from
 6   Chesterland to Chardon permanently, and then,
 7   yeah.
 8         Q.    Can you tell by looking at the chart
 9   what information was most likely faxed to you
10   when you saw him on January 3, 2006?  Feel free
11   to look at the chart.
12         A.    So customarily this would be the
13   medication list and this would be his past
14   medical history, so these often would come over.
15         Q.    Let me describe that.  It looks like
16   there's two sheets.  What we're going to do
17   eventually with your attorney's permission,
18   because I can tell by looking at the record that
19   I was provided by Dr. Goddard or by the office
20   it's far from complete, so what I'd like to do
21   is get a complete copy of both folders.
22               MR. MISHKIND:  Certainly, John, if
23   you want to photocopy that for me --
24               MR. BULLOCH:  We have no objection,
25   Howard.  Quite frankly, we had the same records
0047
 1   you had until I went out and met with
 2   Dr. Pawlicki, so we're seeing them for the first
 3   time as well.
 4         Q.    But what we're referring to, just
 5   for the court reporter's record, is in the
 6   bigger of the two files there's a sheet that has
 7   chronic problems, operative and invasive
 8   procedures and then summary, and then another
 9   sheet that has chronic medications, acute
10   medications.  You probably would have had these
11   two sheets that would have been what, faxed over
12   to your office?
13         A.    Yes.
14         Q.    You can sit down.
15         A.    Okay.
16         Q.    I appreciate your standing along
17   with me, but don't worry about it.  What else
18   would you probably have had, if anything, when
19   you saw the patient?
20         A.    The most recent progress note for
21   this patient would have been this note from --
22   if they had sent the most recent progress note,
23   it would be this progress note from 11-8-2005.
24         Q.    On 11-8-2005 Dr. Goddard would have
25   seen him; true?
0048
 1         A.    Yes.
 2         Q.    At that time his impression, without
 3   reading the entire thing because the record is
 4   here, but back pain was one of the issues?
 5         A.    Is this just to summarize the page?
 6         Q.    Exactly.
 7         A.    Yes, back pain.
 8         Q.    There was an issue concerning a
 9   possible infected tooth; correct?
10         A.    Yes.
11         Q.    Obviously, it says he was here for
12   follow-up regarding back pain, and there was a
13   physical exam and other information, but this
14   sheet most likely you would have been provided?
15               MR. BULLOCH:  Objection.  I think he
16   said possibly, not most likely.
17         A.    May or may not.
18         Q.    Would that be the normal routine if
19   you're seeing one of Dr. Goddard's patients?
20         A.    If there was adequate time before.
21   Same day appointments oftentimes did not come
22   accompanied with anything faxed over depending
23   on how much time they had to pull the chart and
24   pull the paperwork.
25         Q.    Why on January 3, 2006, did you see
0049
 1   this patient in the Chardon office as opposed to
 2   Mr. Zerbian being seen by Dr. Goddard or by
 3   someone else in Dr. Goddard's office in the
 4   Chesterland office if you know?
 5         A.    I do not know.
 6         Q.    In talking with either the office
 7   manager or perhaps Dr. Goddard at some time
 8   after that visit, did you learn why it was that
 9   you were, for lack of better terminology,
10   pinch-hitting for Dr. Goddard on that date?
11         A.    It was not an uncommon and it still
12   is not an uncommon occurrence to cover for
13   Dr. Goddard's patients when his schedule is
14   booked or if he's out of the office since I
15   started.
16         Q.    While we're looking at the chart
17   here, you may or may not have received the
18   medication and the problem list, and you may or
19   may not have received a copy of the note from
20   Dr. Goddard's November 2005 office visit.  Would
21   that most likely be the extent of the
22   information that would have been sent over to
23   you either at or shortly before the patient
24   arrived to be seen by you?
25         A.    Yes.
0050
 1         Q.    Do you have any recollection of this
 2   appointment being scheduled, whether it was an
 3   emergency appointment or what the circumstances
 4   were surrounding this particular appointment?
 5         A.    I don't recall, but that's available
 6   through our scheduling computer program.
 7         Q.    What would the scheduling program
 8   tell us?
 9         A.    It keeps -- well, it would tell you
10   information about when the appointment was made,
11   so you could tell if it was made an hour before
12   he showed up or a week before he showed up.
13         Q.    I'm going to show you what has been
14   marked as Plaintiff's Exhibit 12, and let me
15   just walk through with you and your attorney --
16               MR. BULLOCH:  Let me take a look at
17   that for a second.
18               MR. MISHKIND:  Sure.
19               MR. BULLOCH:  Just for the record,
20   this contains four documents that appear to be
21   from a January 3rd, 2006, visit and then two
22   documents that appear to be from a January 25th,
23   2006, visit.
24               MR. MISHKIND:  Correct.
25               MR. BULLOCH:  One in which the
0051
 1   patient was seen by Dr. Pawlicki, the first on
 2   January 3rd, 2006, and the second where the
 3   patient was seen by Dr. Goddard; correct?
 4               MR. MISHKIND:  If you had let me
 5   finish my question, that was exactly what I was
 6   about to say, but you did a great job.
 7               MR. BULLOCH:  Sorry, Howard.
 8               MR. MISHKIND:  That's okay.  Not a
 9   problem.
10         Q.    Exhibit 12, so there isn't any
11   confusion, it has a dictated note.  This was a
12   note you would have dictated?
13         A.    It is a note that I dictated.
14         Q.    Also, we have a note that has your
15   name on it and a number of entries on there
16   which is part of Exhibit 12; true?
17         A.    True.
18         Q.    Is everything on the second page of
19   Exhibit 12 that has your name on the top, it
20   says vital signs, is this all in your
21   handwriting before we get to the lab results at
22   the bottom?
23         A.    It is all in my handwriting with the
24   exception of the heading, so this was the name
25   through the chief complaint, and the more
0052
 1   flowery handwriting is from my medical
 2   assistant.
 3               MR. BULLOCH:  For the record, that
 4   ends with blood sugar, 290; correct?
 5               THE WITNESS:  280 -- 290.
 6               MR. BULLOCH:  290 or 280, concerned
 7   with right foot pain?
 8               THE WITNESS:  Yes.
 9         Q.    What Mr. Bulloch just testified to,
10   is that something that was --
11               MR. BULLOCH:  Mr. Bulloch didn't
12   testify.
13         Q.    That Mr. Bulloch stated on the
14   record, was that something that was written by
15   someone other than yourself?
16         A.    Yes.
17         Q.    Right below that there's a line sort
18   of centered.  Does that begin your handwriting?
19         A.    Well, I'm not sure what made the
20   line, but the little bit that -- the little bit
21   of scribble, the over weekend, that's my
22   handwriting immediately below the ampersand.
23         Q.    Over weekend, and everything else
24   below that would be yours; is that a fair
25   statement?
0053
 1         A.    Yes.
 2         Q.    At least from what you have noted
 3   here, the reason that he was there was because
 4   of some right foot pain?
 5         A.    Right foot pain and his blood sugars
 6   being elevated.
 7         Q.    Right above the BS or blood sugar,
 8   can you tell me what that says?
 9         A.    That says discuss.
10         Q.    What does that mean?
11         A.    That's part of the reason for his
12   presentation would be to discuss the blood
13   sugars and the concern about the right foot
14   pain.
15         Q.    As we look at this -- and again,
16   this falls under the category of giving you the
17   opportunity to say, oh, yeah, I remember this --
18   as we look at this and he's there, he's
19   discussing with someone his blood sugar concerns
20   and his right foot pain and then you mark down
21   over the weekend.  Does that prompt you to
22   remember anything about this office visit?
23         A.    No.
24         Q.    Fair enough.  I will stop trying to
25   prompt your memory.  Sometimes things are asked,
0054
 1   and all of a sudden a physician will say I do
 2   remember such and such because you have been
 3   probing so long.  I have not been able to probe
 4   an independent memory so far?
 5         A.    No.
 6               MR. BULLOCH:  That's not to say he
 7   won't have a few at trial.
 8         Q.    After the second page, I have a note
 9   that goes to January 25.  This is part of
10   Exhibit 12.  That is the next office visit which
11   you had nothing to do with; true?
12         A.    True.  Pardon me.
13         Q.    Do you need to take that?
14         A.    I do.
15                   (Brief recess.)
16                    (Record read.)
17         Q.    Just continuing on the exhibit that
18   you have, the next page or the final page is
19   also from -- let's see, what date is that?
20               MR. BULLOCH:  The same date.
21         Q.    It says January 25, '05, but it
22   should actually be '06, I think.  That has to do
23   with Dr. Goddard's visit or Larry Zerbian's
24   visit with Dr. Goddard on January 25, '06, which
25   would not be anything that you had any
0055
 1   involvement with; correct?
 2         A.    Correct.
 3         Q.    We're going to talk about this in a
 4   few minutes.
 5               MR. BULLOCH:  I just want to bring
 6   up one point to you.  I don't think this was in
 7   the records, just so we don't get into the
 8   situation that you might want to call
 9   Dr. Pawlicki back for a deposition.
10               There was one other page that wasn't
11   included in my records, I don't know if it was
12   included in your records or not, from Dr.
13   Pawlicki's visit with Mr. Zerbian dated 1-3-06
14   as well.  I'll point that out to you.  It's a
15   plan of action sheet that appeared in the back
16   of the file as we received it in the original
17   records of Mr. Zerbian.
18               Dr. Pawlicki tells me that would
19   have also been a sheet that would have gone with
20   the other two pages of his notes that you have
21   already identified as Plaintiff's Exhibit 12.
22               MR. MISHKIND:  Okay.  What we can do
23   is photocopy this, and we'll attach it as the
24   fifth page to Exhibit 12, if that's okay.
25               MR. BULLOCH:  I would rather do it
0056
 1   as a third page to Exhibit 12, if you don't
 2   mind, just to make it clear that it's part of
 3   his note, not part of Dr. Goddard's note.
 4               MR. MISHKIND:  Why don't we mark
 5   this as Exhibit 13?
 6               MR. BULLOCH:  Do you want me to do
 7   it now?
 8               MR. MISHKIND:  Let's keep on going
 9   because we're taking too many breaks.
10         Q.    The note which is a pink sheet, the
11   plan of action, is this filled out in your
12   handwriting?
13         A.    It is except for the name and date.
14         Q.    Under labs you ordered -- did you
15   perform a urine dip stick?
16         A.    Yes.  So that's my instructions to
17   perform the urine dip stick.
18         Q.    You ordered certain blood tests?
19         A.    Yes.
20         Q.    What were the blood tests that you
21   ordered?
22         A.    Complete blood count, complete
23   metabolic panel, and then erythrocyte
24   sedimentation rate.
25         Q.    Why did you order those three blood
0057
 1   tests?
 2         A.    All three blood tests and the urine
 3   test were for the workup of the uncontrolled
 4   diabetes.
 5         Q.    Did you have anything else within
 6   your differential on January 3, '06, other than
 7   uncontrolled diabetes?
 8         A.    I have the symptom complaint of
 9   fever, and I don't explicitly mention any
10   differential diagnosis, but these were searching
11   for an infectious cause of the hyperglycemia.
12         Q.    As we look at your note, the
13   dictated note, and it's the first page of
14   Exhibit 12 where it says progress note, would
15   your normal practice be to dictate this at or
16   immediately after the office visit?
17         A.    The customary practice while I was
18   dictating at this time was to dictate at the end
19   of the afternoon, or end of the morning or end
20   of the afternoon for the break, and if the
21   dictation was not done then, by first thing the
22   next morning.
23         Q.    Do you have any reason to believe
24   that the January 3, 2006, office note would have
25   been dictated any later than 24 hours after that
0058
 1   visit?
 2         A.    Not later than 24 hours, and I
 3   documented that it was dictated the next day.
 4         Q.    In your page 2?
 5         A.    On page 2.  It also looks like a
 6   2005, but it was 1-4-06.
 7         Q.    At the very bottom of the second
 8   sheet of Exhibit 12, it says dictated January 4,
 9   and that should be January 4, '06, and then your
10   initials are right there?
11         A.    Yes.
12         Q.    Great.  In the subjective column you
13   have fever, chills, and night sweats that he was
14   complaining of off and on; correct?
15         A.    The fevers he had been complaining
16   of off and on.  I think the chills and night
17   sweats, I don't think I qualified those.
18         Q.    But it does say he is a patient of
19   Dr. Goddard who complains of having off and on
20   fevers, chills, and night sweats?
21         A.    Oh, yeah.  That's verbatim.
22         Q.    Those subjective symptoms would be
23   consistent with the differential that we talked
24   about early on in the deposition of a potential
25   infectious process; correct?
0059
 1               MR. BULLOCH:  Objection.
 2         A.    Those symptoms would be three
 3   subjective elements of a larger picture that
 4   would have to be taken into consideration, the
 5   physical exam, a patient's general appearance,
 6   and before trying -- before concluding that you
 7   had to rule out a bacterial endocarditis.
 8         Q.    You remember an hour and a half ago
 9   I asked you what would be some of the signs and
10   symptoms that you would look for with regard to
11   a differential for bacterial endocarditis.  Do
12   you remember that?
13         A.    Yes.
14         Q.    You remember telling me that, and I
15   can't remember whether it would be signs or
16   symptoms, but I believe you told me that fever,
17   chills, and night sweats would be is it a sign
18   or symptom?
19         A.    It's symptoms.  So, yes, to clarify
20   that, those three would be symptoms of potential
21   bacterial endocarditis, but not all of those --
22   those symptoms are not always bacterial
23   endocarditis.
24         Q.    Sure.  I understand that.  They
25   would be consistent with but not in and of
0060
 1   themselves diagnostic of bacterial endocarditis;
 2   true?
 3         A.    With the possibility of, yes.  So
 4   they would be consistent with the possibility of
 5   a bacterial endocarditis.
 6         Q.    In terms of your assessment and
 7   plan, did you note in your dictation or in your
 8   notes that you had within your differential the
 9   possibility of a bacterial endocarditis on
10   January 3, 2006?
11         A.    So in the body of the dictated note
12   from January 3, 2006, I do not explicitly
13   mention bacterial endocarditis.  The
14   interpretation of the blood work received that
15   was drawn that day was to the point of ruling
16   out signs of infection.
17         Q.    These are the lab results from that
18   date?
19         A.    Yes.  So they were --
20         Q.    This would have been --
21         A.    Drawn January 3rd.
22         Q.    Let me finish my question.  This
23   would have been on January 3, 2006, and you
24   would have received these results when?  Can you
25   tell from the document?  It would have been
0061
 1   collected on January 3.  Can you tell me --
 2         A.    The faxes would have been
 3   received --
 4         Q.    On January 4, 2006?
 5         A.    Yes.
 6         Q.    At approximately 6:21 a.m.?
 7         A.    Yes.
 8         Q.    Then you have a note.  I presume
 9   those are your initials on there?
10         A.    Those are my initials.
11         Q.    What does it say, if you want to
12   just read me what you've written on the labs?
13         A.    So it was the instructions to call
14   back, no sign of infection, will need to recheck
15   urine test at his next visit in one week, and I
16   have initialed it again.
17         Q.    When you say call back, no sign of
18   infection, explain to me what you meant by that.
19         A.    Those were my instructions to my MA
20   who then went on to document that the phone was
21   disconnected and dated that 1-4-06 before she
22   initialed it.
23         Q.    I guess when it says call back, no
24   sign of infection, tell me what this is
25   communicating.
0062
 1         A.    That's communicating -- this is
 2   communicating to my MA to call the patient, let
 3   him know that the blood work did not show -- did
 4   not show -- give me any cause to think that he
 5   had an infection, but that he would need to
 6   recheck his urine test at his next visit in one
 7   week.
 8               Looking for that blood test, the
 9   reason most likely for that is that there wasn't
10   a sign of bacterial infection in the urine but a
11   small amount of blood, so that was to retest the
12   urine in one week.
13         Q.    In your interrogatories -- is there
14   something?
15         A.    Oh, and so the -- I'm sorry, that
16   was in the middle of the page, that the white
17   blood count was normal, there was no left shift,
18   and an ESR reading of 21.
19         Q.    Is that erythrocyte sedimentation
20   rate, is that normal or abnormal?
21         A.    For this patient's age, I do not
22   consider 21 to be abnormal.
23         Q.    For this particular lab, though, it
24   was not within normal limits; true?
25               MR. BULLOCH:  Objection.  You can
0063
 1   answer.
 2         A.    The reference range cited by the
 3   laboratory was 0 to 20.
 4         Q.    There's an H next to it which
 5   indicates that is high; right?
 6         A.    It indicates that it is out of the
 7   range of 0 to 20.
 8         Q.    Which 0 to 20 would be the normal
 9   range, that's why there's an H there, just as
10   the L for the white blood count with the L
11   meaning it was lower than the normal range;
12   correct?
13         A.    Correct.
14               MR. BULLOCH:  Just to clarify, I
15   think you mean red blood cells, Howard, were
16   low.
17               MR. MISHKIND:  I'm sorry.  You're
18   correct.
19         Q.    Now, in your interrogatory answers,
20   you indicated or your attorney indicated and you
21   verified just to avoid being corrected,
22   Dr. Pawlicki unsuccessfully attempted to contact
23   Mr. Zerbian, and his further care was referred
24   to Mr. Zerbian's primary care provider,
25   Dr. Goddard.
0064
 1               Your unsuccessful attempt to contact
 2   him was this note that says phone DC'd or
 3   disconnected?
 4         A.    That was my nurse's attempt or my
 5   MA's attempt, and then the final result of the
 6   culture results received on 1-5-06 that showed
 7   no growth, I had called back intending to
 8   communicate that there was no sign of urinary
 9   tract infection and ask him how his blood sugars
10   were.  We were unable to reach him at his phone
11   number.
12         Q.    That would be 440-626-5198?
13         A.    Yes.  And then my initials followed
14   by the arrow to the initials DG indicating my
15   instructions to my MA to send the records back
16   to Dr. Goddard's office.
17         Q.    If I can paraphrase, you weren't
18   able to communicate these results to the
19   patient, but you passed the information on to
20   Dr. Goddard so that he could pick up the ball
21   and do whatever was necessary thereafter?
22               MR. BULLOCH:  Objection.
23         Q.    Is that correct?
24         A.    Yes, in anticipation of his
25   follow-up appointment which had been scheduled,
0065
 1   I believe.
 2         Q.    Doctor, I'm going to show you what I
 3   have marked as Plaintiff's Exhibit 3.  I'll hand
 4   it to your attorney, but this is a document from
 5   Geauga Hospital for an admission of August 31 to
 6   September 2, 2005, and it's marked as Exhibit 3.
 7               This particular document that you're
 8   looking at is three pages in length, so there's
 9   no question on what is contained in this
10   exhibit.
11               Is it fair to say that according to
12   this document you were the admitting physician
13   for Mr. Zerbian for the admission of August 31,
14   2005, to Geauga Hospital?
15         A.    Yes.
16         Q.    Is it your testimony that you
17   weren't aware of this before today?
18         A.    I was not aware of this until seeing
19   this, the progress notes.  Do we have my admit
20   note?
21         Q.    It's coming up next.
22         A.    Okay.
23         Q.    You see on the third page there's a
24   handwritten note where the assessment and plan
25   has to do with low back spasms and also his
0066
 1   diabetes and increased blood sugar.  Do you see
 2   that?
 3         A.    Yes.
 4         Q.    We can agree, can we not, that you
 5   were involved in his care for this
 6   hospitalization; correct?
 7         A.    Yes, for these three days.
 8         Q.    I'll show you what has been marked
 9   as Plaintiff's Exhibit 4.  While you're looking
10   at that, Exhibit 4 is two pages in length.  You
11   had asked for your admit note, and I know you're
12   reading it, and hopefully you can listen and
13   read at the same time.  Does this appear to be
14   your admission note for Mr. Zerbian?
15         A.    Yes.
16         Q.    Does this at all refresh your
17   recollection relative to having seen Mr. Zerbian
18   during this admission of August 31 to
19   September 2?
20               MR. BULLOCH:  Doctor, feel free to
21   finish reviewing this before you answer any
22   questions.
23               MR. MISHKIND:  Absolutely.
24               MR. BULLOCH:  Off the record.
25             (Discussion off the record.)
0067
 1         Q.    Let me know when you're done
 2   reviewing it.
 3         A.    I am done.
 4         Q.    The primary complaint that brought
 5   him to this admission was back pain; true?
 6         A.    Yes.
 7         Q.    There was a history of him having
 8   worked in the yard yesterday, the 30th, and you
 9   reviewed the various systems, and you had an
10   assessment and plan for his treatment during
11   that admission; fair statement?
12         A.    Yes.
13         Q.    Did you consider during that
14   admission according to the record any type of
15   diskitis or some other spine infection as the
16   cause of his back pain?
17               MR. BULLOCH:  I'm going to object
18   just because Dr. Pawlicki hasn't looked at the
19   entire medical record, so there's a possibility
20   he ordered some tests, Howard, that we're not
21   aware of.  I don't know if he ordered an MRI.
22               If you'd like to look at the entire
23   medical record for this admission, you're
24   entitled to do that, Doctor, before answering
25   any further questions.
0068
 1               MR. MISHKIND:  John, I appreciate
 2   your concern.  We're looking at his admission
 3   note.  I'm going to walk through each and every
 4   page of the record with him because obviously
 5   when I received the interrogatories it said that
 6   he did not see him other than on that one date.
 7   I was somewhat amazed by that.
 8         Q.    I don't see any evidence that
 9   diskitis or some other spine infection was
10   within his differential.  I just want to see
11   whether from your admission note that you see
12   any evidence that you were working him up or
13   considered diskitis or some spine infection as
14   the cause of his back pain.
15               MR. BULLOCH:  In all fairness,
16   Howard, I don't think that just an admission
17   note, number one, an admission note would tell
18   us what he was working up for a seven day
19   hospitalization.  This is a note he did on
20   admission.  You're asking whether he ever
21   considered diskitis during admission.
22               I think the only fair approach to
23   this since Dr. Pawlicki has not seen this record
24   is to provide him enough time to let him go
25   through the Geauga Hospital admission of these
0069
 1   dates and then come back and answer these
 2   questions.
 3               I'm basically instructing you not to
 4   answer any questions about this particular
 5   admission until you have had the opportunity to
 6   look through the medical records.
 7               MR. MISHKIND:  We're here to take
 8   his deposition.  The records were provided.
 9   John, if you want us to suspend the deposition,
10   because I'm not going to sit here while he goes
11   through records that should have been provided
12   to him before the deposition that were provided
13   and that were available, but if you want to take
14   that position, then we'll suspend the
15   deposition, and we'll do it at my convenience at
16   a later point.
17               MR. BULLOCH:  I think we're going to
18   have to, Howard, in all fairness to this doctor.
19   You're asking him specifically about whether or
20   not he even thought about diskitis, and you're
21   only showing him a small part of the records,
22   specifically an admission note.
23               I might not have as much of an
24   objection if he at least had the opportunity to
25   look at the discharge note, if he wrote one, and
0070
 1   any tests he might have ordered including MRIs
 2   or CTs during this particular admission.
 3               MR. MISHKIND:  This doctor under
 4   oath already said he didn't see the patient
 5   before January 3, and we now know that he did,
 6   and why your own client's records were not
 7   available to him -- I don't want to encumber the
 8   record.
 9               In fairness to you, I don't want to
10   encumber the record, but we're never going to
11   finish this with him looking at these records
12   for the very first time and if you're not going
13   to let him answer questions based upon the
14   admission notes whether or not his plan was to
15   work this patient up for any type of diskitis or
16   spine infection.
17               If you want me to go through page by
18   page, fine.  Otherwise, we'll suspend the
19   deposition and bring him back after he's had a
20   chance to review the records you should have.
21               MR. BULLOCH:  Howard, that's what
22   I'm saying.  I think the only expeditious way to
23   do this unfortunately is to allow him to look at
24   this record.  Otherwise, we're just shooting in
25   the dark.  He didn't have the opportunity to see
0071
 1   what other tests that he had.  You're asking him
 2   what he considered at the time.  Obviously, he
 3   doesn't remember this admission.
 4               MR. MISHKIND:  We'll suspend the
 5   deposition for obvious reasons at this
 6   particular point, and we'll continue it after
 7   you've provided him with a copy of the Geauga
 8   records, and we'll reschedule.
 9               MR. BULLOCH:  Howard, I apologize
10   for the inconvenience, but I think it's the only
11   way to do this.  We'll make him available on as
12   many dates as we can possibly find that he's
13   available.
14                       - - - - -
15          (Deposition adjourned at 4:10 p.m.)
16                (Signature not waived.)
17                      - - - - -
18   
19   
20   
21   
22   
23   
24   
25   
0072
 1                       AFFIDAVIT
 2               I have read the foregoing transcript
 3   from page 1 through 71 and note the following
 4   corrections:
 5               PAGE      LINE   REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17                           _____________________
18                          MATTHEW B. PAWLICKI, M.D.
19               Subscribed and sworn to before me
20   this _______ day of _______, 2007.
21   
22                            _____________________
23                                Notary Public
24   My commission expires ______________.
25   
0073
 1                      CERTIFICATE
 2   
 3   State of Ohio,     )
 4                      )  SS:
 5   County of Cuyahoga. )
 6   
 7   
 8   
 9     I, Cynthia A. Sullivan, a Notary Public within
     and for the State of Ohio, duly commissioned and
10   qualified, do hereby certify that the within
     named MATTHEW B. PAWLICKI, M.D. was by me first
11   duly sworn to testify to the truth, the whole
     truth and nothing but the truth in the cause
12   aforesaid; that the testimony as above set forth
     was by me reduced to stenotypy, afterwards
13   transcribed, and that the foregoing is a true
     and correct transcription of the testimony.
14   
       I do further certify that this deposition was
15   taken at the time and place specified and was
     completed without adjournment; that I am not a
16   relative or attorney for either party or
     otherwise interested in the event of this
17   action.  I am not, nor is the court reporting
     firm with which I am affiliated, under a
18   contract as defined in Civil Rule 28(D).
19     IN WITNESS WHEREOF, I have hereunto set my
     hand and affixed my seal of office at Cleveland,
20   Ohio, on this 29th day of October 2007.
21   
22   
23   
           Cynthia A. Sullivan, Notary Public
24           Within and for the State of Ohio
25   My commission expires October 17, 2011.
0074
 1   
 2       EXAMINATION OF MATTHEW PAWLICKI, M.D.
 3   
 4    BY MR. MISHKIND:                       3
 5   
 6                  EXHIBITS            
 7         
       Plaintiff's Deposition Exhibit 1 was   3
 8     marked
       Plaintiff's Deposition Exhibit 2 was   34
 9     marked
       Plaintiff's Exhibits 3 through 12      44
10     were marked
11   
12   
13      (Exhibits 5 - 11 with H. Mishkind)
14   
15   
16   
17   
18   
19   
20   
21   
22   
23