0001
 1              IN THE COURT OF COMMON PLEAS
 2                OF CUYAHOGA COUNTY, OHIO
 3                      - - - - -
 4   JAMES BERRY,
 5         Plaintiff,
 6               vs.            Case No. CV-06-590509
 7   HELEN S. HAN, M.D., 
 8   et al.,          
 9         Defendants.      
10                       - - - - -
11           DEPOSITION OF BARRY PESKIN, M.D.
12                FRIDAY, APRIL 20, 2007
13                       - - - - -
14               Deposition of BARRY PESKIN, M.D., a  
15   Defendant herein, called by the Plaintiff for 
16   examination under the statute, taken before me, 
17   Cynthia A. Sullivan, a Registered Professional 
18   Reporter and Notary Public in and for the State 
19   of Ohio, pursuant to notice and stipulations of 
20   counsel, at the offices of the Cleveland Clinic 
21   Beachwood Family Health Center, 26900 Cedar 
22   Road, Beachwood, Ohio, on the day and date set 
23   forth above, at 4:10 p.m.
24                       - - - - -
25   
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiff:
           Becker & Mishkind Co., LPA, by
 3         JESSICA PERSE, ESQ.
           Skylight Office Tower
 4         1660 West Second Street
           Suite 660
 5         Cleveland, Ohio  44113
           (216) 241-2600
 6   
     On behalf of the Defendants Dr. Han, University 
 7   Primary Care Practices, Inc., and Sherilynn 
     Sage:
 8         Bonezzi, Switzer, Murphy, Polito 
              & Hupp, by
 9         BRET C. PERRY, ESQ.
           Suite 1950
10         1300 East Ninth Street
           Cleveland, Ohio  44114
11         (216) 875-2767
12   On behalf of the Defendants Dr. Barry Peskin and 
     Cleveland Clinic Ob/Gyn Specialties:
13         Roetzel & Andress, by
           BEVERLY A. SANDACZ, ESQ.
14         1375 East Ninth Street
           One Cleveland Center - Ninth Floor
15         Cleveland, Ohio  44114 
           (216) 615-4834
16   
     On behalf of the Defendant Dr. John Thompson:
17         Reminger & Reminger, by
           DAVID H. KRAUSE, ESQ.
18         1400 Midland Building
           101 Prospect Avenue West
19         Cleveland, Ohio  44115
           (216) 687-1311
20         
                           ----
21   
22   
23   
24   
25   
0003
 1          BARRY PESKIN, M.D., of lawful age, called 
 2   for examination, as provided by the Ohio Rules 
 3   of Civil Procedure, being by me first duly 
 4   sworn, as hereinafter certified, deposed and 
 5   said as follows:
 6           EXAMINATION OF BARRY PESKIN, M.D.
 7   BY MS. PERSE:
 8         Q.    Good afternoon, Dr. Peskin.  I'll 
 9   introduce myself formally for the record.  I'm 
10   Jessica Perse, and I'm the attorney representing 
11   the plaintiff in this matter. 
12               Have you ever had your deposition 
13   taken before?
14         A.    I have.
15         Q.    Even though you've had your 
16   deposition taken before, I just want to review a 
17   couple of ground rules before we begin.
18         A.    No problem.
19         Q.    I'm sure your attorney has reviewed 
20   some of these rules as well.  I want to make 
21   sure that you and I are on the same page from 
22   start to finish.  I want to make sure that you 
23   understand that my intent is to make sure that 
24   you are not confused by any of my questions and 
25   you answer only after you are clear what the 
0004
 1   question is; okay?
 2         A.    No problem.
 3         Q.    My questions aren't always that 
 4   clear, so bear with me.  If at any time you 
 5   don't understand a question, tell me, and I'll 
 6   repeat it or clarify it.
 7         A.    Okay. 
 8         Q.    Answer all the questions verbally 
 9   and not with a nod of the head and not a shake 
10   of the head.  This is important for the court 
11   reporter to be able to record an answer.
12         A.    Okay. 
13         Q.    Wait until I'm done with the 
14   question before you start to answer; okay?
15         A.    Okay. 
16         Q.    I'll try to do my best to wait until 
17   you're done answering all of my questions before 
18   I start with another one.
19         A.    Okay. 
20         Q.    It is important that you make sure 
21   that you understand each and every question 
22   because I'm going to rely on these answers that 
23   you give today in deposition when this case goes 
24   to trial.  Do you understand that?
25         A.    I do.
0005
 1         Q.    How about if you state your name for 
 2   the record.
 3         A.    Barry Peskin.
 4         Q.    Do you want to spell the last name?
 5         A.    P-E-S-K-I-N.
 6         Q.    Can you give us your address for the 
 7   record?
 8               MS. SANDACZ:  Home or professional? 
 9               MS. PERSE:  Let's go with the 
10   business.
11         A.    26900 Cedar Road, Suite 200 South, 
12   Beachwood, 44122.
13         Q.    How long has that been your business 
14   address?
15         A.    Approximately six-and-a-half, seven 
16   years, six-and-a-half years.
17         Q.    So mid 2001?
18         A.    No.  End of 1999 to beginning of 
19   2000.  Maybe April of 2000 I think we moved in, 
20   but I'm not certain.
21         Q.    I have a copy of what your attorney 
22   produced a while back in terms of your CV in my 
23   file.  I'm going to hand this to you.  I'm going 
24   to want it marked as an exhibit, but if you can, 
25   review that and make sure it's current.
0006
 1         A.    It's not completely correct.  The 
 2   current title may not be correct.  I think it 
 3   includes now the Cleveland Clinic Medical 
 4   School; but otherwise, that's probably not 
 5   relevant.  It's probably correct.
 6                       - - - - -
 7          (Thereupon, Plaintiff's Deposition
 8           Exhibit 1 was marked for purposes
 9                  of identification.)
10                       - - - - -
11         Q.    You mentioned the current title of 
12   Cleveland Clinic Medical School.  Do you have a 
13   teaching position at the Clinic's medical 
14   school?
15         A.    Other than I teach the residents and 
16   medical students that may come through my 
17   surgical procedures.  I'm full-time Cleveland 
18   Clinic faculty.
19         Q.    Your surgical procedures, where are 
20   they done?
21         A.    Hillcrest Hospital and here at this 
22   Cleveland Clinic satellite.
23         Q.    The Beachwood Family Health Center?
24         A.    Yes.
25         Q.    Are you an employee of any 
0007
 1   corporation?
 2         A.    No.  The Cleveland Clinic, if that's 
 3   a corporation, yes, but I don't know if it's a 
 4   corporation, the Cleveland Clinic.
 5         Q.    When did you become an employee of 
 6   the Cleveland Clinic?
 7         A.    I think it's probably November of 
 8   '99, but I'm not 100 percent certain.  It could 
 9   have been October, but around November of '99, I 
10   think.  I can get you the exact dates if you 
11   need.
12         Q.    Before that were you --
13         A.    University Hospital, University 
14   Ob/Gyn.
15         Q.    Do you have a current state license?
16         A.    I do.
17         Q.    That's for the state of Ohio?
18         A.    Correct.
19         Q.    Do you have any other licensure in 
20   any other state?  I think I noticed Florida.
21         A.    Florida, Arizona.
22         Q.    Arizona is new?
23         A.    New.  It's not on there.
24         Q.    Florida, is that an active license?
25         A.    Correct.
0008
 1         Q.    When did you get that license?
 2         A.    The date may be in there.  I'm not 
 3   really certain.
 4         Q.    It's not there. 
 5         A.    Probably in about '94 or '92, 
 6   something like that.  I can look for that and 
 7   find it if you need it.
 8         Q.    But it's the early '90s?
 9         A.    Early '90s.  Arizona, 2006.
10         Q.    Do you practice or have you had any 
11   practice activities in Florida?
12         A.    No.
13         Q.    Any practice activities in Arizona?
14         A.    No.
15         Q.    Why is it that you got the Arizona 
16   license?
17               MS. SANDACZ:  Objection.  Go ahead.
18         A.    Warm weather, options for the 
19   future.
20         Q.    I think we're all a little bit 
21   jealous at that thought, although today is a 
22   nice day, but if you caught us maybe last week.  
23   Is there any restriction on your license to 
24   practice medicine?
25         A.    No.
0009
 1               MS. SANDACZ:  Objection.  Go ahead.
 2         Q.    You mentioned before that you have 
 3   had your deposition taken before. 
 4         A.    Correct.
 5         Q.    On how many occasions?
 6         A.    Probably three.
 7         Q.    Have you done any trial testimony?
 8         A.    In a court? 
 9         Q.    In a courtroom. 
10         A.    No.
11         Q.    The three depositions, let's talk 
12   about those a little bit.  Were you a party to 
13   the litigation?
14               MS. SANDACZ:  Objection.  Go ahead.
15         Q.    Were you a plaintiff or defendant?
16               MS. SANDACZ:  Same objection.
17         A.    Defendant.  
18               THE WITNESS:  Is that what I am now?
19               MS. SANDACZ:  (Indicating.)
20         A.    I'm a defendant, correct.
21         Q.    On all three occasions?
22               MS. SANDACZ:  Objection.  Go ahead.
23         A.    All three occasions I was named in 
24   the lawsuit, correct.
25         Q.    Those three depositions, do you 
0010
 1   recall the subject matter of the litigation?
 2               MS. SANDACZ:  Objection.
 3         Q.    We can go through.  Let's talk about 
 4   the first one and what year that was. 
 5               MS. SANDACZ:  Objection.  Go ahead.
 6         A.    It was probably about 1994, and it 
 7   was a midwife delivery, and I was so-called 
 8   supervisor, and it was a broken nose.  The baby 
 9   had a broken nose. 
10               The second was a hypertensive case, 
11   and I was named in it, but not --
12         Q.    Go ahead.
13         A.    But not -- I don't think I ended up 
14   in the final part of it, but I went through a 
15   deposition there.
16         Q.    In approximately what time frame?
17         A.    What year? 
18         Q.    What year, yes.
19               MS. SANDACZ:  Objection.  Go ahead.
20         A.    Again, I'm not certain, but probably 
21   about '95, '96.
22         Q.    Was that for obstetrical 
23   hypertension?
24         A.    Obstetrical hypertension.
25         Q.    Was that the management of labor and 
0011
 1   delivery?
 2               MS. SANDACZ:  Objection.
 3         A.    No.
 4         Q.    And the last deposition?
 5               MS. SANDACZ:  Objection.  Go ahead.
 6         A.    Also a hypertensive case and also 
 7   midwife management.  I think it was about 2003, 
 8   I think.  Then there's another deposition which 
 9   is an HIV case, and that's about 2006.
10         Q.    Is that matter pending presently?
11         A.    Correct.
12         Q.    You mentioned that the '95 
13   deposition, that case has been resolved?
14         A.    Correct.
15         Q.    Without any settlement?
16               MS. SANDACZ:  Objection.  Go ahead.
17               MS. PERSE:  If you want to have a 
18   continuing line of objection, that would be fine 
19   with me.
20         A.    Which was the '95?  I don't 
21   remember.
22         Q.    Hypertensive obstetrical care.
23         A.    That was settled.  It never went to 
24   court.
25         Q.    '94, the midwife delivery?
0012
 1         A.    Settled, didn't go to court.
 2         Q.    The 2003?
 3         A.    Settled, didn't go to court.
 4               MS. SANDACZ:  I think she's talking 
 5   about the 2006.
 6         Q.    No, the 2003.  The 2006 is pending 
 7   if I'm following this correctly.
 8         A.    Correct.
 9         Q.    Have you been a party to any other 
10   lawsuits?
11               MS. SANDACZ:  Objection.  Go ahead.
12         A.    Not that I can remember.
13         Q.    By that I mean have you been sued, 
14   not necessarily given your deposition, but have 
15   you been named as a party?
16         A.    Because we covered the residents at 
17   University Hospital, my name was often on 
18   resident cases because I had to be on that day, 
19   but I never, ever -- I can't remember giving 
20   deposition for any of them, and I have no 
21   recollection of what they were or how many there 
22   were.
23         Q.    Was the disposition of any of the 
24   cases in favor of the plaintiffs?
25         A.    No idea.
0013
 1         Q.    With respect to the lawsuits that we 
 2   discussed, specifically the ones that you 
 3   provided deposition and suits you may have been 
 4   named in but you can't remember the specifics 
 5   of, are any of those claims, do they deal with 
 6   anything related to the subject matter of what 
 7   we're dealing with today?
 8         A.    Not that I can recollect, but I 
 9   don't think so.
10         Q.    By that I mean the management, 
11   specifically the management of a patient with 
12   regards to breast cancer.
13         A.    Not that I can recollect.  I don't 
14   think so. 
15         Q.    Have you ever served as an expert 
16   witness in a medical negligence action?
17         A.    No.
18         Q.    Have you ever reviewed a case for 
19   medical-legal purposes?
20         A.    No.
21         Q.    Just a couple more things in terms 
22   of your background.  Your medical school 
23   training or education, that was completed at 
24   Hillbrow Hospital?
25         A.    Medical school was completed at 
0014
 1   University of Witwatersrand.
 2         Q.    I'm sorry?
 3         A.    It was at the university.  The 
 4   Hillbrow Hospital was internship and first year 
 5   residency.
 6         Q.    On your CV under education, we're 
 7   talking the same thing, the Bachelor of 
 8   Medicine, Bachelor of Surgery 1984?
 9         A.    Correct, the University of 
10   Witwatersrand.
11         Q.    You say that so fluently.  I could 
12   never even try that.  When did you come to the 
13   States?
14         A.    1987, June of '87.
15         Q.    I see you did some of your 
16   postgraduate training.  Let's start with your 
17   internship.
18         A.    Internship at Hillbrow Hospital, 
19   house officer at Hillbrow Hospital, went to 
20   London and worked there as a junior resident.
21         Q.    Can you give me a year for that?  
22   I'm just trying to cross-reference.
23         A.    Hillbrow Hospital would have been 
24   '85 and the first six months of '86.  London 
25   would have been the last six months of '86.  
0015
 1   Canada, the general practitioner, the first six 
 2   months or so of '87, and then Cleveland June of 
 3   '87.
 4         Q.    So you completed your obstetrical 
 5   and gynecology residency in Cleveland, Ohio?
 6         A.    Correct.
 7         Q.    Just reviewing here, you completed a 
 8   full four years of Ob/Gyn residency?
 9         A.    Correct.
10         Q.    Your chief residency year was from 
11   1990 to 1991?
12         A.    Correct.
13         Q.    Have you done any fellowships 
14   subsequent to residency?
15         A.    No.
16         Q.    With respect to board certification?
17         A.    Obstetrics and gynecology.
18         Q.    That was in 1993; is that correct?
19         A.    Probably.
20         Q.    I'm just trying to expedite.  
21   Sometimes those years run together, so if you 
22   ever need to reference this, that's fine.  Now, 
23   the board certification, is that a written exam?
24         A.    Both, written and oral.
25         Q.    Do you recall --
0016
 1         A.    The written was probably '92, and 
 2   then the oral might have been '93.
 3         Q.    Did you pass the written boards on 
 4   the first attempt?
 5         A.    I did.
 6         Q.    And the oral boards on the first 
 7   attempt?
 8         A.    I did.
 9         Q.    Recertification, what is your status 
10   with regards to recertification?
11         A.    I recertify every year.
12         Q.    Is it an ongoing recertification?
13         A.    Ongoing, correct.
14         Q.    You haven't done any additional 
15   board certification beyond Ob/Gyn?
16         A.    Correct.
17         Q.    Are you a member of any professional 
18   organizations?
19         A.    American College, American Society 
20   of Reproductive Medicine.  I think that's it at 
21   the moment.  It varies.
22         Q.    On your CV you have Ohio Medical 
23   Association listed.
24         A.    I probably haven't been a member for 
25   a few years.  Cleveland Ob/Gyn, haven't been to 
0017
 1   meetings for a few years.  American Society of 
 2   Reproductive Medicine I am.  North American 
 3   Menopause Society I haven't been for a few 
 4   years, and the American College ongoing.
 5         Q.    When did you become a member of the 
 6   American College?
 7         A.    Probably in about '92.
 8         Q.    We touched briefly on your teaching 
 9   experience presently with regards to the 
10   Cleveland Clinic.
11         A.    Correct.
12         Q.    Have you been actively involved with 
13   any other medical school?
14         A.    No.  For the last seven years, no.
15         Q.    Prior to that were you involved?
16         A.    Case Western.
17         Q.    University Hospitals?
18         A.    Correct.
19         Q.    During your residency and chief 
20   residency, the four years at Mt. Sinai?
21         A.    Correct.
22         Q.    Those years were inclusive of 1987 
23   to 1991?
24         A.    Correct.
25         Q.    Did you maintain any employment 
0018
 1   other than your residency?
 2         A.    I was a, what do they call it, house 
 3   officer at Euclid General probably in '91.  It 
 4   was probably during my chief years, if I 
 5   recollect.
 6         Q.    Anything else during that time?
 7         A.    Preterm -- no, no, no, not during 
 8   that time, no.
 9         Q.    So then after 1991 let's review your 
10   employment history or your work history.  Can 
11   you review that for me?
12         A.    '91 until we joined the Clinic which 
13   was probably November of '99, I think, I was 
14   Cleveland Ob/Gyn -- sorry, University Ob/Gyn, 
15   and for a short time I worked on Saturday 
16   mornings at Preterm.  I can't remember the 
17   years.  It was probably in the early '90s.  And 
18   part of the practice was also an organization or 
19   a research facility called Rapid Medical 
20   Research, but it was part of the group, and I 
21   did research for them.
22         Q.    That was part of the practice with 
23   University Ob/Gyn?
24         A.    Correct.
25         Q.    Would it be fair to say that the 
0019
 1   Rapid Medical Research employment ended when 
 2   the --
 3         A.    (Indicating.)  When I joined the 
 4   Clinic.
 5         Q.    Thank you.  You nodded your head so 
 6   you meant yes?
 7         A.    Correct.
 8         Q.    You finished my statement and then 
 9   nodded.
10         A.    Correct.
11         Q.    It makes her job more difficult.  We 
12   may feel like we're communicating, but then 
13   we'll read it later, and it won't make any 
14   sense. 
15               Other than your employment with 
16   University Ob/Gyn and the Cleveland Clinic, any 
17   other employment during those years?
18         A.    Not at all.  It's enough.
19         Q.    Tell me what hospital privileges you 
20   maintain at present.
21         A.    Cleveland Clinic privileges 
22   including this Beachwood facility and Hillcrest 
23   and downtown, but I never go down there.  So the 
24   main campus, but I never go down there.
25         Q.    Tell me a little bit about your 
0020
 1   practice.  Are you in a group practice?
 2         A.    Correct.
 3         Q.    Are you all considered employees of 
 4   the Cleveland Clinic?
 5         A.    Correct.
 6         Q.    Is there anybody in your practice 
 7   setting that you would consider your director or 
 8   boss?
 9         A.    James Goldfarb.
10         Q.    Is he employed by the Clinic?
11         A.    You'd have to ask him, but I would 
12   imagine so.
13         Q.    I'll probably get the name wrong, 
14   but are you at all an employee of the Cleveland 
15   Clinic --
16               MS. SANDACZ:  Specialty.
17         Q.    -- Specialty LLC?
18         A.    I have no idea.  Is that what our 
19   group is?
20         Q.    That's the name of the group. 
21               MS. SANDACZ:  I think I indicated to 
22   you, Jessica, that is not an actual entity 
23   because the physicians are employed by the 
24   Cleveland Clinic.
25               MS. PERSE:  I'm just trying to 
0021
 1   clarify because the letterhead --
 2               MS. SANDACZ:  Yes.  I was just 
 3   trying to show him what that is so you could 
 4   see.
 5               MS. PERSE:  -- identifies this 
 6   corporation, and I'm trying to get a general 
 7   idea of the specifics of that.  There's a letter 
 8   in there.
 9         A.    Cleveland Ob/Gyn Specialties is our 
10   group, but it's part of the Cleveland Clinic.
11         Q.    To your knowledge it's not an 
12   independent corporation?
13         A.    Not at all.
14               MS. SANDACZ:  I can tell you I don't 
15   believe it's an entity, a corporate entity.
16               THE WITNESS:  It's not.  It's the 
17   Cleveland Clinic.
18         Q.    Can you list for me the other 
19   members of your group?
20         A.    James Goldfarb, Cynthia Austin, 
21   Hanna Lisbona, Julian Peskin, Kenny Rao, Tara 
22   McElroy, Robert Kiwi.  I think that's it.
23         Q.    Good for you.  Do you respectively 
24   cross-cover each other?
25         A.    We do.
0022
 1         Q.    Is that for call that you 
 2   cross-cover each other?
 3         A.    For everything.
 4         Q.    Tell me a little bit about your call 
 5   schedule. 
 6         A.    For me I have two call schedules.  I 
 7   have the practice call schedule, and that may be 
 8   one in seven, one in eight, something like that, 
 9   and I also cover -- I'm part of the in vitro 
10   unit as well, and that's about one in four.
11         Q.    Let's talk a little bit about the in 
12   vitro unit.  Tell me what that practice consists 
13   of.
14         A.    There's four physicians; Austin, 
15   Goldfarb, Lisbona, and myself.  There's 
16   approximately 40 people; nurses, embryologists, 
17   andrologists, operating room nurses, and then 
18   administrative staff.
19         Q.    What type of care is rendered 
20   through the in vitro clinic?  Is that the right 
21   term, in vitro clinic?
22         A.    That's good.  It will do.  The whole 
23   spectrum of infertility from conservative 
24   therapy all the way through in vitro.
25         Q.    Is that considered like the 
0023
 1   specialty of reproductive endocrinology?
 2         A.    Correct.
 3         Q.    Are you board certified in 
 4   reproductive endocrinology?
 5         A.    No.
 6         Q.    But you manage infertility patients?
 7         A.    Correct.
 8         Q.    Forgive me, you mentioned the other 
 9   call schedule for the general practice of 
10   Ob/Gyn; is that fair?
11         A.    Correct.
12         Q.    Which doctors cover that?
13         A.    Kiwi, McElroy, Rao, Julian Peskin, 
14   myself, Lisbona; I think that's it.
15         Q.    You consider yourself an 
16   obstetrician; true?
17         A.    Correct.
18         Q.    You also consider yourself a 
19   gynecologist?
20         A.    Correct.
21         Q.    I just want to be sure that I 
22   understand.  Your practice covers reproductive 
23   endocrinology?
24         A.    Correct.
25         Q.    Obstetrics?
0024
 1         A.    Correct.
 2         Q.    And gynecology?
 3         A.    Correct.
 4         Q.    Tell me what a typical day is like 
 5   for you. 
 6         A.    The days are very variable.  I can 
 7   tell you Monday morning I see patients, both 
 8   obstetrics, gynecology, and infertility.  Monday 
 9   afternoons I do mainly outpatient surgery.  
10   Tuesdays I see patients, Tuesday mornings and 
11   Tuesday afternoons. 
12               Wednesdays I cover Hillcrest 
13   Hospital for the practice and do obstetrics and 
14   major gynecological procedures.  Thursdays I see 
15   patients all day.  Fridays I cover the in vitro 
16   unit.  Then weekends, one in four weekends I 
17   cover the in vitro unit and then call on one of 
18   those days at times during the month, one of the 
19   weekends.
20         Q.    So how many days a month would you 
21   say you take call for the general practice?
22         A.    Four to five, maybe even five to 
23   six, but about five give or take a day.
24         Q.    The in vitro practice would be one 
25   in four weekends?
0025
 1         A.    Correct.
 2         Q.    When does your day start?  Let's 
 3   start with patients.  It starts when the first 
 4   phone call comes in, I'm sure.
 5         A.    My patients start at 8:00 a.m.
 6         Q.    How long do you see patients?  When 
 7   is your last patient seen for the day?
 8         A.    My last one scheduled is probably 
 9   4:30.
10         Q.    How many patients do you see in a 
11   day?
12         A.    It varies, 20 to 50.
13         Q.    On a typical office day you would 
14   see more likely 20 or more likely 50?
15         A.    More likely 40 to 50.
16         Q.    Then did I catch you correctly to 
17   say Wednesday is your surgery day?
18         A.    Correct.
19         Q.    How many surgeries do you do per 
20   day?
21         A.    It's very variable.  Nothing to 
22   three.
23         Q.    Would they all be considered majors?
24         A.    At Hillcrest, I generally do only 
25   majors at Hillcrest.
0026
 1         Q.    What do you consider a major 
 2   gynecologic procedure?
 3         A.    Generally, laparotomies, vaginal 
 4   hysterectomies.
 5         Q.    The abdominal hysterectomy?
 6         A.    Correct.
 7         Q.    What about deliveries?  How many 
 8   deliveries a month do you do?
 9         A.    It varies, but the average is 
10   probably 20, 16 to 20.
11         Q.    Per month?
12         A.    Per month.
13         Q.    How many of those are surgical 
14   deliveries, C-sections?
15         A.    I have no idea.
16         Q.    Per year how many C-sections would 
17   you do?
18         A.    I don't have a clue.
19         Q.    Obviously, you can't schedule 
20   deliveries, so it would be fair to say that the 
21   deliveries happen in between times between 
22   Monday through Friday, Saturday and Sunday?
23         A.    Correct.
24         Q.    Do you cover your own deliveries?
25         A.    I try to.
0027
 1         Q.    When you take the four to five days 
 2   of general practice call, do you take that call 
 3   in-house or do you take that call from home?
 4         A.    From home.
 5         Q.    Are you responsible to cover the OB 
 6   unit for a specific period of time per month as 
 7   in-house?
 8         A.    Not at all.
 9         Q.    How much of your practice would you 
10   consider surgery based?
11         A.    Probably 30 percent.
12         Q.    And office based practice?
13         A.    Oh, sorry.  I didn't understand.  
14   You mean time doing surgery?
15         Q.    Yes. 
16         A.    Time doing surgery, 5 percent.
17         Q.    Then the 95 percent would be office 
18   based?
19         A.    Correct.
20         Q.    Of that office based practice, how 
21   many of those patients would be obstetrical 
22   patients?
23         A.    Probably 70 percent of that.  
24   30 percent would be GYN and infertility.
25         Q.    Do you do daily hospital rounds?
0028
 1         A.    Do I do hospital rounds, yes.  Do I 
 2   do them daily, no.
 3         Q.    Do you do hospital rounds only on 
 4   Wednesday?  Did I hear you say that?
 5         A.    I always do hospital rounds on 
 6   Wednesdays.  I sometimes see my patients at 
 7   other times if I have time to go in, but there's 
 8   always someone from the group that sees the 
 9   patients every day.  That's what the person on 
10   call does is they round on everyone in the 
11   hospital.
12         Q.    So you're guaranteed to make rounds 
13   once a week?
14         A.    Correct.
15         Q.    Have you reviewed any material, if 
16   any, for preparation for this deposition?
17         A.    No, nothing at all other than I 
18   looked through this chart.
19               MS. SANDACZ:  Just so the record is 
20   clear, he's looking at the office chart for 
21   Mrs. Rhonda Berry.
22         Q.    Thank you.  Do you own texts in the 
23   area of Ob/Gyn?
24         A.    Do I own?
25         Q.    Textbooks.
0029
 1         A.    I have textbooks, correct.
 2         Q.    Do you know what textbooks you own?
 3         A.    Not offhand.  I have a range of them 
 4   in the office.  I can get you all of the names 
 5   if you want.
 6         Q.    Any specific peer-reviewed journals 
 7   in the area of medicine or Ob/Gyn that you 
 8   subscribe to?
 9         A.    I get the American Society of 
10   Reproductive journals, and I get the ACOG Green 
11   Journal.
12         Q.    Do you get any other publications 
13   from ACOG?
14         A.    Not that I subscribe to, no.  Things 
15   arrive, but I don't necessarily look at 
16   everything, and I don't know what they are.  
17   They are not always ACOG.  I get lots of 
18   paperwork, but I specifically get the Green 
19   Journal and the infertility journal.
20         Q.    We talked a little bit about your 
21   recertification.  How does that take place?
22         A.    Journal articles done on a yearly 
23   basis for continued recertification.
24         Q.    The journals are provided to you 
25   from what organization?
0030
 1         A.    From the American College.
 2         Q.    From ACOG?
 3         A.    American Board.
 4         Q.    Board of --
 5         A.    Board of Ob/Gyn.
 6         Q.    Are you a member of the American 
 7   Board of Ob/Gyn?
 8         A.    Correct.
 9         Q.    And that's distinguished --
10         A.    That's separate from -- I think it's 
11   probably separate from, I'm not certain, from 
12   ACOG.  But I think that's the organization that 
13   provides the licensure.
14         Q.    Thank you.  So on a regular basis 
15   you receive these journal articles provided by 
16   the American Board of Ob/Gyn?
17         A.    Correct.
18         Q.    Are you required to read those 
19   journal articles?
20         A.    Correct, and answer questions based 
21   on that, and that's submitted back to the 
22   American Board.
23         Q.    How long have you been recertifying 
24   in that fashion?
25         A.    If I recollect, the first ten years 
0031
 1   I didn't have to recertify -- from my first 
 2   certification until probably 2000, I had 
 3   ten-year certification, and then there were 
 4   different ways to recertify, and I opted to do 
 5   the yearly certification because I read the 
 6   journal articles anyway.
 7         Q.    Those journal articles, do you find 
 8   those helpful in the practice of obstetrics and 
 9   gynecology?
10         A.    Some of it is helpful.  You know, 
11   it's an educational source.
12         Q.    Do you ever find yourself relying on 
13   the information in those journal articles when 
14   rendering care to your patients?
15         A.    I don't know what you mean by 
16   relying on.
17         Q.    Do you ever find that you've learned 
18   something from the journal articles that you 
19   might apply in the care of your patients?
20         A.    Offhand I'm not certain.  I mean, I 
21   read the articles, but it's what I -- I mean, I 
22   use the articles in terms of education.  I don't 
23   know if I necessarily change what I do based on 
24   what's in every article.
25         Q.    Can you tell me what text you would 
0032
 1   generally consider to be a good source of 
 2   information on current topics in the area of 
 3   Ob/Gyn?
 4         A.    I don't -- what do you mean by text?
 5         Q.    A textbook that you might resource.
 6         A.    I don't use any text, and at this 
 7   point the textbooks that I own are probably far 
 8   out of date, so I don't use any textbooks.
 9         Q.    Are there journals that you 
10   generally consider to be good sources of 
11   information on current topics in the area of 
12   Ob/Gyn?
13         A.    I read the American Journal and the 
14   American Reproductive Medicine Journals.
15         Q.    Do you consider any specific 
16   textbooks to be reasonably reliable references?
17               MS. SANDACZ:  Textbooks you asked?
18               MS. PERSE:  Yes.
19         A.    I don't look at any textbooks 
20   necessarily at this point.
21         Q.    Do you consider any journals 
22   specifically to be reasonably reliable 
23   references, the Green Journal, for example?
24         A.    I use them all as an educational 
25   source.
0033
 1         Q.    If you had an occasion to use them 
 2   in the management of your patients, you would 
 3   use them as a resource?
 4         A.    Depending on what you mean by 
 5   resource because I would use -- if I needed to 
 6   look at something specifically, I would do a 
 7   literature search and use whatever journal 
 8   articles I think are relevant whether they come 
 9   from these journals or any other journals.  So 
10   basically if I need to know something or look it 
11   up, I would use a Medline search on the subject.  
12   It's not only these journal articles that I 
13   read.
14         Q.    If you used a Medline search, would 
15   you look at the credentials of the journal 
16   itself in terms of its credibility?
17         A.    No.  I would read the article and 
18   then decide for myself if it's educational.
19         Q.    Do you consider any journals, books, 
20   or book chapters, that's a lot of things, to be 
21   reasonably reliable on the topics that are 
22   relevant to this lawsuit as you understand it?
23               MS. SANDACZ:  I'm just going to 
24   object because I'm not sure I understand all the 
25   issues in the case.  So to the extent that you 
0034
 1   can answer that, go ahead, Doctor.
 2         A.    To be honest, I'm not even certain 
 3   what the case is about.  So to answer that 
 4   question, I use all the articles for all the 
 5   fields, for everything that I do.  I read all 
 6   the articles on the whole spectrum because I do 
 7   the whole spectrum of Ob/Gyn, and I use all the 
 8   articles as sources of information, if that's 
 9   what you're asking.
10         Q.    Again, I'm just trying to identify 
11   if you would deem any journal, textbook, or book 
12   chapter as authoritative on the issues that are 
13   relevant to this lawsuit.
14               MS. SANDACZ:  Same objection.  Go 
15   ahead.
16         A.    No, not at all.  I don't think I've 
17   read any articles relating to this, if this was 
18   to deal with this woman specifically, that I can 
19   recollect that I have read in relation to this.  
20   But I read the whole spectrum of articles, and I 
21   then use it as education, but nothing more than 
22   that.
23         Q.    I just want to make a record of the 
24   fact that if you determine some literature to be 
25   reliable in the future as the facts become more 
0035
 1   clear to you, if you will be relying on any 
 2   literature to support your opinions that you 
 3   hold in this case, that I be advised of that 
 4   literature well in advance of trial so that I 
 5   may either redepose you or at least get an 
 6   opportunity to review this before trial.
 7         A.    No problem.
 8         Q.    Dr. Peskin, can we agree that 
 9   Mrs. Berry was a patient of yours for several 
10   years?
11         A.    Correct.
12         Q.    Do you know when Mrs. Berry became a 
13   patient of yours?
14         A.    The first time I saw her would have 
15   been December the 4th, 2001.
16         Q.    To answer that question you opened 
17   up your office chart; is that true?
18         A.    Correct.
19         Q.    Do you have any independent 
20   recollection of Mrs. Berry at that time in 2001?
21         A.    Not at all.
22         Q.    In 2001 why did you begin to take 
23   care of Mrs. Berry?
24         A.    She came in for an infertility 
25   consultation.
0036
 1         Q.    Was that here at the in vitro 
 2   clinic, or was that in another office setting?
 3         A.    Well, the in vitro office is part of 
 4   the office setting.  It would have been in my 
 5   consult office itself because it's all the same 
 6   office.  It's one big office.
 7         Q.    One big office here at the Beachwood 
 8   Family Health Center?
 9         A.    Correct.  It would be here at the 
10   Beachwood Family Health Center.
11         Q.    Is there another office proper here 
12   in the building?
13         A.    For us it's one big office.
14         Q.    So you would see your obstetrical 
15   patients here?
16         A.    Correct.
17         Q.    You would see your gynecologic 
18   patients here, and you would see your 
19   infertility patients here?
20         A.    By here you mean in this office?
21         Q.    Office or suite.
22               MS. SANDACZ:  There's two doors.
23         A.    There's two doors.  I would have 
24   seen her at Suite 200 South.
25         Q.    We are in?
0037
 1         A.    220 South.  It's the same office, 
 2   just separate doors depending on why the people 
 3   were coming in and where they were in their 
 4   care.  We don't want the patients who are going 
 5   through in vitro or infertility sitting in the 
 6   same office as the pregnant patients, so there's 
 7   two separate door.
 8         Q.    There's two separate waiting rooms 
 9   then?
10         A.    Two separate waiting rooms.
11         Q.    Correct me if I'm wrong, is it the 
12   waiting rooms are separate but the hallways 
13   would merge, or is it two separate offices?
14         A.    The hallways merge.
15         Q.    So from the back hallway here, 
16   forgive me for being --
17         A.    We could walk straight into my 
18   office.
19         Q.    And it's one office?
20         A.    One office.
21         Q.    What is entailed in the initial 
22   evaluation of an infertility patient in general?
23         A.    It's extremely variable depending on 
24   what they have done in the past.  In this case 
25   it was a consultation about what her options 
0038
 1   were and based on her history what her options 
 2   would be.  That's the initial consultation, and 
 3   based on that there were recommendations that I 
 4   would have outlined in the plan.  It was just a 
 5   consultation.
 6         Q.    Were you aware of Mrs. Berry having 
 7   another obstetrician or gynecologist other than 
 8   you?
 9         A.    I was not aware of anybody else, no.
10         Q.    Did you see Mrs. Berry as a 
11   consultation or as a new patient; do you know?
12         A.    As an infertility consultation.  
13   Infertility consultations have a specific set of 
14   paperwork placed in the chart.
15         Q.    The paperwork you're referring to 
16   would be what is in Mrs. Berry's record?
17         A.    Correct.
18         Q.    That initial evaluation, you have 
19   your records opened to that; correct?
20         A.    The front page of the records; 
21   correct.
22         Q.    How many pages is that?
23               MR. KRAUSE:  That is the initial 
24   visit?
25               MS. PERSE:  This is the initial 
0039
 1   infertility visit.  I am talking about the 
 2   initial visit.  Thank you.
 3         A.    It's five pages.
 4         Q.    Sorry.  Mine are kind of out of 
 5   order.  Those five pages cover what would be 
 6   evaluated in an initial evaluation of an 
 7   infertility patient?
 8         A.    Those five pages cover some of the 
 9   questions that I ask in the consultation, in 
10   that initial consultation, correct.
11         Q.    Are there any specific protocols 
12   that you are aware of that are in place as to 
13   what is required in that initial evaluation?
14         A.    Not at all.
15         Q.    Tell me in general, not with respect 
16   to Mrs. Berry, but what is entailed in an 
17   initial evaluation of an infertility patient.
18         A.    We can go through what's in front of 
19   me.  I would always ask the age of the patient, 
20   the parity, how long she's been trying, past 
21   surgical history, past medical history, 
22   allergies, medications, if they smoke. 
23               If the husband is present, I'd 
24   always ask the husband the question.  But if the 
25   husband is not present I'd ask the wife if 
0040
 1   there's anything significant in his history. 
 2               Then I would ask her some 
 3   gynecologic questions in terms of menstrual 
 4   bleeding, infections, things like the sexual 
 5   history, medications that they take.  If they 
 6   have had any previous testing, I would mark it 
 7   down.  And based on that I would come to at 
 8   least some idea of what may be underlying the 
 9   infertility and outline a plan with the patient 
10   at that point.
11         Q.    Did Mrs. Berry have any previous 
12   testing, or did the couple have any previous 
13   testing?
14         A.    She had done an ovulation predictor 
15   herself, and my notes says she was unsure if she 
16   had a color change.  That's an assessment of 
17   ovulation.  The husband had a previous semen 
18   analysis with Dr. Tony Thomas at the Clinic.
19         Q.    I'm just specifically referring to 
20   the entry about the details of previous tests.
21         A.    Correct.
22         Q.    That's on page 3 of the infertility 
23   record?
24         A.    Page 3 tells about the semen 
25   analysis and the ovulation predictor, and 
0041
 1   page 4, this is what I use to see if they have 
 2   had two other tests that we would offer, if she 
 3   has had that done.
 4         Q.    Those two other tests on page 4?
 5         A.    Postcoital test and 
 6   hysterosalpingogram, a PCT and an HSG.
 7         Q.    Now, with regards to the details 
 8   under the heading of details of previous tests, 
 9   under male on page 3 of the infertility 
10   record --
11         A.    Correct.
12         Q.    -- your response was that there was 
13   a semen analysis performed?
14         A.    Correct.  11-2 he had a semen 
15   analysis.  The volume was 3.5 cc's which is 
16   normal.  The count was very low, 2.2 million.  
17   Motility was 55 percent which is normal, and we 
18   look at something called morphology, and that 
19   was too little to assess, morphology.
20         Q.    Under the heading of other --
21         A.    Correct.
22         Q.    -- that area is left blank.  Why is 
23   that?
24         A.    Well, if they had had other testing.  
25   If the male had other testing, whether it was 
0042
 1   cystic fibrosis because he had no sperm or 
 2   ultrasound because of a varicocele, I would have 
 3   marked it there.
 4         Q.    There's a box for yes, under yes 
 5   that there was other testing, and no, there was 
 6   no other testing.  Do you have any notations on 
 7   the record with regard to any other testing?
 8         A.    Not here.
 9         Q.    So what does that mean to you?
10         A.    In my notes it's specific that he 
11   wasn't there.  I would have asked her if he had 
12   any other testing with Dr. Thomas, but I haven't 
13   made a notation, so presumably she either didn't 
14   know or I didn't think whatever he had done was 
15   relevant.
16         Q.    But you didn't record anything 
17   there?
18         A.    Correct.
19         Q.    And then under female?
20         A.    Correct.
21         Q.    There, again, is a no column and a 
22   yes column?
23         A.    Correct.
24         Q.    Again, I'm referring to page 3 of 
25   the infertility record.  Can you tell me what 
0043
 1   BBT is?
 2         A.    Basal body temperature charts, one 
 3   of the ways of assessing for ovulation.
 4         Q.    Did you record whether there was --
 5         A.    She had never done it.  I recorded 
 6   she had never done it.  I tend to modify what I 
 7   ask based on the history, if I think it's 
 8   relevant or not.
 9         Q.    So you thought that basal body 
10   temperatures was a relevant question in the 
11   workup of an infertility patient?
12         A.    Correct.
13         Q.    In that case you documented the 
14   response was, no, she did not record basal body 
15   temperatures; correct?
16         A.    Correct.  And what I always do then 
17   is I ask them the basal body temperatures chart, 
18   ovulation predictor, and endometrial biopsy 
19   which is also a way we assess ovulation, and I 
20   always ask them if they have had any other 
21   testing including thyroid, prolactin, DHEAS.
22         Q.    Moving down on the record here, you 
23   have under the ovulation predictor an entry and 
24   a question mark after that, and that's your 
25   writing that says unsure?
0044
 1         A.    Correct.
 2         Q.    Did you make a notation yes or no 
 3   whether she did that, whether she did an 
 4   ovulation predictor?
 5         A.    I did.
 6         Q.    What was your entry?
 7         A.    It's a plus sign, yes.
 8         Q.    So by reading that, even though that 
 9   was for six years ago, you can tell that Rhonda 
10   Berry did do an ovulation predictor?
11         A.    Correct.
12         Q.    Prior to your infertility workup?
13         A.    Correct.
14         Q.    Moving down to endometrial biopsy, 
15   was there a notation there?
16         A.    That she's never had it done.
17         Q.    Is there a negative sign?
18         A.    Correct.
19         Q.    Is that a negative or a check?
20         A.    Either.
21         Q.    But it's a notation confirming that 
22   that question was asked, and you knew that she 
23   did not have an endometrial biopsy?
24         A.    Correct.
25         Q.    With regards to the blood test, you 
0045
 1   gave me a list of what you would normally 
 2   evaluate in a patient in an infertility workup?
 3         A.    Correct.
 4         Q.    In the yes or no columns for serum 
 5   progesterone, prolactin, DHEAS, testosterone, 
 6   and other do you have any other notations?
 7         A.    I have none in those.  But just the 
 8   way I have written it out, I would have asked 
 9   her that, and when I put a notation on both 
10   sides implies to me that she's unsure if she has 
11   had her thyroid tested.  But I would have asked 
12   her all of the relevant blood tests including 
13   all four of those.
14         Q.    That would be?
15         A.    Progesterone, thyroid, prolactin, 
16   DHEAS, and testosterone because they affect 
17   reproductive function.  But when I make a 
18   notation on both sides, for me it means the 
19   patient is uncertain whether she had her thyroid 
20   tested.
21         Q.    Do you know based on your review of 
22   this record the serum progesterone, prolactin, 
23   DHEAS, testosterone, whether those were tested?
24         A.    She would have said no.  I would 
25   have marked if she had had it done.
0046
 1         Q.    That's your practice; correct?
 2         A.    100 percent of the time.  I do the 
 3   same thing every time.
 4         Q.    I guess what I'm trying to figure 
 5   out is why you'd have a notation with regards to 
 6   the thyroid function test but not with regards 
 7   to the serum progesterone, prolactin, DHEAS, and 
 8   testosterone?
 9         A.    I'm not sure why I didn't mark it 
10   down because I would have asked because it 
11   affects ovulation.
12         Q.    All of those would be a necessary 
13   part of the infertility workup; true?
14         A.    No, not necessarily.  A lot of the 
15   infertility evaluation is based on history.  So, 
16   no, I wouldn't necessarily have done DHEAS or 
17   testosterone if I didn't think it was necessary.  
18   I just would have asked if she had them done.
19         Q.    Now, in the management of an 
20   infertility patient, are there any protocols in 
21   place?  I'm sorry.  Does this involve the use of 
22   medications?  The workup and treatment of 
23   infertility, does that involve the use of 
24   medications?
25         A.    It may.
0047
 1         Q.    Can you tell me what sorts of 
 2   medications?
 3         A.    Fertility drugs, Clomid, injectable  
 4   fertility drugs, Lupron, antibiotics, steroids, 
 5   progesterone, hormones, estrogen.
 6         Q.    Anything else?  You've given me 
 7   quite a comprehensive list.
 8         A.    Yes.  It's an extensive list 
 9   depending on what was underlying the 
10   infertility.
11         Q.    I'm going to want to mark this 
12   five-page document, pages 1 through 5, as 
13   Exhibit 2.
14                       - - - - -
15          (Thereupon, Plaintiff's Deposition
16           Exhibit 2 was marked for purposes
17                  of identification.)
18                       - - - - -
19         Q.    If at any time you need to take a 
20   break, by all means, let me know.
21         A.    I'm fine.
22         Q.    Now, I guess we'll work with this 
23   infertility record for a little bit longer.  I'm 
24   going to ask you a couple more questions.  At 
25   the time of that visit, did you meet Mr. Berry?
0048
 1         A.    No.
 2         Q.    How about if we start with page 1.  
 3   I'm going to ask you to read your entries on the 
 4   record.  Identify the record.  I see that it's 
 5   page 1, and there's a heading on the top.
 6         A.    This is an infertility record.  I 
 7   would have circled no because the husband wasn't 
 8   present.  What I wrote was 33 years old, 
 9   married, G zero, P zero, trying for eight 
10   months.  Past surgical history was a breast 
11   lump.  Past medical history no.  Allergies no.  
12   Medications no.  No smoking. 
13               I then marked primary infertility, 
14   and then underneath that I would have asked her 
15   about her husband.  He was 30, good health, no 
16   medications, no children, no surgeries, and no 
17   previous children.
18         Q.    You may have told me this, but I'm a 
19   little bit behind you.  Did you read the entry 
20   on the left-hand side next to male?
21         A.    Correct.
22         Q.    Can you read that for me again?
23         A.    30 years old, good health, 
24   medications nil, P zero, G zero, past surgical 
25   history nil.
0049
 1         Q.    So from this record you were aware 
 2   that Mrs. Berry had a past history of a breast 
 3   lump; is that true?
 4         A.    Correct.
 5         Q.    Is there any notation as to which 
 6   breast was involved?
 7         A.    No.
 8         Q.    Is that an important piece of 
 9   history in an infertility patient?
10         A.    I think everything is important.  I 
11   would have just asked her her surgical history.  
12   I would have, and I really don't remember what I 
13   -- well, I don't remember the patient, but I may 
14   have asked her something about it, and by me not 
15   notating anything else, I would know that she 
16   had no further therapy after that.
17         Q.    The other thing I'd like you to 
18   answer, at the heading on this infertility 
19   record it is University Ob/Gyn Specialties, 
20   Inc.?
21         A.    It's probably the paperwork from 
22   University.  The paperwork may not have changed 
23   by then, but I think this is probably a year 
24   later.  Obviously, we were using the same 
25   paperwork.
0050
 1         Q.    So you were practicing --
 2         A.    Cleveland Clinic.
 3         Q.    Thank you.  Moving on to page 2 of 
 4   the record, how about if you tell me how to 
 5   identify the page.
 6         A.    Menstrual history, frequency every 
 7   28 days, flow four to five days.  I asked her 
 8   about intermenstrual bleeding and pain with 
 9   menstrual periods, dysmenorrhea, and I would 
10   have marked off or questioned her about 
11   menstrual irregularity, amenorrhea, 
12   dysmenorrhea, hirsutism, galactorrhea. 
13               She did report a weight gain of 30 
14   pounds over two years.  Any history of pelvic 
15   infections, the use of an intrauterine 
16   contraceptive device, abdominal surgery, visual 
17   disturbances/headaches, and I asked her about 
18   exercise.  My notation of that would be plus 
19   minus which she would have said that she may 
20   exercise at times.
21         Q.    Did you enter when her last 
22   menstrual period was?
23         A.    Not on this, I did not.
24         Q.    Under the list that you just 
25   reviewed, you made notations plus or minus next 
0051
 1   to each one of those inquiries; true?
 2         A.    Those inquiries, correct.
 3         Q.    So when you're reviewing this, 
 4   you're certain that you asked those questions; 
 5   correct?
 6         A.    Correct.
 7         Q.    Under the comment section, did you 
 8   enter any comments?
 9         A.    No.
10         Q.    Under the sexual history section, 
11   can you review your findings there?
12         A.    Frequency of intercourse three to 
13   four times a week.  I asked her about lubricants 
14   and pain with intercourse, and she said no to 
15   both of those.
16         Q.    Moving on to page 3 of the 
17   infertility record, it begins with medications 
18   and history.  Can you review for me your 
19   findings?
20         A.    I would have asked her if she used 
21   any fertility drugs and if she had been on a 
22   birth control pill in the past, and I put a line 
23   through no.
24         Q.    That line acknowledges that you 
25   asked whether she took oral contraceptives, 
0052
 1   Clomiphene, gonadotropins, estrogens?
 2         A.    I would have probably asked her any 
 3   birth control pills and any fertility 
 4   medication.
 5         Q.    Again, that slash mark through no 
 6   indicates that you got a negative response from 
 7   her; correct?
 8         A.    Correct.
 9         Q.    Moving on, details of previous 
10   tests, any other entries under male?
11         A.    Other than what we outlined earlier, 
12   that he had a semen analysis, there was no other 
13   relevant entry there.
14         Q.    Under female, you didn't choose to 
15   put a slash mark down the no section?
16         A.    No.
17         Q.    It's your assumption based on 
18   looking at the record that you would have asked 
19   those questions?
20         A.    100 percent.
21               MS. SANDACZ:  Objection.  I'm going 
22   to object to the word assumption, but go ahead.
23         A.    Correct.  I would have always asked 
24   those questions because they affect ovulation.
25         Q.    My question is, why did you have 
0053
 1   different entries for the top half of the page 
 2   and the bottom half of the page?  Why did you 
 3   record different notations as to the responses?
 4         A.    I'm not certain.   It depends.  I 
 5   may have been answering other questions when I 
 6   was marking things down.  She may have asked 
 7   questions about ovulation, et cetera, and I may 
 8   or may not have marked things as the same thing.  
 9   If I had asked her about prolactin or DHEAS and 
10   she said no and then asked me a question about 
11   ovulation, I may not have marked those down, but 
12   the questions are always asked.  I don't 
13   remember.
14         Q.    How would you know when you're 
15   taking care of an infertility patient by looking 
16   back at this record whether or not these blood 
17   tests, for example, needed to be done?
18         A.    How would I know if they needed to 
19   be done based on this?
20         Q.    Based on your entries.
21         A.    Based on this I would know that they 
22   would not need to be done.  I knew she was 
23   having regular cycles, that she was probably 
24   ovulating, she didn't have headaches or blurred 
25   vision, she didn't have galactorrhea which is 
0054
 1   one of the questions, so I would know that 
 2   prolactin wasn't necessary or DHEAS wasn't 
 3   necessary.  That is how I would know, by looking 
 4   at the records.
 5         Q.    So an infertility patient would have 
 6   to have galactorrhea before they would have a 
 7   prolactinoma that causes infertility?
 8         A.    Not at all.  But I would have asked 
 9   her if she had it done, but I would have made my 
10   own decision whether they were necessary.
11         Q.    I understand.  But based on the 
12   record, looking back at it, how would you know 
13   whether or not the patient had told you that the 
14   prolactin levels were drawn?
15         A.    If she had had it done, I might have 
16   marked yes.
17         Q.    You might have marked yes or would 
18   have marked yes?
19         A.    I probably would have marked yes.  
20   If I had asked her the question and she asked me 
21   something else, I may not have remembered to 
22   mark it, but I generally would have marked yes 
23   for a positive answer.
24         Q.    Moving on to page 4.  CX is that --
25         A.    Cervix, sperm.
0055
 1         Q.    You put in an entry the PCT was --
 2         A.    No.
 3         Q.    Sperm antibodies, is that a test 
 4   that was done or not?
 5         A.    I may have asked her that, but 
 6   that's something that Tony Thomas would have 
 7   done and not me.  So it's not a test that I 
 8   would run.
 9         Q.    So the absence of an entry at no or 
10   yes, what does that mean to you today?
11         A.    I don't know.
12         Q.    Moving on to the tubal section, you 
13   have under the entry of HSG?
14         A.    No.
15         Q.    That she did not have an HSG?
16         A.    Correct.
17         Q.    And under the title of laparoscopy 
18   there's a box for yes and no?
19         A.    Correct.
20         Q.    Is anything checked there?
21         A.    No.
22         Q.    Do you know whether Mrs. Berry had a 
23   laparoscopy prior to your visit?
24         A.    I would have known that she didn't 
25   because I asked her earlier if she had had any 
0056
 1   surgery.  Two places she was asked for surgery.
 2         Q.    But you didn't record anything?
 3         A.    Correct.  But they were the same.  I 
 4   would have asked her.
 5         Q.    Now, under the physical examination, 
 6   read for me your entries under physical exam.
 7         A.    There's no entries there because I 
 8   would not have examined her at this 
 9   consultation.
10         Q.    So no exam is part of an infertility 
11   consultation?
12         A.    It depends on -- it depends on the 
13   infertility.  If I thought it would have 
14   affected what I was going to do in terms of 
15   treatment, I would have examined her.  Based on 
16   the history, I did not feel that I needed to 
17   examine her, so I would not have examined her.
18         Q.    So the absence of information there 
19   means that you did not do a physical 
20   examination; is that a fair statement?
21         A.    Knowing what I do, I know I would 
22   not have examined her.  The absence of anything 
23   there doesn't have anything to do with it.  I 
24   know I would not have examined her.
25         Q.    So for a new infertility patient, 
0057
 1   your general practice is not to do a physical 
 2   exam?
 3               MS. SANDACZ:  Objection.  That's not 
 4   what he said.
 5         A.    Not to do a physical exam unless I 
 6   think there's something there that is going to 
 7   affect her fertility, correct.
 8         Q.    I guess I'm struggling with what in 
 9   the history would tell you that you should do a 
10   physical exam on an infertility patient.
11         A.    18 years of doing this.
12         Q.    So it's your experience?
13         A.    Experience would have told me if I 
14   felt at that point I needed to examine a 
15   consultation for infertility.
16         Q.    Moving on to page 5 of the 
17   infertility form, it begins with the heading of 
18   assessments?
19         A.    Correct.
20         Q.    Can you tell me what entries you 
21   made on this sheet?
22         A.    My own assessment, I put two 
23   question marks next to the male because I felt 
24   this was probably male, and I didn't mark 
25   anything else because, again, I would have felt 
0058
 1   that that probably was the major cause.  And 
 2   what I would have put out as a plan would have 
 3   been based on what my assessment of the 
 4   infertility would be. 
 5               I wrote a long discussion of 
 6   fertility workups, cancer, side effects, 
 7   multiple pregnancies, costs, et cetera.  I 
 8   wrote, semen analysis compromised.  I would have 
 9   rewritten the semen analysis.  And I outlined a 
10   plan for the patient including, clomiphene 
11   citrate, postcoital test cycle number one, an 
12   endometrial biopsy for ovulation cycle number 
13   two, an X-ray cycle number one, and I made a 
14   notation, may need IUI, intrauterine 
15   insemination, versus in vitro. 
16               At some point I must have come back 
17   and said the X-ray was normal 12-26-01.
18         Q.    Now, up at the top adjacent to the 
19   infertility where you have the male and some 
20   notation on the line following that, there's a 
21   date there of 11-2-01; is that true?
22         A.    Correct.  That's probably the time 
23   he did the semen analysis.
24         Q.    You made a notation immediately 
25   before the 11-2-01.
0059
 1         A.    There's two question marks.
 2         Q.    Is there a line through that on your 
 3   record?
 4         A.    Yeah.  It's hard to know what it 
 5   means.  I may have made a dash and then put 
 6   question mark question mark.
 7         Q.    So your plan, just to reiterate, was 
 8   to do a postcoital and then an endometrial 
 9   biopsy on cycle two?
10         A.    Correct.
11         Q.    And an HSG.  So the postcoital and 
12   HSG would be done on cycle number one?
13         A.    Cycle number one, correct.
14         Q.    What is an HSG?
15         A.    It's an X-ray to assess the patency 
16   of the fallopian tubes and the shape of the 
17   uterus, the cavity of the uterus.
18         Q.    Would you want to have a pelvic done 
19   before an HSG?
20         A.    Not necessarily.
21         Q.    Based on this five-page record or 
22   five-page form that we've just reviewed, is 
23   there any notation here that you are aware of 
24   that confirms that Mrs. Berry had a normal Pap 
25   smear prior to your visit?
0060
 1         A.    No.
 2         Q.    Is there any notation here that 
 3   would tell us that Mrs. Berry had a normal 
 4   gynecologic exam prior to this visit?
 5         A.    No.
 6         Q.    Is there any notation here that 
 7   would identify whether Mrs. Berry had a breast 
 8   exam prior to your visit?
 9         A.    Not by me, no.
10         Q.    Prior to your visit?
11         A.    Correct, no.
12         Q.    Generally speaking in a patient that 
13   is an infertility patient, is there any screen 
14   in place with regards to infertility patients as 
15   to complications that might occur with regards 
16   to the medications that they receive?
17         A.    What do you mean by screen?
18         Q.    Is there any kind of protocol that 
19   you follow in assessing a patient's risk prior 
20   to the administration, risk of complications 
21   from these medications, prior to the 
22   administration of those medications?
23         A.    I would have discussed the risks 
24   with the patient of the drugs and the side 
25   effects of the medication, and that would have 
0061
 1   been what I would have assessed with the 
 2   patient.
 3         Q.    Now, when was the date of this 
 4   visit?
 5         A.    December 4th, 2001.
 6         Q.    Where did you identify that date?  
 7   Is it on the five-page record that we just 
 8   reviewed?
 9         A.    No.
10         Q.    So there's more to the visit?
11         A.    A nurse who would have brought the 
12   patient back would have filled out a brief 
13   history for the patient.
14         Q.    What are you referring to there?  Is 
15   that something I have?
16         A.    Chief complaint.
17         Q.    That's a piece of paper identified 
18   with the chief complaint in the upper left-hand 
19   corner?
20         A.    It says consultation.
21         Q.    Consult, okay.  And the references 
22   on this sheet were filled in by a nurse?
23         A.    Correct.
24         Q.    Is that nurse identified anywhere on 
25   this?
0062
 1         A.    No.
 2         Q.    You just flipped over to the back 
 3   side.
 4         A.    To see if it was signed, but no.
 5         Q.    That's a two-page record?
 6         A.    Correct.
 7         Q.    The second page includes what?
 8         A.    Height, weight, blood pressure.
 9         Q.    It's entitled?
10         A.    Physical exam.  This is a piece of 
11   paper that's used for patients coming in for 
12   gynecological care or routine visits.  That 
13   would be what was documented on patients who 
14   have a routine examination or gynecological 
15   examination or a follow-up examination, and the 
16   nurse would fill in the front.  It was marked 
17   here as a consultation.
18         Q.    I'm going to identify and mark this 
19   as Plaintiff's Exhibit 3.
20                       - - - - -
21          (Thereupon, Plaintiff's Deposition
22           Exhibit 3 was marked for purposes
23                  of identification.)
24                       - - - - -
25         Q.    What I've just marked as Plaintiff's 
0063
 1   Exhibit 3 is a two-page document that identifies 
 2   a chief complaint.  Would it be fair to say that 
 3   this page is a history taken by the nurse, 
 4   page 1 --
 5         A.    Correct.
 6         Q.    -- of the two-page document?  The 
 7   second page, it's entitled physical examination?
 8         A.    Correct.
 9         Q.    That would be typically completed by 
10   a nurse?
11         A.    The height, weight, and blood 
12   pressure would be always done by the nurse.  The 
13   examination, and it depends on the practice of 
14   each of the physicians, but for myself, I never 
15   even use this even on routine patients.  I 
16   always write a SOAP note.  So this would still 
17   -- the front page would still be done by the 
18   nurse checking in the patient, the vital signs 
19   would be done by the nurse, and even for a 
20   routine examination I still don't use this. 
21               This was just part of the practice, 
22   and it always has it in the chart, but I always 
23   write a SOAP note when I examine the patient.
24         Q.    The physical examination, you did 
25   not complete the form, the physical examination 
0064
 1   form, on Mrs. Berry's initial consult; correct?
 2         A.    Correct.  And I would never fill out 
 3   this page even if I did.
 4         Q.    You mentioned that you would do a 
 5   SOAP note.  Is there a SOAP note in your record 
 6   for her 12-4-01 visit?
 7         A.    No, because I didn't do an 
 8   examination because it was a consultation.
 9         Q.    Following that initial consultation, 
10   Mrs. Berry was being seen as an infertility 
11   patient in the in vitro clinic?
12         A.    Correct.
13         Q.    Do you know what years, from when to 
14   when she was a patient of the in vitro clinic?
15         A.    I'd have to look through the records 
16   of the notes and the times, but 12-10-2001 she 
17   was scheduled for a hysterosalpingogram.  12-17 
18   she would have had a hysterosalpingogram because 
19   I spoke to her on the telephone.  12-26-2001 the 
20   HSG, it was within normal limits.  She would 
21   have decided to try Clomid with insemination for 
22   one to two cycles, and if not pregnant would 
23   consider in vitro fertilization.
24         Q.    I'm going to have you slow down for 
25   a second.  I want to make sure I'm reading what 
0065
 1   you're reading.  I just want to compare notes.  
 2   This is the page that you just read to me, and 
 3   it's identified with Berry, Rhonda, a stamp so 
 4   to speak --
 5         A.    Correct.
 6         Q.    -- of her demographic information, 
 7   and the first entry on that page is 12-10-01?
 8         A.    Correct.
 9         Q.    That entry, is that your writing?
10         A.    No.
11         Q.    Tell me.
12         A.    That's Mary Elton, a registered 
13   nurse, who would have scheduled her for a 
14   hysterosalpingogram.
15         Q.    And is there an entry on the page --
16         A.    Underneath that there's an entry by 
17   me, 12-26-01, telephone call, 
18   hysterosalpingogram within normal limits, will 
19   try Clomid with insemination for one to two 
20   cycles and if not pregnant would consider in 
21   vitro fertilization.
22         Q.    So you continued to manage 
23   Mrs. Berry while she was an infertility patient; 
24   correct?
25         A.    I managed her infertility, correct, 
0066
 1   although it's a group thing.  The four of us sit 
 2   at this table every day at 12:30 discussing 
 3   patients coming through.  So if she had come 
 4   through for an insemination and I wasn't here 
 5   and there was a question about the insemination, 
 6   between the nurses and the four physicians, the 
 7   patients are always managed as a team.
 8         Q.    Are there any other entries in the 
 9   infertility record that are your specific 
10   entries?
11         A.    I would have to look.   
12         Q.    I have a couple here pulled from the 
13   record. 
14         A.    On the infertility record there's no 
15   single entry that would have been mine.
16         Q.    Let me show you a piece of paper and 
17   see if I can get them in my file the way I have 
18   them, but I pulled these.  I don't know if 
19   there's any way that you can identify that.
20         A.    Well, that I can identify.  There's 
21   writing here that's my writing.  But when you 
22   talk about the infertility record, I would have 
23   gone back to treatment, insemination in vitro, 
24   and there's no records of mine.  But in terms of 
25   contact with the patient in the records, yes, 
0067
 1   definitely I spoke to the patient, and then my 
 2   next record would have -- my own next record 
 3   would have been almost a year later, 11-7-2002.
 4         Q.    To identify that progress note, that 
 5   starts with a heading of 9-20-02?
 6         A.    It starts with a heading 9-20-02.  
 7   There's a note from Dr. Austin.
 8         Q.    Then underneath that the 9-23-02 
 9   entry is?
10         A.    There's two entries there, three 
11   entries by nursing, two of the nurses.  I think 
12   all of them are infertility nurses.  Then 
13   there's a note 11-7-02 that I left a message for 
14   Mr. Berry, and there's a note that I marked 
15   11-7-02 which is the same day, telephone call 
16   with husband, started bleeding today, minimal 
17   amount, to come in for stat HCG.
18         Q.    Then is there something adjacent to 
19   your second entry with regards to the HCG in the 
20   margin, is that your writing?
21         A.    It says telephone call with husband.
22         Q.    Thank you.  And is this follow-up in 
23   response to an infertility procedure?
24         A.    I'd have to go back and look, but 
25   presumably that would have been a bleed after an 
0068
 1   in vitro cycle.  She may have had a period after 
 2   her first cycle of in vitro fertilization, and I 
 3   could tell you that rather easily. 
 4               Yeah, 11-7-02 would have been two 
 5   weeks after an embryo transfer.  HCG was less 
 6   than five, so that would have been a failed 
 7   fresh in vitro cycle.
 8         Q.    Following that on the next page, I 
 9   think there may be an entry from you following 
10   in the progress notes.  I think that's the next 
11   page of your record.
12         A.    Correct.
13         Q.    Just to identify that sheet, it's 
14   got Rhonda Berry on the top left-hand corner.
15         A.    The first date is 11-7-02.
16         Q.    Can you tell me what entry you made 
17   on that record?
18         A.    The next entry is dated 12-3-2002, 
19   patient consult for infertility.  I made a note, 
20   long discussion regarding frozen embryo transfer 
21   and fibroids.  Would suggest frozen embryo 
22   transfer first with ultrasound.  Normal saline 
23   ultrasound in the past, and that would imply 
24   that she didn't need the fibroid taken out. 
25               Then if not pregnant, consider 
0069
 1   myomectomy before IBF cycle, meaning a fresh IBF 
 2   cycle.  I can't read my writing.  Due to fibroid 
 3   could not retrieve from the left so due to the 
 4   fibroids.  So I would have told the patient that 
 5   for a frozen transfer, we don't need to retrieve 
 6   eggs, but if she went through another fresh 
 7   cycle, she presumably didn't get any eggs from 
 8   the left because the fibroid might have been in 
 9   the way.
10         Q.    That's fine.  If you want to read me 
11   the next entry, I'm just trying to read your 
12   writing.
13         A.    12-18-02, would suggest going to 
14   frozen embryo transfer.  If not pregnant do a 
15   myomectomy.  Presumably, again, it's a 
16   repetition of what I told her before.
17         Q.    Anything else on that page from you, 
18   any other entries?
19         A.    No.
20         Q.    Then the next page?  You just 
21   flipped it over to page 4.
22         A.    2-24-2003, it's the infertility 
23   nurse's notes regarding nausea. 
24         Q.    If everybody is okay with it, I have 
25   three pages of what he just reviewed.  I can 
0070
 1   mark that as a separate exhibit.
 2                       - - - - -
 3          (Thereupon, Plaintiff's Deposition
 4           Exhibit 4 was marked for purposes
 5                  of identification.)
 6                       - - - - -
 7         Q.    That's three pages of progress notes 
 8   between 11-7-02 and 12-11-03. 
 9               MS. SANDACZ:  Is that 2-11-03?
10               MS. PERSE:  Yes, 2-11-03.  Sorry 
11   about that.
12               MS. SANDACZ:  That's all right.
13         Q.    Are you still okay?
14         A.    Fine.
15         Q.    Then following that infertility 
16   treatment, did you continue to care for 
17   Mrs. Berry?
18         A.    The patient conceived through frozen 
19   embryo transfer, and then I saw her for a first 
20   obstetrical visit 3-11-2003.
21         Q.    How long did you continue to care 
22   for Mrs. Berry through that pregnancy?
23         A.    Approximately my last entry would 
24   have been 4-28.  The last time I saw her was 
25   4-28-03.  She was approximately 15 weeks and 
0071
 1   three days.
 2         Q.    15 weeks, is that the first or 
 3   second trimester?
 4         A.    Second.
 5         Q.    We can agree that you completed her 
 6   initial prenatal assessment?
 7         A.    Correct.
 8         Q.    Is that also known as an OB one 
 9   visit?
10         A.    In our group it is, correct.
11         Q.    What is involved in an initial 
12   assessment, OB assessment?
13         A.    That this patient would have been in 
14   an examination room, and I would have asked her 
15   or the nurses would have, but in this case I 
16   would have asked her the questions, done a full 
17   examination, and sometimes an ultrasound and 
18   sometimes not an ultrasound, to assess the 
19   viability of the pregnancy.  In this patient, I 
20   wouldn't have done it because we knew already 
21   that she had an ultrasound showing two sacs with 
22   a viable single pregnancy.
23         Q.    You know that because of her --
24         A.    In vitro.  Because in vitro patients 
25   would have had numerous ultrasounds.  I would 
0072
 1   have marked an ultrasound if I did an ultrasound 
 2   at the first OB visit.  But at the first OB 
 3   visit I would do a full examination.
 4         Q.    Are there any specific protocols or 
 5   guidelines put forward or set forth by the 
 6   American College as to what is necessary in an 
 7   initial OB assessment?
 8         A.    I have no idea.
 9         Q.    After Mrs. Berry's pregnancy, you 
10   continued to care for her through about the 15th 
11   week; is that fair?
12         A.    During the pregnancy, not 
13   afterwards.  During the pregnancy I cared for 
14   her through the 15th week, correct.
15         Q.    After the pregnancy did you render 
16   any further care to Mrs. Berry?
17         A.    From the note, I saw her 6-21-2004 
18   which I would imagine would have been about 
19   eight months after her delivery of the baby.
20         Q.    Why did you see Mrs. Berry at that 
21   time?
22         A.    At that point she had come in for 
23   her routine annual examination, gynecological 
24   examination.  That's where I would have written 
25   the SOAP note.
0073
 1         Q.    Is it fair to say that Mrs. Berry 
 2   was a patient of yours from 2001 through that 
 3   visit of 2004?
 4               MS. SANDACZ:  Objection.
 5         A.    No.
 6         Q.    Did Mrs. Berry see you during that 
 7   time for management of her infertility?
 8         A.    She was a patient of mine from 2001 
 9   until the last time I saw her was 4-28-2003.  I 
10   didn't see her from 4-28-2003 until 6-21-2004, 
11   so she wasn't a patient of mine.  She was being 
12   seen by her Ob/Gyn for delivery.
13         Q.    Fair enough.  So in June 2004 
14   Mrs. Berry returned to you as a gynecologic 
15   patient; true?
16         A.    Correct.
17         Q.    Prior to that in 2001 she was an 
18   infertility patient of yours?
19         A.    Correct.
20         Q.    And then in March of 2003, 
21   Mrs. Berry was an obstetrical patient of yours; 
22   true?
23         A.    Correct.
24         Q.    Other than what you may have done at 
25   the direction of your attorney, have you 
0074
 1   maintained any independent notes with regards to 
 2   Mrs. Berry's file?
 3         A.    Nothing at all.
 4         Q.    You mentioned before that you don't 
 5   remember Mrs. Berry in 2001.  Do you recall 
 6   Mrs. Berry as a pregnant patient of yours in 
 7   2003?
 8         A.    Not at all.
 9         Q.    Do you recall Mrs. Berry as a 
10   gynecologic patient of yours in June of 2004?
11         A.    No.
12         Q.    Can we agree that an 
13   obstetrician/gynecologist is considered a 
14   woman's primary care physician?
15         A.    May be a primary care physician, 
16   correct.
17         Q.    As a primary care physician, the 
18   role of a primary care physician is to screen a 
19   patient and maintain preventative health?
20         A.    Correct.  Obstetrical.  For me, 
21   obstetrical and gynecological health, correct.  
22   I wouldn't do other screening that's not 
23   gynecological.  I wouldn't do colonoscopies and 
24   things like that which are part of a screening 
25   process.  No, I wouldn't do that.
0075
 1         Q.    Gynecological, a well woman 
 2   evaluation would include a breast examination?
 3         A.    Correct.
 4         Q.    For a gynecologic patient, a breast 
 5   exam is part of that?
 6         A.    Correct.
 7         Q.    An obstetrical patient, a breast 
 8   exam is considered part of an obstetrical?
 9         A.    At the initial visit, correct.
10         Q.    Postpartum -- strike that.  For an 
11   Ob/Gyn in the postpartum evaluation of a no 
12   longer pregnant female is a breast exam part of 
13   the physical examination?
14         A.    Sometimes it's done; sometimes it's 
15   not.  Many times the patient is breastfeeding 
16   and doesn't want a breast exam, but it's usually 
17   based not on the physician but based on the 
18   patient's choice.
19         Q.    As a gynecologist, I know you wear a 
20   lot of hats as an Ob/Gyn and here in infertility 
21   as well, but as a gynecologist doing a well 
22   woman exam, a breast exam is part of that exam?
23         A.    As a gynecological exam, correct.
24         Q.    How often should a breast exam be 
25   performed on a gynecology patient?
0076
 1               MR. KRAUSE:  Note an objection.
 2               MR. PERRY:  Objection.
 3         A.    It depends on by who.  The patient 
 4   should perform her own breast exam every month.  
 5   The gynecologist if she sees them every year 
 6   would routinely do a breast exam, but it depends 
 7   on the patient returning.  It's not based on 
 8   what we do.  It's based on when the patient 
 9   returns.
10         Q.    The self-breast exam, that's part of 
11   the duty of the Ob/Gyn to instruct the patient 
12   to do monthly self-exams; true?
13         A.    I don't think it's a duty.  It's 
14   something we tell our patients to do or 
15   encourage our patients to do, not tell.
16         Q.    If you say that a patient should be 
17   doing their own self-breast exam, they need to 
18   be told by a health care professional to do a 
19   self-breast exam; would you agree?
20               MS. SANDACZ:  Objection.  Go ahead.
21               MR. KRAUSE:  Objection.
22               MR. PERRY:  Objection.
23         A.    That's one of the people that would 
24   tell them.  The lay literature would also say 
25   the same thing.
0077
 1         Q.    Are you familiar with any of the 
 2   billing codes that you use in your office?
 3         A.    Zero.
 4         Q.    Can we agree that billing codes are 
 5   a numerical code that identify what has been 
 6   done on a patient?
 7               MR. PERRY:  Objection.
 8               MR. KRAUSE:  Objection as to 
 9   foundation.
10               MS. SANDACZ:  Objection.
11         A.    In a broad sense.
12         Q.    Can we agree that a billing code for 
13   a new patient would be different than a billing 
14   code for a consultation visit?
15               MS. SANDACZ:  Objection.  I think he 
16   told you he's not familiar with the codes, so 
17   I'm not sure that he can answer.  But go ahead.
18         A.    Yes.  I don't know.  I don't do the 
19   billing.
20         Q.    How do you communicate to your staff 
21   what's been done for billing purposes?
22         A.    I check that sheet of paper based on 
23   what's written down, not on the numbers or 
24   whatever the code is.
25         Q.    So you check the face sheet?
0078
 1         A.    The face sheet.  So a new patient 
 2   whether she was an infertility patient or not, I 
 3   check that.  On the back of the sheet I might 
 4   check whether it was infertility or heavy 
 5   periods or something like that.  But how they 
 6   bill the patients, I have no idea.
 7         Q.    Are there any face sheets in the 
 8   record that you have before you?
 9         A.    They are never in the chart.
10         Q.    But you complete some part --
11         A.    Correct.  The front of the part on 
12   the patients, yeah, but they wouldn't otherwise 
13   be in the chart.
14               MS. PERSE:  I'll make a request on 
15   the record, and I'll try to make it formally on 
16   paper, but I would like a copy of the face 
17   sheets for Mrs. Berry's office visits.
18               MS. SANDACZ:  If we have them.
19               THE WITNESS:  If they have them.
20               MS. SANDACZ:  If not, I can probably 
21   get you a sample one that might be used.  I 
22   don't know if we have them for her.  Would that 
23   be all right?
24               MS. PERSE:  That would be all right, 
25   but ideally I would like a face sheet for the 
0079
 1   patient, if there's a file on that.  I recognize 
 2   that you have to verify it perhaps with the 
 3   billing department here at the practice.
 4               MS. SANDACZ:  Okay.  I'll try for 
 5   hers.  If she doesn't I'll certainly provide you 
 6   with a blank one that you can see.  I'm going to 
 7   do the best I can as far as the timing as well 
 8   because I don't know if it's changed.  It's 
 9   changed obviously with periods of time, so we'll 
10   get you something.
11               MS. PERSE:  Okay.
12         Q.    Previously I requested from your 
13   attorney some billing records that have been 
14   provided from the Cleveland Clinic, and I have 
15   an entry, a billing request generated from the 
16   Cleveland Clinic on your behalf for March 14th, 
17   2001.  I'm going to show you this, and you tell 
18   me if you're familiar with these forms at all.
19         A.    March 14th, 2001 --
20         Q.    (Indicating.)
21         A.    Where is the date?
22         Q.    (Indicating.)
23               MS. SANDACZ:  It's a dermatology 
24   visit.
25               MS. PERSE:  Is that a dermatology 
0080
 1   visit?
 2               MS. SANDACZ:  It says a lesion.
 3         A.    It's not me.
 4         Q.    That's the closest one that I could 
 5   find.  I put a request in as to the specifics 
 6   with regards to your office visits.  I have not 
 7   received those to my knowledge, and of course, I 
 8   just requested them.
 9               MS. SANDACZ:  Right.  As I shared 
10   with you before the deposition started, we asked 
11   for those.  I believe somebody is out of the 
12   office today.  She couldn't get them, but we're 
13   trying.
14         A.    We changed systems.  They are 
15   trying.
16         Q.    I understand that.  Based on what 
17   those records may reveal, I may ask to redepose 
18   you based on only those questions.  I just would 
19   like to reserve the right for that on the 
20   record.
21         A.    That would be fine.
22         Q.    Earlier in terms of your 
23   credentialing or your credentials as an 
24   obstetrician-gynecologist, you mentioned that 
25   you are not board certified in reproductive 
0081
 1   endocrinology.
 2         A.    Correct.
 3         Q.    Would you consider yourself a 
 4   reproductive endocrinologist?
 5         A.    Absolutely.
 6         Q.    Is it unusual for a reproductive 
 7   endocrinologist to do initial OB exams?
 8         A.    Some people who do reproductive 
 9   endocrinology still do OB.
10         Q.    I guess that doesn't answer my 
11   question.  Is it unusual for a reproductive 
12   endocrinologist to also do OB?
13               MS. SANDACZ:  Objection.  Go ahead.
14         A.    I don't know.  I really don't know.  
15   I know two of the four of us that do the in 
16   vitro here still do OB.
17         Q.    A reproductive endocrinologist that 
18   then assumes care of the patient through the 
19   first trimester of the pregnancy, that physician 
20   is responsible as the obstetrician; correct?
21         A.    Correct.
22         Q.    At least until the transfer of that 
23   patient to another obstetrician?
24         A.    Correct.
25         Q.    Did Mrs. Berry transfer to another 
0082
 1   physician?
 2         A.    I think my review of the records 
 3   says she did, correct, and I think I recollect 
 4   something with insurance, but I'd have to look 
 5   through the whole chart to tell you that.  But I 
 6   think she transferred to somebody based on 
 7   insurance.  I think there's a note somewhere in 
 8   the chart.  There's a note from her, the one 
 9   with the smiley face.
10               MS. SANDACZ:  There's a note she 
11   sent to Dr. Peskin in his office.
12               MS. PERSE:  Can I take a look at 
13   that?  I'm not sure I've seen that.
14               THE WITNESS:  (Indicating.)
15               MS. PERSE:  I may request a copy of 
16   this.
17               MS. SANDACZ:  Absolutely.  I didn't 
18   know that you didn't have it.
19               MR. PERRY:  It had a picture of the 
20   baby.
21               THE WITNESS:  This would have been 
22   before the baby.  Maybe this was after.
23               MS. SANDACZ:  I think it was just 
24   then.
25               MS. PERSE:  So this is two pages 
0083
 1   here?
 2               MS. SANDACZ:  I think the way we 
 3   copied it is because one has a picture showing 
 4   on it.  Is that in there, the picture in the 
 5   original?
 6               MS. PERSE:  Yes.
 7               MS. SANDACZ:  I think we had it or 
 8   at least my copy.
 9               MS. PERSE:  Rather than having to 
10   stay and copy it as an exhibit, I'll just 
11   request this.
12               MS. SANDACZ:  Okay.  I'm making a 
13   list.
14               MS. PERSE:  Actually, it looks like 
15   a thank you card.  There's three pages is what I 
16   see in his record.
17               MS. SANDACZ:  Yes -- well, one is 
18   just a reflection of a phone call.
19               THE WITNESS:  No; one, two, and 
20   three.
21               MS. PERSE:  Yes.
22               MS. SANDACZ:  Thank you.
23         Q.    So that made you aware that 
24   Mrs. Berry was no longer seeing you?
25         A.    Correct.  I might have known that 
0084
 1   before.  You know, when she didn't show up for 
 2   20 weeks I would have realized she was somewhere 
 3   else, but there must be a request for records 
 4   going down to University at some place in the 
 5   chart.
 6         Q.    That's what I recall seeing.
 7         A.    There may be -- there must be a 
 8   request for records somewhere.
 9         Q.    Earlier you mentioned that a breast 
10   exam is a part of an initial OB exam; true?
11         A.    Correct.
12         Q.    Why is that?
13         A.    Part of what I would do routinely in 
14   an obstetrical visit is do a full gynecological 
15   exam.  An obstetrical exam is gynecological.  I 
16   would routinely do a breast exam in a first OB.
17         Q.    What is included in a breast exam?
18         A.    Examination of both breasts, lymph 
19   nodes, nipples, skin.
20         Q.    Would you agree it involves both 
21   visual inspection as well as palpation?
22         A.    Correct.
23         Q.    Would you agree that even 
24   documentation of a negative exam is important?
25         A.    It would be nice to document 
0085
 1   everything, and we try and document it, but I 
 2   don't know what you mean by important.
 3         Q.    Well, it's even important in terms 
 4   of the continuing care of the patient that you 
 5   can go back and look to see if the patient had 
 6   any breast abnormality if they ultimately 
 7   develop a problem; is that true?
 8               MS. SANDACZ:  Objection.  Go ahead.
 9         A.    It would be nice to document 
10   everything, but as you know, we don't document 
11   everything that we do.
12         Q.    Is it fair to say that every time a 
13   Pap smear is done on a well woman exam a breast 
14   exam would be done?
15         A.    No.  That's not true at all.
16         Q.    So I understand that Pap smears are 
17   sometimes done more frequently than every year.
18         A.    Correct.
19         Q.    But a well woman exam would include 
20   a Pap smear; true?
21         A.    No.  Not in 2007 it wouldn't.
22         Q.    But in 2003?
23         A.    A well woman visit would generally, 
24   depending on the age of the patient, include a 
25   Pap smear, but depending on the patient's 
0086
 1   history, it may or may not include a breast exam 
 2   because if she had been seen by a primary 
 3   physician the day before, it wouldn't be done.
 4         Q.    Would you document if a breast exam 
 5   had been normal or done by another physician?
 6         A.    I would always try to document 
 7   whatever I can but -- I mean, I would generally 
 8   try to document everything that is done, but I 
 9   can't document everything.
10         Q.    So in general you'd agree that a 
11   women's health care provider should be certain 
12   that a breast exam has been done if not by that 
13   individual provider but by another provider 
14   within say the last year?
15               MS. SANDACZ:  Objection.  Go ahead.
16               MR. KRAUSE:  Objection.
17               MR. PERRY:  Objection.
18         A.    Can you repeat the question?
19         Q.    As a provider of women's health 
20   maintenance, let's use that term, it's important 
21   to be certain that a woman has had a breast exam 
22   on an annual basis; true?
23         A.    That's what would be recommended, to 
24   do a breast exam on an annual basis.
25         Q.    Can we agree that an 
0087
 1   obstetrician-gynecologist is in a favorable 
 2   condition to diagnose breast disease in their 
 3   patients?
 4         A.    Correct.
 5               MS. SANDACZ:  Objection.
 6               MR. KRAUSE:  Objection.
 7               MR. PERRY:  Objection.
 8         Q.    Breast disease would include early 
 9   diagnosis of breast cancer; true?
10         A.    Correct.
11         Q.    Earlier diagnosis of breast cancer 
12   allows for earlier intervention?
13         A.    It's not my field at all, but I 
14   would imagine, yes.
15         Q.    Are you familiar with any guidelines 
16   set forth by any organization with regards to 
17   breast exams in the routine care of gynecologic 
18   patients?
19         A.    Not at all.
20         Q.    Not at all?
21         A.    (Indicating.)
22         Q.    If a patient presents to the 
23   gynecologist with a complaint of a breast lump, 
24   what should the gynecologist do?
25               MR. KRAUSE:  Objection.
0088
 1               MR. PERRY:  Objection.
 2               MS. SANDACZ:  Objection to all the 
 3   potential scenarios.
 4         A.    I can only tell you what I would do.  
 5   I can't tell you what anyone else would do.  I 
 6   would always do an examination, and depending on 
 7   the patient or the history and what I felt was 
 8   her degree of anxiety, I would go through the 
 9   whole spectrum of either reassuring the patient 
10   all the way through to sending the patient to a 
11   breast surgeon.  But it's variable depending on 
12   the patient.
13         Q.    So can we agree that for a patient 
14   that presents to an obstetrician-gynecologist 
15   with a complaint of a breast lump, a breast exam 
16   would be part of the initial evaluation?
17               MR. KRAUSE:  Objection.
18               MR. PERRY:  Objection.
19         A.    If there's a complaint of a breast 
20   lump or she has a history of a breast lump?
21         Q.    No.  If a patient presents with a 
22   complaint of a breast lump to their 
23   gynecologist, we can agree that an examination 
24   is in order; true?
25         A.    Correct.
0089
 1         Q.    That examination would entail visual 
 2   inspection; true?
 3         A.    Correct.
 4         Q.    And would entail palpation as well?
 5         A.    Correct.
 6         Q.    Following that examination, as a 
 7   gynecologist whether you felt anything or not, 
 8   let's take the scenario that if you felt 
 9   something, what would you recommend to that 
10   patient?
11               MS. SANDACZ:  Objection.
12               MR. KRAUSE:  Objection.
13               MR. PERRY:  Objection.
14               MS. SANDACZ:  There's a whole world 
15   of possibilities.
16         Q.    I'm trying to narrow it to the 
17   possibilities, and the first possibility is that 
18   you feel something.
19               MS. SANDACZ:  The only reason I'm 
20   saying this is because the patient could for a 
21   number of years have a history of a breast lump 
22   they have been watching forever.  There's many, 
23   many, many potential possibilities.  That's the 
24   only reason.
25               MR. KRAUSE:  Just for the record, my 
0090
 1   objection is that the question is vague.
 2         A.    If I feel a breast lump in a patient 
 3   -- a breast lump is what you used?  Is that the 
 4   word you used?
 5         Q.    Yes. 
 6         A.    Again, a lot would depend on the age 
 7   of the patient, how she felt, her family 
 8   history, the risk of the patient.  Myself, I 
 9   would send her to a breast surgeon if I was 
10   worried. 
11               But we see breast lumps all the time 
12   that may not be related to anything.  If I felt 
13   that the breast lump was a blocked milk duct, 
14   which is not uncommon in our field, I would not 
15   necessarily send her to a breast surgeon.  But 
16   assuming that she's not breastfeeding, I would 
17   say my own practice would be to send her to a 
18   breast surgeon --
19         Q.    Would you --
20         A.    -- even if I felt it was benign.
21         Q.    I'm not asking what your clinical 
22   decision was.  I'm just asking if you have a 
23   patient that presents with a complaint of a 
24   breast lump, number one, if you felt that breast 
25   lump and you confirmed that there was an 
0091
 1   abnormality in the area, what would your next 
 2   action be?
 3               MS. SANDACZ:  Objection.  Go ahead.
 4         A.    Depending on what the lump felt 
 5   like, depending on the history, I may be 
 6   conservative and watch it, see if it disappears 
 7   after her next menstrual period. 
 8               If it disappeared, I may follow it 
 9   conservatively.  If it doesn't disappear or if 
10   the patient was concerned, for myself, I would 
11   send the patient to a breast surgeon.
12         Q.    Would you do any other tests before 
13   you sent the patient to a breast surgeon?
14         A.    No.
15         Q.    So you would automatically go to the 
16   breast surgeon?
17         A.    Correct.
18         Q.    Have you ever done a needle 
19   aspiration of a breast lump in your office?
20         A.    In this office, no.
21         Q.    Why did you need to clarify it in 
22   this office?
23         A.    Because I've been practicing 
24   medicine for 20 years.  I've also practiced in 
25   South Africa where we did needle aspirations, 
0092
 1   correct.
 2         Q.    During your ten years here as a 
 3   Cleveland Clinic employee, you've never done a 
 4   breast aspiration?
 5         A.    Correct.
 6         Q.    Have you ever ordered mammograms on 
 7   patients?
 8         A.    Thousands.
 9         Q.    What would be the indication for a 
10   mammogram?
11               MS. SANDACZ:  Objection.
12               MR. PERRY:  Objection.
13               MR. KRAUSE:  Objection.
14               MS. SANDACZ:  Go ahead.
15         A.    Routine 35 to 40 I always get a 
16   baseline mammogram, and then from 40 onwards, my 
17   own feeling is I get mammograms on everybody 
18   from 40 onwards.
19         Q.    Do you ever get a mammogram on a 
20   patient who complains of a breast lump that you 
21   feel?
22         A.    I would recommend to see a breast 
23   surgeon and see what they decide.
24         Q.    You wouldn't recommend a mammogram?
25               MS. SANDACZ:  That's not what he 
0093
 1   said.
 2         A.    No.  I never said that.  I said I 
 3   would send them to a breast surgeon and let the 
 4   surgeon make the decision.
 5         Q.    So in a patient that has a breast 
 6   lump that you feel, you would not make the 
 7   decision to send them for a mammogram, but you 
 8   would send them to a breast surgeon to make that 
 9   decision?  Is that a fair statement of what you 
10   just said?
11         A.    What I would do.
12         Q.    Is there any other diagnostic 
13   testing that you would recommend on a patient 
14   that had a breast lump that you could 
15   appreciate?
16         A.    I wouldn't do any other testing 
17   myself.
18         Q.    Would you order any other tests?
19         A.    No.
20         Q.    Have you ever ordered a diagnostic 
21   mammogram?
22         A.    Diagnostic, no.  Diagnostic 
23   mammograms would be ordered by the breast 
24   radiologist or the breast surgeons, I would 
25   order a screening mammogram, which we do all the 
0094
 1   time, but we don't order diagnostic mammograms.  
 2   I should rephrase it.  I don't order diagnostic 
 3   mammograms.
 4         Q.    Did you order a diagnostic mammogram 
 5   on Mrs. Berry?
 6         A.    No.
 7         Q.    At no time during her course did you 
 8   order a diagnostic mammogram?
 9         A.    I suggested she get a mammogram, a 
10   routine screening mammogram, not a diagnostic 
11   mammogram.
12         Q.    Tell me what the difference between 
13   a diagnostic mammogram and a screening mammogram 
14   is.
15               MS. SANDACZ:  Objection.  If you 
16   know.
17         Q.    What is a diagnostic mammogram?  
18   What is a screening mammogram?
19         A.    Again, not my field at all, and my 
20   interpretation would be a screening mammogram 
21   would be a routine mammogram, and a diagnostic 
22   mammogram would be a view of a specific area of 
23   the breast, but that's my limited knowledge of 
24   the difference.
25         Q.    You ordered a screening mammogram on 
0095
 1   Mrs. Berry?
 2         A.    I didn't order.  I recommended a 
 3   mammogram.  I recommended a mammogram to the 
 4   patient at that routine visit because she was 35 
 5   years old.
 6         Q.    Have you seen the mammogram results 
 7   from the mammogram that you suggested to 
 8   Mrs. Berry?
 9         A.    I may or may not have seen them.  I 
10   really don't remember.  I can look through the 
11   chart and see.  At some point I may have seen 
12   them.  The results are interpreted by the 
13   radiologist, and eventually these results are 
14   sent to us.  But they can be sent at any time, 
15   so I don't know.
16         Q.    I'm going to hand you a radiology 
17   report from the Cleveland Clinic from 
18   August 17th, 2004, and that is the screening 
19   mammography bilateral; correct?
20         A.    Correct.
21         Q.    And there's a reference right 
22   underneath the title of screening mammography 
23   bilateral that indicates who the test was 
24   requested by?
25         A.    Correct.
0096
 1         Q.    That is?
 2         A.    By myself.
 3         Q.    That identifies you?
 4         A.    Correct.
 5         Q.    There's a --
 6         A.    Notation that I at some point got 
 7   this mammogram with additional imaging and I 
 8   signed it.  But this is communications between 
 9   the patient and the breast office and is done 
10   through them, not our office.
11         Q.    The signature?
12         A.    My signature.
13         Q.    The squiggle at the bottom is your 
14   signature?
15         A.    Correct.
16         Q.    Help me out with what the entry 
17   requested by Barry Peskin is.  I don't 
18   understand that.
19         A.    I would have --
20         Q.    I should ask this maybe.  Did you 
21   request Mrs. Berry's screening mammography?
22         A.    I suggested she get a mammogram.  
23   She would have walked up front at the end of the 
24   visit and said she needs a mammogram, and they 
25   would put it under my name.  But I would have 
0097
 1   always suggested because she's 35 years old to 
 2   get a mammogram, correct.
 3         Q.    You mentioned that she would walk up 
 4   front.  Where is that?
 5         A.    To the checkout where the patient is 
 6   -- to the front staff where they would check 
 7   out, and she would have then scheduled the 
 8   mammogram.  The screening mammograms may be 
 9   scheduled through our office for the patient's 
10   convenience.  They would walk up front rather 
11   than going down to the breast center.  They can 
12   get into their system and get a mammogram.
13         Q.    Your office staff would have 
14   scheduled the screening mammography?
15         A.    Correct.
16         Q.    I have another page here that is a 
17   Cleveland Clinic Division of Radiology radiology 
18   report.  Have you seen that report?
19         A.    I signed it, so I must have seen it 
20   at some point.
21         Q.    Do you want to identify for the 
22   record what this is entitled?
23         A.    It says radiology report diagnostic 
24   mammogram left.  It says they were requested by 
25   me, but I would not have ordered that.
0098
 1         Q.    It's your testimony you did not 
 2   order the diagnostic?
 3         A.    100 percent.
 4         Q.    How is it that your name --
 5         A.    Because I may have been seen then as 
 6   her primary care physician because my name would 
 7   be on the other one, but we can't order 
 8   diagnostic mammograms out of our office.
 9         Q.    Is there anything about this report, 
10   if you could help me here, that would indicate 
11   that this did not come from your office?
12               MS. SANDACZ:  I think the previous 
13   one will tell you that it says incomplete 
14   evaluation on 8-17, so then patient is requested 
15   to come back by the radiology department.
16               MS. PERSE:  I want to hear his 
17   testimony.
18               MS. SANDACZ:  I'm just trying to 
19   help you out.
20         Q.    I'm looking at that piece of paper, 
21   and I'm trying to identify if there's anything 
22   on that radiology report that would tell me that 
23   you did not request that mammogram, that 
24   diagnostic mammogram.
25         A.    Nothing on this report at all.
0099
 1               MR. KRAUSE:  Just so I'm clear on 
 2   the dates here, you're talking about the second 
 3   one, the 8-25?  I have them both in front of me.
 4               MS. PERSE:  If you want to identify 
 5   that better because I'll mark it as an exhibit.
 6               MR. KRAUSE:  I have it.  I just 
 7   wanted to make sure I didn't miss anything.
 8         A.    Correct.
 9         Q.    The 8-25-2004 left diagnostic 
10   mammogram you did not order?
11         A.    Correct.
12         Q.    Were you aware of these results?
13         A.    At some point I may have been aware 
14   because I signed it.
15         Q.    You have no way of telling when you 
16   became aware of that?
17         A.    Not at all.
18         Q.    Do you have any system in your 
19   office as to reports getting reviewed by you 
20   before they get filed?
21         A.    Anything that's abnormal is reviewed 
22   by me before it gets filed.  We get reports 
23   depending on what it is at variable times.
24         Q.    Who determines whether they are 
25   abnormal or not?
0100
 1         A.    The nursing staff usually, but 
 2   mammograms generally would just be placed in my 
 3   box to look at.
 4         Q.    Before they would get filed?
 5         A.    Correct.
 6         Q.    That would be whether they were 
 7   normal or abnormal?
 8         A.    Generally, yes.
 9         Q.    If a patient complains of a breast 
10   lump and you don't feel anything, what would be 
11   your recommendation to the patient?
12         A.    Again, it's very variable.  It 
13   depends on the age of the patient, her 
14   reproductive history, her family history, her 
15   concerns, where she is in her cycle. 
16               I may go the whole gamut from 
17   reassuring the patient to watch what happens 
18   over the next menstrual cycle if she's 
19   menstruating or if she's in the reproductive age 
20   group to asking her to see a breast surgeon if 
21   she's very concerned.  It's very variable.
22         Q.    If the patient complains of a breast 
23   lump and you don't feel anything and the patient 
24   has a history of a breast lump in the past and 
25   she's 35 years old, what recommendations would 
0101
 1   you make?
 2               MS. SANDACZ:  Objection.
 3               MR. KRAUSE:  Objection.
 4               MR. PERRY:  Objection.
 5         A.    Again, depending on her history and 
 6   how concerned she is and what it feels like, I 
 7   may also try and reassure the patient that it 
 8   may be normal, all the way, again, depending on 
 9   the patient's anxiety and my own feeling whether 
10   to send her to a breast surgeon or not.  For 
11   myself, I'm very conservative.  I would always 
12   send them up to the breast surgeons.
13         Q.    So it would be your practice 
14   typically to err on the side of sending the 
15   patient for an evaluation by a breast surgeon; 
16   is that a fair statement?
17               MS. SANDACZ:  Objection.
18         A.    Correct.  I wouldn't say every 
19   patient because we see thousands of patients 
20   that have discomfort in their breasts.  But it's 
21   so variable.  It depends on the size of the 
22   breast, what they feel like, the caffeine 
23   intake, how close they are to their period, 
24   whether she's breastfeeding, family history.  
25   There are many variables in how we make these 
0102
 1   decisions.
 2         Q.    Can a breast lump be determined to 
 3   be benign just by examination?
 4               MS. SANDACZ:  Objection.  Go ahead.
 5         A.    No, not necessarily.  Clinical 
 6   acumen is used in medicine.
 7         Q.    By clinical acumen, explain to me 
 8   what you mean.
 9         A.    History, how it feels, experience, 
10   and then also taking into account the patient's 
11   concerns, the patient's own feeling.  In the end 
12   it's the patient's decision.  I can only tell 
13   you how I practice, and if there's a breast 
14   lump, my general thing is to send the patient to 
15   a breast surgeon.
16         Q.    Is there an age below which a 
17   patient will not get breast cancer?
18         A.    No, not at all.
19         Q.    I'm just trying to determine these 
20   variables as to where you would be comfortable 
21   saying that this is a benign problem.
22         A.    It's not only based on age.  It's 
23   based on everything else.  So if somebody 
24   presents with a fullness in the breast who is 
25   also breastfeeding or soon after postpartum, it 
0103
 1   may be less concerning than someone who is 65 
 2   years old having an area of discomfort.
 3         Q.    Would you recommend to a patient 
 4   that has breast fullness in the postpartum 
 5   period that's breastfeeding and you were 
 6   reassured clinically that this was not much to 
 7   worry about, would you recommend the patient 
 8   return to you for another physical examination?
 9               MR. KRAUSE:  Objection.
10               MS. SANDACZ:  Objection.  Go ahead.
11               MR. PERRY:  Objection.
12         A.    Again, not necessarily.  Because if 
13   the patient felt that the fullness disappeared 
14   or she was comfortable with what was going on, 
15   my own feeling would be to tell the patient if 
16   it doesn't disappear to let me know, but not 
17   necessarily to come back based on the schedule 
18   but based on how she feels.
19         Q.    We can agree that a breast 
20   examination is a very subjective thing?
21         A.    Correct.
22         Q.    As part of your education as a 
23   physician, you've learned the appropriate steps 
24   necessary to a complete breast exam; true?
25         A.    Correct.
0104
 1         Q.    As a health care provider, you would 
 2   have a better sense of a breast abnormality than 
 3   a patient?
 4               MS. SANDACZ:  Objection.
 5         A.    Not necessarily at all.  The patient 
 6   may feel something more than I could feel 
 7   something because she has a different perception 
 8   of where it is in the breast.
 9         Q.    Am I understanding you correctly 
10   that you would trust a patient to evaluate if a 
11   breast lump has gone away or not?
12         A.    If there was a breast lump there 
13   before and the patient says -- and my own 
14   understanding is that she feels something in the 
15   breast, and it disappears after her menstrual 
16   period -- if she presents feeling something in 
17   the menstrual cycle that I felt was related to 
18   the hormonal -- my view of the hormonal 
19   situation she's in, I would frequently tell a 
20   patient to see if she feels it, feels the same 
21   after her period. 
22               If she feels the same, I would 
23   always tell her to let me know.  If it's still 
24   there after the menstrual period, my own 
25   practice would be to send her to a breast 
0105
 1   surgeon.  If the patient feels that the breast 
 2   lump is gone, I would ask her to follow up if 
 3   she feels it again.
 4         Q.    Again, my understanding from what 
 5   you just testified is if the patient feels that 
 6   the breast lump has gone away, she does not need 
 7   to return to you?
 8               MS. SANDACZ:  Objection.  Go ahead.
 9         A.    Correct.
10         Q.    You wouldn't recommend a routine 
11   follow-up?  If a patient had a breast lump that 
12   you maybe didn't even feel or weren't sure was 
13   there or not, you would tell the patient to 
14   return if she felt the lump persisted?
15               MS. SANDACZ:  Objection.  Go ahead.
16         A.    Correct.
17         Q.    I'm not sure if I caught you before 
18   when you explained to me what a screening 
19   mammogram was, and I'm sorry, a diagnostic 
20   mammogram.
21         A.    I don't order the diagnostic 
22   mammograms, but my understanding of a diagnostic 
23   mammogram would be a much more coned down 
24   compression, specific area of the breast.
25         Q.    If a patient came to you with a 
0106
 1   breast lump and you felt that breast lump, you 
 2   would not take the step of going to a diagnostic 
 3   mammogram, but you would refer the patient to a 
 4   breast surgeon?
 5         A.    Correct.
 6         Q.    Are you aware of how Mrs. Berry came 
 7   to you in 2001, what the circumstances were?
 8         A.    No.  My feeling is, again, that Tony 
 9   Thomas had seen her, seen him, and because of 
10   that was referred to the practice.  Knowing that 
11   the sperm count -- this was 2001 -- knowing that 
12   the sperm count was very compromised, the 
13   patient may have then been referred to the 
14   practice by Tony Thomas.
15         Q.    Was Mrs. Berry ever accompanied by 
16   anyone to her visits?  Was she accompanied by 
17   anyone on her visits in 2001 through 2003?
18         A.    I know there was no one with her at 
19   that first visit, but I have no recollection of 
20   subsequent visits.
21         Q.    Did you ever recall meeting 
22   Mr. Berry?
23         A.    Not at all.
24         Q.    Do you ever recall meeting her 
25   mother, Francis Adams?
0107
 1         A.    Not at all.
 2         Q.    Do you remember Mrs. Berry coming to 
 3   your office with anybody?
 4         A.    Not at all.
 5         Q.    This is kind of redundant, but have 
 6   you ever met any of her family members?
 7         A.    Not to my recollection at all.
 8                       - - - - -
 9          (Thereupon, Plaintiff's Deposition
10           Exhibit 5 was marked for purposes
11                  of identification.)
12                       - - - - -
13         Q.    I want to go back to Mrs. Berry's 
14   obstetrical care beginning on March 11th, 2003.  
15   Is it fair to say that March 13th, 2003, is your 
16   encounter with Mrs. Berry as an OB patient?
17         A.    Correct.
18               MS. SANDACZ:  March 11th, just to be 
19   clear.
20               MS. PERSE:  Thank you.
21         Q.    I am looking at a three-page 
22   document.  Actually, I guess it's a five-page 
23   document that's identified as an ACOG antepartum 
24   record, and there's a form A, form B, form C 
25   which is page 3, form D which is page 4, and I 
0108
 1   have a form G.
 2         A.    So do I.
 3         Q.    Is there a form E that I'm 
 4   missing --
 5         A.    I'm not certain.
 6         Q.    -- in her record?
 7         A.    No.
 8         Q.    That's five pages.  I want you to 
 9   identify for me, if you will, that these are the 
10   same pages as what's in your record for 
11   Mrs. Berry as would be her obstetrical care 
12   record. 
13         A.    Correct.
14                       - - - - -
15          (Thereupon, Plaintiff's Deposition
16           Exhibit 6 was marked for purposes
17                  of identification.)
18                       - - - - -
19         Q.    Is this five-page document what is 
20   typically maintained on an obstetrical patient?
21         A.    In 2003, yes.
22         Q.    Let's go through the form A, if you 
23   will.  Well, I think we did identify it as 
24   form A.  Can you read for me the entries on this 
25   record?
0109
 1         A.    Some of them are mine; some of them 
 2   are not mine.
 3         Q.    Tell me which ones.
 4         A.    The date and the name is not my 
 5   writing.  My name at the top is not my writing.  
 6   The date of birth is not my writing. 
 7               I wrote across the LPN in terms of 
 8   occupation.  The father of the baby and contact 
 9   numbers are not my writing.  The past pregnancy, 
10   the zero with the two dark lines is my writing 
11   meaning she has not had any previous 
12   pregnancies.  And the medical history, I have a 
13   notation of a breast cyst, I have a notation of 
14   IVF, and frozen embryo transfer.
15         Q.    On this sheet under medical history, 
16   is it fair to say that actually there's 29 
17   entries that are typewritten pieces of 
18   historical information that you would ask a 
19   patient?
20         A.    Correct.
21         Q.    There's some entries next to each 
22   one of those, 1 through 29?
23         A.    Some of them.
24         Q.    How about if you tell me which ones 
25   do not have any entries.
0110
 1         A.    Illicit drugs/recreational drugs do 
 2   not have.
 3         Q.    Does that mean that there was -- 
 4   what does that mean to you?
 5         A.    To me it means that she hadn't used 
 6   any recreational drugs.
 7         Q.    Is there a notation that she gave 
 8   you a negative response?
 9         A.    No, but I would routinely ask the 
10   questions and just go through the list.
11         Q.    Is there anyplace else?
12         A.    There's no notation next to GYN 
13   surgery.
14         Q.    What does that mean to you?
15         A.    That she had not had any 
16   gynecological surgery in the past.
17         Q.    Entries number 1 through 15, 
18   diabetes to alcohol inclusive, you made 
19   notations next to those entries?
20         A.    Correct.
21         Q.    What were those notations?
22         A.    Just a dash.
23         Q.    What does that mean to you?
24         A.    That there's nothing significant in 
25   that history.
0111
 1         Q.    Is it fair to say that those were 
 2   negative responses?
 3         A.    Correct.  Well, nothing significant, 
 4   correct.
 5         Q.    So you made a notation identifying 
 6   that there is nothing significant in her medical 
 7   history with regards to those questions; 
 8   correct?
 9         A.    Correct.
10         Q.    Then moving to the second column of 
11   17 through 21, there's notations next to 17 
12   through 21; true?
13         A.    Correct.
14         Q.    Those notations are very similar to 
15   what's in the first column.  What are those?
16         A.    Same, similar, nothing significant 
17   in the past history there.
18         Q.    They are dashes?
19         A.    Correct.
20         Q.    Those were your entries?
21         A.    Correct.
22         Q.    Under gynecologic surgery, again, we 
23   established that you didn't record anything 
24   there?
25         A.    Correct.
0112
 1         Q.    Then on 23 there's a positive entry.  
 2   Is that your writing?
 3         A.    Correct.  I wrote the breast cysts.
 4         Q.    So you obtained a history from her?
 5         A.    She would have told me.
 6         Q.    24 through 26, again, you made 
 7   notations --
 8         A.    Correct.
 9         Q.    -- adjacent to those questions, and 
10   that notation indicates to you what?
11         A.    There was nothing significant in the 
12   past history related to those.
13         Q.    Then 27 you jotted down about IVF?
14         A.    Correct.
15         Q.    28 and 29, again, you made a 
16   notation?
17         A.    Correct.
18         Q.    Do you have any explanation as to 
19   why you didn't record anything in GYN surgery, 
20   illicit drugs, and you recorded it everywhere 
21   else?
22         A.    No, not at all.
23         Q.    Moving on to form B, tell me about 
24   form B.
25         A.    This is much more family history, 
0113
 1   genetic history.
 2         Q.    So under genetic screening and 
 3   counseling, you completed that section?
 4         A.    Correct.
 5         Q.    Are there any entries, this is 1 
 6   through 19, I guess, the question and answer 
 7   kind of thing with the patient; correct?
 8         A.    Correct.
 9         Q.    And I see that 16 and 18 are blank?
10         A.    16 is not, no.
11         Q.    I'm sorry, 18 and 19 
12         A.    Correct.
13         Q.    Why is that?
14         A.    Because, again, I would have known 
15   if she was on medication or not, and I would 
16   have made a notation elsewhere.  If I thought it 
17   was relevant to what I was doing, I would have 
18   made a notation which I did on the next page 
19   which says she was on some of the fertility 
20   drugs we use after in vitro.  That's why I would 
21   have asked these questions, and it's probably 
22   notated somewhere else.
23         Q.    In that circumstance the absence of 
24   the writing was because you had written it 
25   somewhere else; correct?
0114
 1         A.    Because I knew the answer.
 2         Q.    Then the any other, I suppose that 
 3   was kind of --
 4         A.    Nothing of significance.
 5         Q.    1 through 7, her responses to those 
 6   you documented with a yes or no?
 7         A.    No.
 8         Q.    And then under sickle cell disease 
 9   or trait you documented her response?
10         A.    Yes, and there's a notation 
11   underneath that that says aunts and uncles, and 
12   the patient would have been screened for sickle 
13   cell.
14         Q.    Then 9 through 11, again, you made 
15   notations as to what the patient's response was?
16         A.    Correct.
17         Q.    Her response was?
18         A.    No.
19         Q.    Then 12 through 17, there's notation 
20   as to her response?
21         A.    Correct.
22         Q.    Her response to each one of those 
23   questions was?
24         A.    My notation is there was nothing 
25   significant.
0115
 1         Q.    Under infection history did you make 
 2   any notations?
 3         A.    Where is infection history? 
 4               MS. SANDACZ:  (Indicating.)
 5         A.    There I did not make any notations.
 6         Q.    Did you ask those questions?
 7         A.    Absolutely.
 8         Q.    Tell me why you didn't put anything 
 9   in that section when you had put responses in 
10   the genetic screening section.
11         A.    I have no idea.  I mean, I don't 
12   document everything I ask her.  That's 
13   unnecessary documenting.  Just like I didn't 
14   sign it, either, but I asked the questions.
15         Q.    Now, in terms of initial physical 
16   examination, in that section where there's check 
17   boxes for normal and abnormal?
18         A.    Uh-huh.
19         Q.    Did you record anything under number 
20   one, HEENT?
21         A.    No.
22         Q.    Did you record anything under fundi?
23         A.    No.
24         Q.    Why don't you read for me where you 
25   put any positive notations.
0116
 1         A.    There's none.
 2         Q.    So did you put any notations for 
 3   anything with regards to thyroid exam?
 4         A.    There's no notations.
 5         Q.    And why is that?
 6         A.    Because I may not have notated 
 7   everything I did, but I would have done a full 
 8   examination.  I always would do a full 
 9   examination.
10         Q.    Tell me where the full 
11   examination --
12         A.    The full examination would not as an 
13   Ob/Gyn have included head, neck, fundi, ear 
14   exam.  A full examination for me would be a 
15   breast exam, an abdominal exam, and an internal 
16   vaginal exam.  It would not have been a 
17   peripheral nerves, anything neurological, ENT, 
18   surgical, vascular.  It would have been what's 
19   relevant to me.  That's why these things are 
20   written down there, but they are not necessarily 
21   done.
22         Q.    So is there any record here that you 
23   did a -- well, tell me what again is included in 
24   an initial OB exam.
25         A.    I would do a thyroid exam, breast 
0117
 1   exam, abdominal exam, an internal pelvic 
 2   examination with or without an ultrasound, with 
 3   or without a Pap, with or without a cervical 
 4   culture.
 5         Q.    Is there any documentation in the 
 6   ACOG antepartum record that a cervical exam was 
 7   done?
 8               MS. SANDACZ:  Anywhere?
 9               MS. PERSE:  Anywhere.
10         A.    Correct.  There's a record that I 
11   did a cervical exam.
12         Q.    Where is that?
13         A.    Form C.
14         Q.    Tell me --
15         A.    I wrote there long, thick and 
16   enclosed.
17         Q.    Just to be clear, I want to make 
18   sure I'm looking at the same thing you are.
19         A.    Form C.
20         Q.    That was for what visit?
21         A.    That first obstetrical visit.
22         Q.    The other parts of your examination 
23   for the March 11th?
24         A.    Was the other parts on this page.
25         Q.    That are recorded?
0118
 1         A.    That are recorded would have been a 
 2   fundal height, the fetal heart.  The blood 
 3   pressure I would not have recorded.  The weight 
 4   I would not have done.  The culture and 
 5   sensitivity I would not have recorded.  I would 
 6   have told her when the next appointment would 
 7   be, and I initialed, and I also wrote a notation 
 8   that she had two sacs.
 9         Q.    So you did effectively sign off on 
10   the March 11th visit with those initials of BP; 
11   correct?
12         A.    Correct.
13         Q.    That would include form A and form 
14   B?
15         A.    Correct.
16         Q.    Do you have anywhere in this ACOG 
17   antepartum record a documentation as to the 
18   thyroid exam?
19         A.    No.
20         Q.    Is it fair to say that the only 
21   thing that is recorded with regards to the 
22   physical examination would be the fundal height 
23   and the cervix exam?
24         A.    Correct.
25         Q.    Was there anything particularly 
0119
 1   abnormal about the fundal height or the cervix 
 2   exam?
 3         A.    No.  I knew she had a fibroid in the 
 4   exam.  There's a notation at the top, and I 
 5   would have known because of previous history 
 6   that she had a large fibroid, and there's a 
 7   notation that she had a large fibroid.  In terms 
 8   of the uterus itself or the feeling of how big 
 9   the uterus was without that attached, I made a 
10   notation it was eight weeks in size.
11         Q.    That was consistent with her dates?
12         A.    By dates she was eight weeks and two 
13   days.
14         Q.    So you documented those even though 
15   there was nothing particularly abnormal about 
16   those findings; correct?
17         A.    Correct.
18         Q.    What medications was she taking at 
19   the time of your evaluation?
20         A.    Estrogen, progesterone, and folic 
21   acid.
22         Q.    There's a notation next to 
23   progesterone?
24         A.    That she discontinued it at some 
25   point.  That's not my writing.
0120
 1         Q.    That's not your writing?
 2         A.    No.
 3         Q.    I'm sorry, the DC'd is not your 
 4   writing?
 5         A.    It is not my writing.
 6         Q.    Tell me what is your writing.
 7         A.    Estrogen, progesterone, and folic 
 8   acid.
 9         Q.    Under problems and plans, is that 
10   your writing?
11         A.    I see problems.  I don't see plans.
12         Q.    I'm seeing problem/plans.
13         A.    That her age is 34 at this time, and 
14   I wrote there frozen embryo transfer, large 
15   fibroid, and then the medication list.  That's 
16   my writing.
17         Q.    This, just to identify for the 
18   record, is form C of the antepartum record?
19         A.    Correct.
20         Q.    Are there any other entries that 
21   you've made on form C of the ACOG antepartum 
22   record?
23         A.    4-8 there's a notation and 4-28 
24   there's a notation.
25         Q.    Are those examinations, if you will, 
0121
 1   of Mrs. Berry for those dates?
 2         A.    Correct.
 3         Q.    Can you read for me your finding?
 4         A.    4-8, somebody, the nurse, would have 
 5   written 12 weeks and four days.  It's not my 
 6   writing.  Fundal height was 14 centimeters.  
 7   Presentation was unknown.  There was a positive 
 8   heart and ultrasound.  I did it twice there.  
 9   Also, fetal movements would have been 
10   documented, not by patient feeling the movements 
11   but what I saw on the ultrasound.  I did not 
12   check her cervix. 
13               The blood pressure, weight, urine 
14   was done by somebody else.  And then I have a 
15   notation that four weeks to follow-up, and I 
16   signed my name.  I also have a notation that she 
17   still has nausea, and there's a notation 
18   actually made four weeks before that she would 
19   stop her estrogen and progesterone at this 
20   point.  She was 12 weeks.
21         Q.    Does that complete your entries on 
22   form C?
23         A.    The next line is four weeks later.  
24   She was now 15 weeks and three days.  I thought 
25   the uterus was at least 16 plus size in terms of 
0122
 1   gestational age.  The presentation is unknown.  
 2   I heard the baby's heart.  She hasn't felt the 
 3   baby move.  No signs of premature labor.  I 
 4   never checked her cervix.  My notation is four 
 5   week appointment and also to do a quadruple 
 6   check at that visit and an ultrasound at the 
 7   next visit.
 8         Q.    Now, with respect to the quadruple 
 9   check, was that ordered by you through your 
10   office?
11         A.    I would have asked the patient if 
12   she wanted it.  If she wanted a quadruple check, 
13   the nurses would have ordered the test.
14         Q.    Are you aware whether you received 
15   those test results?
16         A.    On recollection, no, but I know I 
17   did receive them, and I believe they were 
18   absolutely abnormal and the patient had an 
19   ultrasound based on that.
20         Q.    You ordered?
21         A.    A quadruple check.
22         Q.    Then did you order the obstetrical 
23   ultrasound?  No, not the obstetrical ultrasound.
24         A.    No.  My nurse would have ordered it.  
25   There was a notation 4-30-2003, patient notified 
0123
 1   of positive quad check.  Will call for follow-up 
 2   appointment, Mary Elton, R.N., form G.
 3         Q.    I'm going to show you what I have in 
 4   the record as to the prenatal screening tests.  
 5   Is there any writing on there that is yours?
 6         A.    That's my writing.  I've underlined 
 7   open neural tube defect.  I've written for 
 8   ultrasound 5-2/3.
 9         Q.    So then that's where you would have 
10   recommended an ultrasound?
11         A.    In fact, the recommendation had been 
12   done before that.  The patient may -- the office 
13   may have been called that she had an abnormal 
14   quadruple check, but that would have arrived 
15   afterwards.  That would have come by mail. 
16               The patient was notified of a 
17   positive quad check 4-30.  So I don't know.  
18   This would generally -- this would have been 
19   called to us, and we could have called the 
20   patient.  It may have arrived April 29th.
21         Q.    The report date on that sheet you 
22   just read is April 29th?
23         A.    Yeah, maybe.
24         Q.    Is it fair to say that you were 
25   aware of the abnormal quad and you were aware 
0124
 1   that there was going to be a May 2nd ultrasound?
 2         A.    Correct.
 3         Q.    And you were still managing 
 4   Mrs. Berry?
 5         A.    At that point I didn't know that she 
 6   was now going down to University Hospitals, so 
 7   yeah, I would have managed her at that point.
 8         Q.    So it was sometime after the 4-28 
 9   visit and Mrs. Berry was still a patient of 
10   yours; correct?
11         A.    Correct.
12         Q.    I'm going to hand you what I believe 
13   to be the medical release authorization from 
14   your office to release your care to 
15   Dr. Thompson; is that correct?
16         A.    Correct.
17         Q.    Does that identify on there any time 
18   when the patient was being transferred or was 
19   going to be next seen at Dr. Thompson's office?
20         A.    It looks like she's written see as 
21   soon as possible for an appointment 
22   June 22nd -- June 2nd.
23         Q.    When you say she has written, you 
24   believe that to be Rhonda's signature or 
25   Mrs. Berry's signature?
0125
 1         A.    There's no signature.  It just says 
 2   thank you.
 3         Q.    Is there anything on that record 
 4   that is yours or of your writing?
 5         A.    Nothing.
 6         Q.    You made no entries?
 7         A.    No entries.
 8         Q.    So once you released your medical 
 9   records, it's fair to say that you transferred 
10   the care --
11         A.    Correct.
12         Q.    -- to Dr. Thompson?
13         A.    Correct.
14         Q.    Or to the new obstetrician?
15         A.    Correct.
16         Q.    And you weren't responsible for any 
17   further obstetrical care of Mrs. Berry?  You did 
18   not deliver Mrs. Berry; is that true?
19         A.    Correct.
20         Q.    I think we established the next time 
21   Mrs. Berry saw you was in June of 2004 as a new 
22   gynecology patient.
23         A.    Correct.
24         Q.    I'm pulling what I believe to be 
25   some entries from your records, and I think 
0126
 1   we're looking at the same thing here, but I want 
 2   to show it to you to identify it because I need 
 3   you to read it for me.
 4         A.    It's the same page.
 5         Q.    This is identified, again, as Rhonda 
 6   Berry's record, and on the top left-hand corner 
 7   or mid left is a square box that has several 
 8   notations in it.  Is that the first page of the 
 9   record for your office visit on June 21st, 2004?
10         A.    As far as I can see, yes.
11         Q.    We'll mark this as an exhibit.
12                       - - - - -
13          (Thereupon, Plaintiff's Deposition
14           Exhibit 7 was marked for purposes
15                  of identification.)
16                       - - - - -
17         Q.    How about if we review this.  The 
18   first square box has entries there.  Did you 
19   make those entries?
20         A.    Those were done by the nurse; the 
21   date, her age, her weight, her height, blood 
22   pressure, pulse, last menstrual period.  She 
23   said she never had a mammogram.  Pap smear, when 
24   the last Pap smear was.  The Pap would have been 
25   done that day, so the nurse made a notation 
0127
 1   we're going to do the Pap that day.  It has who 
 2   her primary care physician is, and she's on no 
 3   medication. 
 4               Then the Cleveland Clinic has a 
 5   screening for everybody in terms of risk of 
 6   allergies, pain, safety at home, and those are 
 7   notations done by the nurse. 
 8               My note says her cycles are heavy.  
 9   The only complaint is -- that's part of the SOAP 
10   note.  That's the S.  Cycles are heavy first two 
11   days.  She bleeds for a total of five days.  Her 
12   cycles are every 28 to 30 days.  She has some 
13   pressure. 
14               I wrote on examination the vital 
15   signs are stable.  Her breasts were normal.  The 
16   vaginal exam, the vulva and vagina was normal.  
17   The cervix was normal.  The uterus felt about 12 
18   plus weeks.  Multifibroid uterus.  The axillary 
19   regions felt normal.  Assessed her having 
20   fibroids with menorrhagia.  I did a Pap, 
21   suggested an ultrasound, and then after the 
22   ultrasound to discuss the possibility of a 
23   myomectomy. 
24               My next notation is a telephone call 
25   approximately three weeks later.  It says 
0128
 1   ultrasound, three fibroids 9 by 8, 3 by 5, 24 by 
 2   23 millimeters.  Discussed in detail and advise 
 3   myomectomy.
 4         Q.    Your SOAP note, do you have an S 
 5   adjacent to it on your note?
 6         A.    There's no S there, but it's a SOAP 
 7   note.  Subjective complaint, objective findings, 
 8   so it's a SOAP note.
 9         Q.    You don't have that identified as 
10   the patient's complaint?
11         A.    Yes.  That's my notation is that her 
12   cycles are heavy first two days.  She would have 
13   told me that.  I wouldn't have known that.  
14   That's her subjective assessment.
15         Q.    You have an O next to the objective?
16         A.    I don't have an O.  There's no O 
17   there.  It says on examination.
18         Q.    So the A and P, did I read that 
19   correctly?
20         A.    That's correct.
21         Q.    Let's move on to the next page that 
22   I have for your record.  Let's go back to the 
23   last page.  I'm sorry.  Under your objective 
24   exam --
25         A.    Correct.
0129
 1         Q.    -- you wrote down the things that 
 2   you checked, is that correct, the things that 
 3   you examined?
 4         A.    Correct.
 5         Q.    Did you examine her thyroid?
 6         A.    No.
 7         Q.    Because it's not recorded?
 8         A.    Correct.
 9         Q.    So you examined her breasts at that 
10   time, her chest?  I'm sorry, I know --
11         A.    I checked and wrote abdomen which 
12   was normal.  Vaginal examination, vulva and 
13   vagina, cervix, uterus, and axillary regions.
14         Q.    On the abdominal exam, did you 
15   appreciate the fibroid?
16         A.    No.  I didn't make a notation there.  
17   But on the vaginal examination I thought it was 
18   about the 12 week size.
19         Q.    Now moving to the next page in your 
20   record, are there entries?  How about if we 
21   identify this.
22         A.    7-13-04.
23         Q.    That's in the upper right-hand 
24   corner?
25         A.    Correct.  It says consult regarding 
0130
 1   fibroids.  Then the nurse's note says when her 
 2   last menstrual period was.  I wrote long 
 3   discussion regarding fibroids.  All options 
 4   discussed in detail.  Risk of Lupron, 
 5   myomectomy, exploratory laparotomy, blood loss 
 6   and transfusion. 
 7               Plan, will try Lupron 11.25 
 8   milligrams for three months and for surgery 
 9   during third month.  May do ultrasound to see if 
10   we can do laparoscopically.  All risks, 
11   benefits, and alternatives discussed.  Patient 
12   agrees.
13         Q.    This was a second visit subsequent 
14   to your well woman examination?
15         A.    Correct.  This was a consultation.
16         Q.    On July 13th?
17         A.    Correct.
18         Q.    Are there any other notations about 
19   a patient's complaints on this record?
20         A.    From me? 
21         Q.    Correct. 
22         A.    No other notations from me.  There 
23   are notations from my nurses from 7-13 all the 
24   way through to 9-3.
25         Q.    On 7-13 are they the same nurse, 
0131
 1   those two entries?
 2         A.    I'm on 7-13.  Are they the same?  
 3   7-13 is Debbie Bovitt, 7-15 is also Debbie 
 4   Bovitt.  In fact, all of them are Debbie Bovitt 
 5   who was my nurse at that time.
 6         Q.    Going back to the last page, 
 7   Plaintiff's Exhibit 7, is there any 
 8   identification as to what nurse would have 
 9   filled in that square box?
10         A.    There's a signature, but I don't 
11   know who it is.
12         Q.    Are those initials maybe?
13         A.    They look like initials.  I mean, I 
14   could find out who it is if you want to know.  I 
15   can imagine, but I can't tell you for sure.
16         Q.    Is it fair to say that on this 7-13 
17   consult visit the subsequent entries are with 
18   respect to scheduling surgery?
19         A.    Correct.
20         Q.    And none of those include your 
21   entries; correct?
22         A.    Correct.
23         Q.    Then the next page that I have in 
24   your record is 9-17-04?
25         A.    The next page in my record is my 
0132
 1   surgical notes.
 2         Q.    That surgery was done where?
 3         A.    Hillcrest Hospital.
 4         Q.    When was that done?
 5         A.    9-29-2004.
 6         Q.    If we move on to the next page of 
 7   the progress notes.
 8         A.    9-17-04 would be the next one.
 9         Q.    Are there any entries on that page?
10         A.    There's at the top a request which 
11   was prior to surgery requesting claim forms for 
12   medical insurance, I would imagine, and I have a 
13   notation exploratory laparotomy, adhesiolysis, 
14   massive fibroid times one, and one small fibroid 
15   as well.  I wrote extremely large fibroid 
16   occupying most of the uterus.  Removed without 
17   complications.  Sent to pathology. 
18               10-11-04, somebody wrote patient for 
19   follow-up, same signature.  I checked her wound 
20   and explained her surgery.  10-15-04 is a note 
21   from the nurse.  Patient calls requesting proof 
22   of surgery.  Copy of surgery report made.  
23   Patient to pick up.
24         Q.    That is Debbie?
25         A.    Debbie Bovitt .  Why that was done, 
0133
 1   I don't know.  And then 11-9, three or four 
 2   weeks later, complaining of feeling a lump in 
 3   the left breast, tender, denies redness.  Blood 
 4   pressure was taken, and that's the nurse's 
 5   notation.
 6         Q.    Do you know who that nurse is?
 7         A.    There's no notation.  There's no 
 8   signature.  I don't know. 
 9               And then I wrote in the margin that 
10   she's 35 years old.  I wrote complaining of 
11   discomfort in the left breast for two days, no 
12   discharge, no blood.  I would have examined both 
13   her breasts.  Right feels normal. Fibrocystic in 
14   the left.  I made a diagram.  I wrote 
15   generalized fullness, nothing discrete. 
16               I put a question mark, possibly 
17   fibrocystic, no lymph nodes.  And I wrote there, 
18   which I explained to you earlier is what I 
19   always do, to see a breast surgeon.  And that 
20   day my nurse would have made a call to the 
21   breast center to see Dr. Lee.
22         Q.    On that examination is there any 
23   notation with regards to an axillary exam?
24         A.    I wrote there are no lymph nodes.
25         Q.    Very good.  Anything with regards to 
0134
 1   a visual inspection?
 2         A.    No, but it's part of the breast 
 3   exam.
 4                       - - - - -
 5          (Thereupon, Plaintiff's Deposition
 6       Exhibits 8 and 9 were marked for purposes
 7                  of identification.)
 8                       - - - - -
 9         Q.    Do you recall any of those visits?  
10   June 21st, do you recall Mrs. Berry on the 
11   June 21st visit?
12         A.    No.
13         Q.    No recollection whatsoever?
14         A.    No.
15         Q.    Do you recall at all what Mrs. Berry 
16   looked like?
17         A.    Yeah, somewhat.  I could probably 
18   pick her out of a line, yeah.  I try to remember 
19   every one of my patients, but I can't remember 
20   individual visits.  I remember what she looked 
21   like.
22         Q.    Do you know her ethnic background?
23         A.    I know she is African-American.
24         Q.    Do you recall Mrs. Berry from the 
25   July 13th visit?
0135
 1         A.    No.
 2         Q.    Do you recall Mrs. Berry from the -- 
 3   I want to get this straight -- the November 9th, 
 4   2004, visit?
 5         A.    No.
 6         Q.    Subsequent to that November 9th, 
 7   2004, visit, did you have any other interaction 
 8   with Mrs. Berry?
 9         A.    I'd have to look through the chart, 
10   but not that I can -- there's no notation of 
11   mine at all.  There are notations from my nurses 
12   but, no, none of my notations.
13         Q.    While you're on the subject, you 
14   were referring to the 11-9 entry?
15         A.    11-9-04.
16         Q.    The 11-9-2004, who made that 
17   notation?
18         A.    That's Debbie Bovitt.  That would 
19   have been at the same visit, and we got her in 
20   to see Dr. Lee actually that day.  The patient 
21   wanted a different appointment, and so Debbie 
22   got her an appointment five days, six days 
23   later, seven days later.
24         Q.    Do you know where that visit of 
25   11-16 took place?
0136
 1         A.    No idea other than it's Dr. Lee.  
 2   Kathy Lee is in this building, but she may be 
 3   elsewhere.  I really don't know.
 4         Q.    Any other entries on that -- let's 
 5   review the entries.  On November 15, 2004, 
 6   there's an entry that's from --
 7         A.    Debbie Bovitt returned patient's 
 8   call.  Questions answered.  Something ultrasound 
 9   of breast today.  I don't know what RT is. 
10               11-17, patient becoming very upset.  
11   Had breast ultrasound and biopsy yesterday with 
12   Dr. Jeffers.  Doctor expressed to patient 
13   possibility of breast lump being cancer and 
14   ruled out other possibilities.  Patient was told 
15   she would be called right away with biopsy 
16   results.  Explained to patient that biopsy 
17   results may take several days to get.  She will 
18   be called with results as soon as she receives 
19   them.  She made a note I was advised. 
20               Lynn Davis I think is the 
21   coordinator with the breast center.  My nurse 
22   knowing that the patient was upset, she may have 
23   called the breast center to tell them the 
24   patient would like the results as soon as 
25   possible.
0137
 1         Q.    Are you familiar with Dr. Jeffers?
 2         A.    Not at all.
 3         Q.    Does he work here at the breast 
 4   center in Beachwood?
 5         A.    No idea.
 6         Q.    You're familiar with Dr. Lee as 
 7   working here at the breast center here in 
 8   Beachwood?
 9         A.    Correct.
10         Q.    Who was that that made that entry?
11         A.    Mary Elton.
12         Q.    Do you have a recollection of the 
13   nurse speaking to you about Mrs. Berry?
14         A.    No.
15         Q.    On the next visit?
16         A.    11-17, returned patient's call.  
17   Patient remains upset concerning questions and 
18   concerns same as above.  Another call to Lynn 
19   Davis by me.  Will follow up with Dr. Peskin in 
20   a.m.  Patient reassured she's in good hands and 
21   will be notified as soon as possible. There's no 
22   notation we saw her the next day. 
23               Patient calls to update us on 
24   treatment and plan of care, to start 
25   chemotherapy the 22nd, to have surgery in March, 
0138
 1   will follow up with radiation.  States she is 
 2   doing well and feeling very positive.  Will 
 3   inform me, Debbie Bovitt.
 4         Q.    The last paragraph you read was 
 5   dated?
 6         A.    11-26.
 7         Q.    Do you remember speaking with Debbie 
 8   Bovitt on either the 17th or the 26th?
 9         A.    No.  I don't have a recollection of 
10   it.  It was three years ago.
11         Q.    You have no recollection of even 
12   speaking to Mrs. Berry on the phone maybe the 
13   following day?
14         A.    If I had spoken to her, I would have 
15   made a notation.
16                       - - - - -
17          (Thereupon, Plaintiff's Deposition
18          Exhibit 10 was marked for purposes
19                  of identification.)
20                       - - - - -
21         Q.    We're marking that page Exhibit 10.  
22   I have one more page from your record that 
23   followed that last entry in my record, but I'll 
24   have you take a look at that.
25         A.    It's the same.
0139
 1         Q.    Can you tell who wrote that record?
 2         A.    I can't tell you for sure.  It looks 
 3   like Debbie Bovitt's writing.
 4         Q.    Now, I guess we should identify 
 5   this.  It appear it's a progress note sheet, and 
 6   it's got a message.
 7         A.    Correct.  Xeroxed into the chart, 
 8   correct.
 9         Q.    You believe that to be Debbie Bovitt 
10   possibly?
11               MR. PERRY:  Is that sticking up? 
12               MS. SANDACZ:  (Indicating.)
13         Q.    Do you recall reading this?
14         A.    No, not at all.
15         Q.    You didn't countersign this or 
16   anything; did you?
17         A.    Not at all.
18         Q.    Do you want to tell me what that 
19   note indicates?
20         A.    I can read it just like you.  Rhonda 
21   called, told you to tell me how wonderful you 
22   are for having her get mammogram at 35.  Starts 
23   chemo 12/2.  Surgery in March, then radiation.  
24   Sounds positive and well.
25         Q.    Does it appear that that note was 
0140
 1   written at the same time?
 2         A.    I couldn't tell you, and I don't 
 3   know where the original is.  This could be a 
 4   Xerox of the original.  I don't know what's in 
 5   the chart.  I don't have the original.  
 6               THE WITNESS:  Is this the original?
 7               MS. SANDACZ:  I thought it was.
 8         A.    I don't know if this was the 
 9   original.  I don't have a clue.  This may not be 
10   the original.
11                       - - - - -
12          (Thereupon, Plaintiff's Deposition
13          Exhibit 11 was marked for purposes
14                  of identification.)
15                       - - - - -
16         Q.    Where did Mrs. Berry have her 
17   myomectomy?
18         A.    Hillcrest Hospital.
19         Q.    Did you see Mr. Berry during that 
20   hospitalization?
21         A.    I'd need the hospital record to see.
22               MS. PERSE:  Do you have those?
23               MS. SANDACZ:  I do.  I have a copy 
24   of them. 
25         Q.    I'm referring other than to the 
0141
 1   operative note.  I'm just looking to see if 
 2   there are any entries in that record that you 
 3   can identify for me that are your entries other 
 4   than orders.  I'm referring specifically to the 
 5   progress notes.
 6         A.    Postoperative day number one she was 
 7   seen by Julian Peskin.  Postoperative day number 
 8   two she was seen by I think that's Kevin Muise, 
 9   but I'm not certain.  I left Kevin Muise out of 
10   the whole group of physicians, by the way.  I 
11   forgot.
12         Q.    I'll tell him.
13         A.    You can go ahead.  And, no, there's 
14   no notation that I saw her, but I have to say I 
15   often pop in at night and see the patients, but 
16   I don't necessarily make notes when I see them 
17   at night.
18         Q.    She was an in-patient?
19         A.    9-30 to 10-1.  She was DC'd home, 
20   follow-up in the office 10-1-04.
21         Q.    Very good.  I want to verify that 
22   there's one other note that I pulled out of that 
23   record that I think is your writing.
24         A.    That's the operative note, yes.  
25   Exploratory laparotomy, multiple myomectomy.  I 
0142
 1   wrote same, very, very large fibroid posterior, 
 2   major pelvic adhesions.  Multiple myomectomy, 
 3   exploratory laparotomy, adhesiolysis.  General 
 4   anesthesia with intubation.  Fluids with 
 5   lactated Ringer's.  Blood loss less than 500 
 6   cc's, Foley for drain.  Specimens, large fibroid 
 7   times one and one small fibroid.  Findings, I 
 8   wrote see dictated op report.  Complications, 
 9   nil, and I signed it.
10         Q.    I'm just going to put it in the 
11   record just so we have your writing.  We'll mark 
12   that.
13                       - - - - -
14          (Thereupon, Plaintiff's Deposition
15          Exhibit 12 was marked for purposes
16                  of identification.)
17                       - - - - -
18         Q.    Earlier we talked about breast exams 
19   as part of the initial OB and/or gynecologic 
20   examinations.
21         A.    Correct.
22         Q.    Is it a fair statement that breast 
23   examinations should be part of a well woman 
24   examination?  Is that true?
25               MS. SANDACZ:  Objection.
0143
 1               MR. KRAUSE:  Objection.
 2               MR. PERRY:  Objection.
 3         A.    Correct.
 4         Q.    A breast examination should also be 
 5   part of an initial OB visit?
 6               MR. KRAUSE:  Objection.
 7               MR. PERRY:  Objection.
 8         A.    For myself I do it, so yes.
 9         Q.    You're not aware of any 
10   standardization or guidelines with regards to 
11   that?
12         A.    Not at all.
13         Q.    Would you have any reason to 
14   disagree if a professional organization such as 
15   the American College would set forth a guideline 
16   establishing that a breast examination should be 
17   part of an initial OB examination?
18               MS. SANDACZ:  Objection.
19               MR. KRAUSE:  Objection to the form 
20   of the question.
21               MR. PERRY:  Objection.
22         A.    Would I disagree with them?
23         Q.    Yes.
24         A.    No.  It's my feeling that it should 
25   be part of a routine gynecological exam or a 
0144
 1   first obstetrical visit.  I would agree with 
 2   that.
 3         Q.    The failure to do a breast 
 4   examination on an initial obstetrical 
 5   examination would be below acceptable standards?
 6               MS. SANDACZ:  Objection to the 
 7   vagueness of the question.  Go ahead.
 8               MR. KRAUSE:  Objection.
 9               MR. PERRY:  Objection.
10         A.    I don't know what the standards are, 
11   so I can't tell you if it's below acceptable 
12   standards.  My own bias after doing this for 
13   many years is I always do an examination because 
14   I feel it's important at that obstetrical 
15   examination to do an examination, but I don't 
16   know what the guidelines are.
17         Q.    I'm going to show you something.  
18   Are you familiar with ACOG Committee Opinions?
19         A.    I've seen them.
20         Q.    Would you say that you practice by 
21   ACOG guidelines?
22               MS. SANDACZ:  Objection.  All of 
23   them?
24               MR. KRAUSE:  Objection.
25               MR. PERRY:  Objection.
0145
 1         A.    I read everything, and I modify my 
 2   care of the patient according to what I feel is 
 3   appropriate.
 4         Q.    I'm going to show you --
 5               MR. KRAUSE:  Can we see them before 
 6   you start questioning him? 
 7               MS. PERSE:  (Indicating.)  I'll 
 8   attach it as an exhibit.
 9               MS. SANDACZ:  That's fine.  Thank 
10   you.
11         Q.    Are you familiar with ACOG Committee 
12   Opinions?
13         A.    I read them.
14         Q.    You read them.  Are you provided 
15   them when they come out?
16         A.    They come out generally in the 
17   journal.  Now things are sometimes different.  
18   They are sometimes part of the actual journal, 
19   so when I read through the journals, I see if 
20   they are there.  I read them; not all of them.
21         Q.    When you say journals?
22         A.    The American College Journals.
23         Q.    That would be the Green Journal?
24         A.    I think it's the Green Journal.  
25   They all have their own colors.
0146
 1         Q.    Let me show this to you.  Have you 
 2   ever seen anything like that?
 3         A.    I've never read this one, no.
 4         Q.    Just for the record, you spent a 
 5   couple minutes taking a look at what I just 
 6   handed you which is a Committee Opinion?
 7         A.    I glanced through it.
 8         Q.    I understand.  This Committee 
 9   Opinion, is there any other way to identify it?  
10   It's Number 186.
11         A.    186, September 1997.
12         Q.    When those Committee Opinions come 
13   out, is it fair to say that that is the opinion 
14   until the College changes it?
15               MR. PERRY:  Objection.
16               MS. SANDACZ:  Objection.  Go ahead.
17         A.    It's the opinion of the people 
18   writing this.  That is what they feel should be 
19   done at an examination, correct.
20         Q.    Who writes those?
21         A.    I have no idea.  This could be a 
22   conglomerate of many people.  It could be one 
23   person.  I have no idea.
24         Q.    But the ACOG organization supports 
25   that opinion, and they put together a committee, 
0147
 1   shall I say, of specialists to make some 
 2   recommendations?
 3               MS. SANDACZ:  Objection.
 4               MR. KRAUSE:  Objection.
 5               MR. PERRY:  Objection.
 6         A.    I have no idea.  You'd have to ask 
 7   ACOG.
 8         Q.    Reading from the document, it 
 9   identifies that the American College of 
10   Obstetrics and Gynecology (ACOG) has adopted the 
11   goals of assisting in educating obstetricians 
12   and gynecologists in the diagnosis and treatment 
13   of benign breast disease and in reducing 
14   mortality from breast cancer.  Would you have 
15   any reason to disagree with that statement?
16         A.    No.
17         Q.    And then the following sentence in 
18   the first paragraph is, as an initial step 
19   toward these goals, ACOG has developed the 
20   following guidelines for the early diagnosis of 
21   breast disease, and then they set forth seven 
22   recommendations.
23         A.    Correct.
24         Q.    Their recommendations, would you 
25   have any reason to disagree with their first 
0148
 1   recommendation, a breast examination by visual 
 2   examination and palpation should be an integral 
 3   part of initial obstetric and all complete 
 4   gynecologic examinations?
 5               MS. SANDACZ:  Objection.
 6               MR. KRAUSE:  Objection.
 7               MR. PERRY:  Objection.
 8         A.    I'd have to read it myself.
 9         Q.    If you want to keep that copy, 
10   that's fine.
11         A.    I would not disagree with it at all.
12         Q.    Under subset number two, patients 
13   should be instructed in the technique of 
14   life-long periodic self-examination of the 
15   breast and informed of the importance of 
16   self-examination?
17         A.    I would not disagree with that.
18         Q.    The third would be, patients should 
19   be encouraged to undergo screening by 
20   mammography in accordance with ACOG guidelines.
21         A.    I would disagree with that.  There 
22   are other guidelines that may be more 
23   appropriate depending on the patient.
24         Q.    You will disagree?
25               MS. SANDACZ:  Objection.
0149
 1               MR. KRAUSE:  Objection.
 2         A.    I wouldn't disagree, but to me 
 3   that's not completely correct.  There are other 
 4   guidelines that may be more appropriate 
 5   depending on the patient.
 6         Q.    That subset three goes on to say, 
 7   earlier or more frequent screening is 
 8   recommended for women who have had breast cancer 
 9   or who have a first-degree relative (i.e., 
10   mother, sister, or daughter) or multiple other 
11   relatives who have a history of premenopausal 
12   breast and ovarian cancer.
13         A.    Correct.
14         Q.    Does that help you support that 
15   guideline?
16               MS. SANDACZ:  Objection.  Go ahead.
17               MR. KRAUSE:  Objection.
18               MR. PERRY:  Objection.
19         A.    It helps, but it isn't a complete 
20   history.  Because if the specific guidelines are 
21   to do a mammogram at 35 and if I felt the 
22   mammogram would be necessary at 30, I wouldn't 
23   be following the guidelines, but I would still 
24   do the mammogram at 30.  You have to take the 
25   patient into account and the patient's history 
0150
 1   and everything else.
 2         Q.    This refers specifically to 
 3   screening mammography; true?
 4         A.    True.
 5         Q.    Not diagnostic mammography?
 6         A.    Correct.
 7         Q.    I'm not sure if this says -- help me 
 8   out here.  Does this statement specifically say 
 9   what the ACOG guideline is with regard to the 
10   age?
11         A.    It doesn't.  I would disagree 
12   completely with number four, that we should 
13   perform diagnostic procedures.  I wouldn't do 
14   diagnostic procedures for a breast exam.
15         Q.    So number four, 
16   obstetrician-gynecologists should perform 
17   diagnostic procedures when indicated you 
18   disagree with.  Can you cite me to any 
19   literature?
20         A.    No, but I know I would not do a fine 
21   needle aspiration which is in my view a 
22   diagnostic procedure on a patient.  So, again, 
23   that's what I said right at the beginning.  I 
24   use all of these in my education, but they are 
25   part of the education process, and that's all 
0151
 1   that they are.
 2         Q.    Number five, when indicated 
 3   referrals should be made to physicians who 
 4   specialize in the diagnosis and treatment of the 
 5   type of breast disease that is suspected.  You 
 6   would agree with that; true?
 7         A.    100 percent.
 8         Q.    Would you have any reason to 
 9   disagree with number six?
10         A.    No.
11         Q.    And number seven, a persistent, 
12   palpable breast mass requires evaluation, would 
13   you agree with that?
14         A.    Correct.
15         Q.    As an obstetrician-gynecologist, how 
16   would you determine if a breast lump is 
17   persistently palpable?
18         A.    Based on my examination or the 
19   patient's examination.
20         Q.    Or is it or and?
21         A.    Or.
22         Q.    So you would substitute the 
23   patient's examination for a clinician's 
24   examination; is that true?
25               MS. SANDACZ:  Objection.
0152
 1         A.    No, not at all.
 2         Q.    But the patient can determine 
 3   whether it's persistent or not?
 4         A.    The patient who feels, and I said 
 5   this earlier, if a patient feels that a breast 
 6   lump has disappeared after a menstrual period, 
 7   it was there before the period but disappeared 
 8   after the period, they would not need to be 
 9   reevaluated by myself. 
10               If it didn't disappear and the 
11   patient was worried or it returned or kept on 
12   recurring, I absolutely would suggest that she 
13   get further follow-up.
14         Q.    The paragraph goes on to discuss 
15   ultrasound and cyst aspiration.  You would 
16   disagree?  You do not proceed with that 
17   evaluation; is that a fair statement?
18         A.    Correct.  I personally wouldn't do 
19   that at all ever.
20         Q.    Do you disagree with that statement?
21               MS. SANDACZ:  Objection.  Go ahead.
22         A.    It doesn't say who to do it, so it's 
23   hard for me to disagree.  It doesn't say the 
24   gynecologist needs to do it.  It just says it 
25   needs to be further evaluated.  So, yes, it does 
0153
 1   if it persists need to be evaluated, but it 
 2   doesn't say who needs to do it.  So I wouldn't 
 3   disagree with that.
 4         Q.    I understand.  Number eight, when a 
 5   patient is referred to another physician for the 
 6   management of a breast disorder, there are some 
 7   recommendations with regards to that.  Is that 
 8   clear or not?
 9         A.    Sort of.  I can see it.
10               MS. SANDACZ:  I didn't know if it 
11   was a number eight.
12         A.    You can see it.
13               MS. SANDACZ:  You said seven 
14   earlier.
15               MS. PERSE:  I'm moving on to eight.
16               MS. SANDACZ:  You said there were 
17   seven recommendations.  That's okay.  There 
18   could be eight.  I just wasn't sure.
19         Q.    The recommendations have four bullet 
20   points.  Explain to the patient that she needs 
21   further care, would you have reason to disagree 
22   with that?
23         A.    Not at all.
24         Q.    Provide names of qualified 
25   physicians from whom the patients can receive 
0154
 1   care, any reason to disagree with that?
 2         A.    Names, maybe I wouldn't say names.  
 3   I would say contact centers.  I don't know the 
 4   physicians.  I know where they should go, but I 
 5   don't always know who the physicians are, 
 6   especially if they are out of my system.  In 
 7   this system Kathy Lee, but out of the system, if 
 8   they lived in another province I wouldn't know 
 9   who to send them to.
10         Q.    It would be your responsibility to 
11   answer the patient's questions?
12         A.    Absolutely.
13         Q.    And also it would be important to 
14   document these steps and include a detailed 
15   description of the clinical findings in the 
16   medical record; true?
17               MS. SANDACZ:  Objection.
18         A.    To the best of my ability, correct.
19                       - - - - -
20          (Thereupon, Plaintiff's Deposition
21          Exhibit 13 was marked for purposes
22                  of identification.)
23                       - - - - -
24         Q.    I'm not sure I asked you this, but 
25   are you aware of what happened to Mrs. Berry 
0155
 1   after the -- it's fair to say that you were 
 2   aware --
 3         A.    I know she passed away.  That's all 
 4   I know.
 5         Q.    You do know she passed away?
 6         A.    Yes.
 7         Q.    Were you aware that she was 
 8   diagnosed with breast cancer?
 9         A.    From this, yes.
10         Q.    From the records?
11         A.    From the records, yes.
12         Q.    When did you become aware of the 
13   fact that she was diagnosed?
14         A.    From my nurses.  I might have known 
15   on these dates.  Would I have recollection two 
16   years later, no, but reviewing the records I 
17   would have known at that point that she had 
18   breast cancer.
19         Q.    Anything you may have received from 
20   the downtown main campus of the Cleveland Clinic 
21   that would be in your records you would be aware 
22   of?
23         A.    I may or may not have received it.  
24   I'm not aware of it.  Other than from a personal 
25   point of view having known the patient, I would 
0156
 1   not have been involved in the care of the 
 2   patient.
 3         Q.    Do you recall any conversations with 
 4   Mrs. Berry subsequent to her diagnosis of breast 
 5   cancer?
 6         A.    Nothing.
 7         Q.    What about with the family members?  
 8   Let's start with her husband, James Berry, any 
 9   telephone conversation?
10         A.    No family members.
11         Q.    Or conversations?  No family 
12   members.
13               MS. SANDACZ:  I think he said he 
14   didn't meet any of them.
15               MS. PERSE:  I understand.  I'm 
16   trying to be clear.
17         Q.    There's no conversations whether 
18   they be by telephone?
19         A.    I have no recollection at all of 
20   speaking to the patient after that or anyone 
21   else.  Not just the patient, but anyone else.
22         Q.    Are you aware of any treatment that 
23   Mrs. Berry received -- this is a very broad 
24   question.  I'm going to strike that.
25               From 2001 to 2004, November of 2004 
0157
 1   when Mrs. Berry was diagnosed with breast 
 2   cancer, are you aware of what other treatments 
 3   she may have received?
 4         A.    Not at all.
 5         Q.    Other than in preparation for 
 6   today's deposition, did you review any medical 
 7   records from other health care providers?
 8         A.    Nothing.  Nothing else other than 
 9   what was in this (indicating).
10         Q.    Do you have any reason, or at this 
11   juncture recognizing that if you come to learn 
12   you may change your opinions, but do you have 
13   any reason to be critical of the care that 
14   Mrs. Berry received from 2001 to 2004, the time 
15   of her diagnosis?
16         A.    Not at all.  Actually, from my 
17   record I think she received very good care.
18         Q.    And do you have any reason to be 
19   critical of Mrs. Berry?
20         A.    No, not at all.
21         Q.    I guess back to this Committee 
22   Opinion one last time.  If you need to review 
23   it, go ahead.  Aside from -- what was the 
24   number?  Which one did you disagree with?
25         A.    Four.
0158
 1               MS. SANDACZ:  Also part of three as 
 2   well.
 3         A.    Three as well, yes.
 4         Q.    Taking into consideration those 
 5   caveats, if you will, the other guidelines that 
 6   are proposed --
 7         A.    Are reasonable.
 8         Q.    You would agree that a reasonably 
 9   prudent obstetrician-gynecologist would follow 
10   those recommendations?
11               MS. SANDACZ:  Objection.
12               MR. KRAUSE:  Objection.
13               MR. PERRY:  Objection.
14         A.    I wouldn't necessarily follow them, 
15   but they are reasonable recommendations.  Again, 
16   there are so many other things other than just 
17   the breast exam.
18         Q.    I guess specifically with regards to 
19   item number one, would you agree that that is 
20   the duty of a reasonably prudent 
21   obstetrician-gynecologist?
22               MS. SANDACZ:  Objection.
23               MR. KRAUSE:  Objection.
24               MR. PERRY:  Objection.
25         A.    Again, I mentioned this a lot 
0159
 1   earlier, a breast examination is not always done 
 2   if a patient has had a recent examination.  So 
 3   the prudent well-educated 
 4   obstetrician-gynecologist following all the 
 5   standards of care may not do a breast exam if 
 6   the patient had a breast exam from somebody else 
 7   the day before or week before or if the patient 
 8   requested not to have one done.  These are just 
 9   guidelines.
10         Q.    You have given me exceptions to 
11   what --
12         A.    I don't think they are exceptions.  
13   I think that these are guidelines that they 
14   should be done, not necessarily by the 
15   gynecologist at that exam if they were done 
16   recently by somebody else or if the patient 
17   requested not to have them done which they very 
18   often do.
19         Q.    So those would be, the two things 
20   that you identified, the fact that the patient 
21   had a recent breast examination done by another 
22   clinician --
23         A.    Correct.
24         Q.    What time frame are we talking, 
25   within the last six weeks?
0160
 1         A.    No, longer than that.
 2               MS. SANDACZ:  Objection.
 3         A.    Longer than that.
 4         Q.    Within the last year?
 5         A.    Within the last year.  But, again, 
 6   my own feeling would be or my own practice would 
 7   be if it was a year ago or six months ago, I 
 8   probably would do it.  If it was recently, less 
 9   than that, I probably wouldn't do it again.  It 
10   depends on the woman.  If she's on hormones, not 
11   on hormones, family history, so many other 
12   variables.  If she had dense breasts and was 
13   hard to examine, I may do them.  If she had one 
14   three months ago, I may do it myself.  There are 
15   so many variables.
16         Q.    So is it fair to say a reasonably 
17   prudent obstetrician-gynecologist would do a 
18   breast exam including a visual inspection and 
19   palpation annually if not done by another 
20   clinician within the last six months?
21         A.    Correct.
22               MS. SANDACZ:  Objection.
23               MR. KRAUSE:  Objection.
24               MR. PERRY:  Objection.
25         Q.    I'm trying to include all the 
0161
 1   variables you provided me.  Strike that 
 2   intervening explanation.
 3               MS. SANDACZ:  Are you done with your 
 4   question?
 5               MS. PERSE:  No.  I guess I need you 
 6   to read it back. 
 7               (Record read.)
 8               MS. SANDACZ:  Objection.
 9               MR. KRAUSE:  Objection. 
10               MS. SANDACZ:  Wait until she's done 
11   with the question.
12         Q.    I am done with my question.
13               MS. SANDACZ:  Objection as to all 
14   the variables.  Go ahead, Doctor, if you can 
15   answer that based upon all the variables.
16         A.    As I said before, we would always -- 
17   I can only speak for myself.  I would always do 
18   the breast exam if I felt it was appropriate 
19   depending on the patient's many variables, when 
20   she was last examined, and as I said, if the 
21   breasts -- if I know from my own history that 
22   the breasts are very difficult to examine, even 
23   if somebody did it the day before, I may do it 
24   the next day. 
25               I vary what I do according to the 
0162
 1   situation, but I feel every woman should have a 
 2   breast exam done every year by a clinician.  If 
 3   that's what you want, yes.
 4         Q.    I guess I'm hearing you say it could 
 5   be done or need to be done more frequently.  The 
 6   only exception to not doing an examination would 
 7   be if it's been done recently by another 
 8   clinician?
 9               MS. SANDACZ:  Objection.
10               MR. KRAUSE:  Objection.
11               MR. PERRY:  Objection.
12         A.    No.
13               MS. SANDACZ:  The patient refuses.
14         Q.    Again, in the situation where a 
15   patient refuses?
16         A.    If a patient refuses an examination, 
17   an examination wouldn't be done.
18         Q.    True?
19         A.    Which is very common postpartum.
20         Q.    Would it be the duty of the 
21   obstetrician-gynecologist to educate the patient 
22   as to the importance of the breast examination?
23               MS. SANDACZ:  Objection.
24               MR. KRAUSE:  Objection.
25               MR. PERRY:  Objection.
0163
 1         A.    Absolutely.
 2         Q.    Wouldn't it be important to document 
 3   that conversation so as to protect yourself in 
 4   the future --
 5               MR. PERRY:  Objection.
 6         Q.    -- as to why you didn't do the 
 7   examination?
 8               MR. KRAUSE:  Objection.
 9               MS. SANDACZ:  Objection.
10         A.    No.
11         Q.    So it would be your position that 
12   you could not do a breast examination because 
13   the patient told you not to do a breast 
14   examination?
15         A.    Correct.  Absolutely.  I would never 
16   tell a patient that she had to have a breast 
17   examination if she didn't want it, and it is 
18   very common postpartum.
19         Q.    Did Mrs. Berry ever refuse a breast 
20   examination?
21         A.    Not for me.  I only examined her 
22   twice.  Not that I know of, no, not at all.
23         Q.    I guess I'm back to question one in 
24   terms of this Committee Opinion.  Would you 
25   agree that this is the bare minimum 
0164
 1   recommendation, number one, breast examination 
 2   by visual inspection and palpation should be an 
 3   integral part of the initial obstetric and 
 4   complete gynecologic examination?  It's a 
 5   necessary part.  The patient can refuse.  We've 
 6   established that.
 7         A.    It's a necessary part depending on 
 8   all the other variables.  The variables are if 
 9   she was seen by somebody else recently.  Even if 
10   it's an obstetrical visit, a first visit, or a 
11   first gynecological visit, a breast exam is not 
12   always done depending on these other variables. 
13               It's not always done at every visit 
14   by a gynecologist for a full visit or full, as 
15   they say, a complete examination because many of 
16   the patients have seen their breast surgeon for 
17   breast cancer, and I would see them a week 
18   later, and I would not at all do another breast 
19   exam.
20         Q.    I understand that.
21         A.    They would have a full gynecological 
22   exam and you're billing for a full gynecological 
23   exam, but the breast exam would not be done.
24         Q.    Any other exceptions that you can 
25   identify?
0165
 1               MS. SANDACZ:  Objection.
 2               MR. KRAUSE:  Objection.
 3               MR. PERRY:  Objection.
 4               MS. SANDACZ:  In fairness we've been 
 5   here for three-and-a-half hours, and you're 
 6   asking him to list every potential variable that 
 7   could exist that would indicate you didn't do a 
 8   breast examination.  That's an onerous question, 
 9   and we'll sit here forever if you want him to 
10   list all the possibilities.
11               MR. KRAUSE:  I think we've --
12         Q.    You can answer. 
13               MR. KRAUSE:  He's answered with 
14   the --
15               MS. PERSE:  I think he's answered 
16   with variables.  My question is very specific as 
17   to what those variables are.  If he doesn't know 
18   them, I want to hear he doesn't know.
19         A.    My own variables --
20               MR. KRAUSE:  Wait.
21               MS. PERSE:  He needs to answer the 
22   question.
23               MS. KRAUSE:  First, you can't cut me 
24   off from making an objection on the record.
25               MS. PERSE:  I haven't heard your 
0166
 1   objection.  You're just joining in with her 
 2   speaking objection.
 3               MR. KRAUSE:  I was speaking.  Then 
 4   you began to talk over me.  I object because 
 5   we've been here three-and-a-half hours and this 
 6   specific issue has been gone through at length, 
 7   and I believe the answer that the doctor has 
 8   given is a combined answer that he's already 
 9   given over the course of several minutes of 
10   questions.  Plaintiff's counsel is dissatisfied 
11   with the answer; therefore, she's asking it yet 
12   again.
13               MS. SANDACZ:  I will object to the 
14   fact that you're asking him for every single 
15   potential variable.  I just think that's an 
16   onerous question about every conceivable 
17   variable that I can't imagine that anyone 
18   sitting here in this situation after 
19   three-and-a-half hours can articulate. 
20               Go ahead, Doctor, to the extent that 
21   you can tell her every potential variable.
22               MR. PERRY:  I'll join both 
23   objections.
24         A.    Okay.  I don't remember everything 
25   that I said.  Looking at that number one, I 
0167
 1   would say a breast examination is not always 
 2   done based -- I would say it's generally done, 
 3   but it's not always done with many exceptions 
 4   including the patient's refusal, a recent 
 5   examination by a breast surgeon or an 
 6   oncologist, a primary care provider, or if the 
 7   patient is breastfeeding, again, and doesn't 
 8   want the examination, it wouldn't be done. 
 9               But generally an exam would be done 
10   because I think an exam should be done every 
11   year.
12         Q.    Again, I don't expect it to be an 
13   all inclusive list.
14         A.    I don't think it's different than 
15   what I said before.
16         Q.    I'm hearing many variables.  I'm 
17   just trying to narrow it down as to what 
18   variables we might be talking about. 
19               MS. PERSE:  I believe I'm done.
20               MR. PERRY:  No questions, sir.
21               MR. KRAUSE:  No questions.
22               MS. SANDACZ:  We will read.
23          (Deposition concluded at 7:35 p.m.)
24                (Signature not waived.)
25                       - - - - -
0168
 1                       AFFIDAVIT
 2         I have read the foregoing transcript from 
 3   page 1 through 167 and note the following 
 4   corrections:
 5   PAGE      LINE        REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17                           _____________________  
18                             BARRY PESKIN, M.D.
19   
20         Subscribed and sworn to before me this 
21   _______ day of _______, 2007. 
22                            
23                         _____________________
24                              Notary Public
25   My commission expires ______________.           
0169
 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 
10   commissioned and qualified, do hereby certify 
     that the within named BARRY PESKIN, M.D. was by 
11   me first duly sworn to testify to the truth, the 
     whole truth and nothing but the truth in the 
12   cause 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 
15   was taken at the time and place specified and 
     was completed without adjournment; that I am not 
16   a 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 27th day of April 2007.
21            
22   
23   
                 Cynthia A. Sullivan, Notary Public
24               Within and for the State of Ohio
25   My commission expires October 17, 2011.
0170
 1                         INDEX
 2           DEPOSITION OF BARRY PESKIN, M.D.
 3   
 4   BY MS. PERSE:.............................. 3:7
 5   
 6   Plaintiff's Deposition
     Exhibit 1 was marked....................... 6:7
 7   
     Plaintiff's Deposition
 8   Exhibit 2 was marked..................... 47:15
 9   Plaintiff's Deposition
     Exhibit 3 was marked..................... 62:21
10   
     Plaintiff's Deposition
11   Exhibit 4 was marked...................... 70:3
12   Plaintiff's Deposition
     Exhibit 5 was marked..................... 107:9
13   
     Plaintiff's Deposition
14   Exhibit 6 was marked.................... 108:15
15   Plaintiff's Deposition
     Exhibit 7 was marked.................... 126:13
16   
     Plaintiff's Deposition
17   Exhibits 8 and 9 were marked............. 134:5
18   Plaintiff's Deposition
     Exhibit 10 was marked................... 138:17
19   
     Plaintiff's Deposition
20   Exhibit 11 was marked................... 140:12
21   Plaintiff's Deposition
     Exhibit 12 was marked................... 142:14
22   
     Plaintiff's Deposition
23   Exhibit 13 was marked................... 154:20
24   
25