1 1 IN THE COURT OF COMMON PLEAS 2 SUMMIT COUNTY, OHIO 3 CASE NO. CV 98 06 2523 4 THERESA F. McGARVEY, ) 5 etc., et al. ) ) 6 Plaintiffs, ) DEPOSITION OF ) 7 versus ) MARK J. RATAIN, M.D. ) 8 LAUREL LAKE NURSING ) HOME, et al. ) 9 ) Defendants. ) 10 11 - - - - - - - 12 13 14 Deposition of MARK J. RATAIN, M.D., a 15 Witness herein, called by the Defendants for 16 Cross-Examination pursuant to the Ohio Rules of 17 Civil Procedure, taken before me, the 18 undersigned, Christine Leisure, a Registered 19 Professional Reporter and Notary Public in and 20 for the State of Ohio, by means of 21 videoconferencing from Kinko's, 6901 Rockside 22 Road, Independence, Ohio, on Tuesday, April 4, 23 2000, at 11:05 a.m. 24 25 - - - - - - - 2 1 APPEARANCES: 2 3 On behalf of the Plaintiff: 4 Tobias J. Hirshman, Attorney at Law 5 Ellen Hobbs Hirshman, Attorney at Law Linton & Hirshman 6 Hoyt Block Suite 300 700 West St. Clair Avenue 7 Cleveland, Ohio 44113-1230 8 On behalf of the Defendant Dr. Marquart: 9 10 Michael Lyon, Attorney at Law Lindhorst & Dreidame 11 312 Walnut Street Suite 2300 12 Cincinnati, Ohio 45202 13 On behalf of the Defendants Laurel Lake Nursing 14 Home and Laurel Lake Retirement Community, Inc.: 15 Frederick P. Vergon, Jr., Attorney at Law 16 Smith, Marshall, Weaver & Vergon 500 National City, East Sixth Building 17 1965 East Sixth Street Cleveland, Ohio 44114 18 19 On behalf of the Defendants Akron General Medical Center, Akron Clinic Physician Group and Akron 20 General Health System: 21 Martin Franey, Attorney at Law 22 Rawlin, Gravens & Franey 1240 Standard Building 23 Cleveland, Ohio 44113 24 25 - - - - - - - 3 1 2 I N D E X 3 4 EXAMINATION BY PAGE 5 Mr. Lyon 4, 93 6 Mr. Franey 83 7 8 9 EXHIBITS MARKED 10 None 11 12 - - - - - - - 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 Whereupon, 2 MARK J. RATAIN, M.D. 3 after being first duly sworn, as hereinafter 4 certified, testified as follows: 5 CROSS-EXAMINATION 6 BY MR. LYON: 7 Q. Doctor, would you please state your full name and 8 professional address. 9 A. I'm Mark Jeffrey Ratain, 5841 South Maryland 10 Avenue, MC 2115, Chicago, Illinois 60637. 11 Q. With whom are you presently employed, sir? 12 A. The University of Chicago. 13 Q. Could you delineate for me your professional 14 duties and responsibilities relative to that 15 employment? 16 A. I take care of patients, I teach, I do research, 17 I have some administrative tasks. 18 Q. What percentage of your professional time is in 19 the active clinical practice of medicine, 20 excluding administrative? 21 A. Hands-on seeing patients, you mean? 22 Q. Yes, sir. 23 A. Hands-on seeing patients is about 35, 40 percent. 24 Q. Would you describe for me your patient 25 population? In other words, what type of 5 1 problems with which do you deal on a daily basis 2 professionally with your patients? 3 A. It varies. The outpatient practice is primarily 4 patients with malignancies with a focus on solid 5 tumors, the inpatient activities are more of a 6 mixture of patients with hematologic and 7 oncologic problems. And my consultative 8 activities are either in the area of hematology 9 or oncology where it can be anything in that 10 discipline, or pharmacology which could be 11 anything really like medication. 12 Q. In other words, what percentage of your patient 13 population on a daily basis is related directly 14 or indirectly to cancer? 15 A. Directly or indirectly to cancer? 16 Q. Yes. 17 A. Probably about 80, 90 percent. 18 Q. And the ten percent beyond that, what type of 19 patients? 20 A. Patients that I see in consultation with 21 hematologic disorders or patients that I'm 22 consulted on regarding medication issues. 23 Q. How many times in the past 24 months have you 24 been consulted by a physician relative to 25 warfarin therapy? 6 1 A. I don't know. 2 Q. Any? 3 A. Yes. 4 Q. More than ten? 5 A. Probably not. 6 Q. Between five and ten; do you think? 7 A. I don't know. 8 Q. Can you remember the last time you were consulted 9 relative to that issue relative to a specific 10 patient? 11 A. It was the last time I was on our consult 12 service, which I think was in January. 13 Q. Doctor, what did you do to prepare for this 14 deposition today in terms of the materials you 15 reviewed and any literature, specific literature 16 you reviewed? 17 A. Well, I reviewed the records, the voluminous 18 records that have been sent to me which are 19 detailed in the correspondence from Linton & 20 Hirshman and -- 21 Q. You looked at the medical records obviously? 22 A. Right. 23 Q. When is the last time you looked at those 24 records? 25 A. Yesterday. 7 1 Q. And you took a number of notes, I see, correct? 2 A. Right. 3 Q. I want you to know that during this deposition 4 you can refer to these after I take a look at 5 these. Did you do any specific research relative 6 to the issues in this case at any time? 7 A. Well, I always -- It's my practice, whether I'm 8 taking care of patients or asked to provide 9 expert opinion, to use the medical literature 10 just to stay abreast of anything new that may 11 have happened since I last looked up a subject 12 matter. 13 Q. Let me ask you this, generally speaking, what 14 journals do you review on a regular basis to keep 15 abreast of the changing state of the art relative 16 to your subspecialties? 17 A. Are you asking me what journals do I read on a 18 regular basis? 19 Q. That's correct. 20 A. Well, I don't know if I can come up with a 21 complete list. 22 Q. Pick your best three, the ones that you feel are 23 the most authoritative in your subspecialties. 24 A. I'm not sure what you mean by authoritative. 25 Q. Let's put it this way, those journals that you 8 1 refer to that you rely upon when you read the 2 articles and incorporate into your everyday 3 practice. 4 A. I don't think I rely upon any single article 5 ever. 6 Q. I didn't ask you that. I am asking you what 7 journals do you refer to on a regular basis to 8 keep abreast of the changing state of the art in 9 the subspecialties on which you rely? 10 A. And you asked me to name the top three. 11 Q. Name them all. Name all the ones that you review 12 on a monthly basis. 13 A. I read the New England Journal of Medicine, I 14 read Anals of Internal Medicine, I read Science, 15 I read Journal of Clinical Oncology, I read a 16 lot, I read Anals of Oncology, I read Cancer 17 Chemotherapy & Pharmacology, I read 18 Pharmacogenetics, I read Nature Medicine, I read 19 Clinical Pharmacology & Therapeutics. 20 Q. That's enough. Let me ask you this, over the 21 years have you ever found any articles from any 22 of those journals that you relied upon and 23 incorporated into your everyday practice? 24 A. Sure. 25 Q. Okay. Did you find any articles of that nature 9 1 relative to the issues in this case? 2 A. I don't know. 3 Q. What do you mean you don't know? 4 A. I mean I don't know. I can't cite you a specific 5 article. 6 Q. Well, I guess my question, to make it easier, is 7 do you have with you today either a citation from 8 an article or articles that you're going to rely 9 upon to incorporate into the opinions in this 10 case? 11 A. No. 12 Q. Do you have any specific articles, textbook 13 chapters, abstracts, anything that you can refer 14 to that will demonstrate to me that your opinion 15 is based on any medical science literature in 16 this case? 17 A. No. 18 Q. On what are you basing your opinions? 19 A. My training and experience. 20 Q. Have you ever testified before in a medical 21 negligence case? 22 A. Yes. 23 Q. On how many occasions? 24 A. I don't know. 25 Q. Less than 100? 10 1 A. Yes. 2 Q. Less than 50? 3 A. Yes. 4 Q. Less than 25? 5 A. That's probably about a ball park figure. 6 Q. Have you ever testified in front of a jury? 7 A. Yes. 8 Q. On how many occasions? 9 A. I think four. 10 Q. And in what state or states? 11 A. One was in Ohio. 12 Q. Do you remember the city? 13 A. Could it be Elyria? 14 Q. It could be. That is a city in Ohio. When was 15 that approximately? 16 A. I think two years ago. 17 Q. Do you remember the attorney that had contact 18 with you for your expert opinions? 19 A. It was John Lancione. 20 Q. So it was a plaintiff's case? 21 A. Uh-huh. 22 Q. Do you remember the issues in that case? 23 A. It was failure to diagnose an intestinal 24 carcinoma. 25 Q. That's one. Give me the other three. I think 11 1 you mentioned four. 2 A. There was one in Wisconsin which was a failure to 3 diagnose a plasmocytoma of the spine. 4 Q. Okay. 5 A. There was one in Kentucky which was failure to 6 diagnose breast cancer. There was one in Florida 7 which was a heparin-induced thrombocytopenia. 8 Q. When was that? 9 A. That was last year. 10 Q. Was that for the plaintiff or the defense? 11 A. Plaintiff. 12 Q. And in what city? 13 A. That was in West Palm Beach, I think. 14 Q. A lot nicer than Elyria, Ohio, right? Do you 15 remember the name of the attorney? 16 A. I'm blocking on that. 17 Q. Okay. Over and above the four times you 18 testified in front of a jury, have you given your 19 deposition the way we're doing today relative to 20 cases? 21 A. Yes. 22 Q. On approximately how many occasions? 23 A. I really don't know. You know, twenty would be a 24 ball park. 25 Q. Fair enough. Have you ever testified on behalf 12 1 of a medical provider? 2 A. Yes. 3 Q. What percentage of your time has been testifying 4 for the medical provider versus the patient? 5 A. Well, I don't keep track, but I would estimate 6 about 20 percent. 7 Q. Have you ever testified either by deposition or 8 in a courtroom? You told us about the 9 heparin-induced case. Over and above that, have 10 you testified in a case that dealt with this same 11 or similar or analogous issues of the case we're 12 about to talk about today or management of 13 warfarin? 14 A. Not that I can recall. 15 Q. Tell me about the issues in the case in Florida, 16 the heparin case. What took place? 17 A. Well, it was a patient that was in the hospital 18 getting heparin and I think there was failure to 19 monitor the patient's platelet counts. And the 20 patient went on to develop thrombocytopenia and 21 severe thrombosis and ended up with loss of 22 limbs. 23 Q. Did you say a failure to monitor platelet counts? 24 A. Yes. 25 Q. What in your professional opinion is the 13 1 importance, if any, of the monitoring of 2 platelets in a patient receiving heparin? 3 A. It's a critical element. 4 Q. Why is that? 5 A. Because it's very common for heparin to cause a 6 lowering of the platelet count. 7 Q. Do you know the result of that case? 8 A. From my understanding, it was a verdict finding 9 for the defense. 10 Q. Did you write a written report in that case? 11 A. I don't recall. 12 Q. I had asked you before the deposition, I'll ask 13 you the same question, relative to the articles, 14 abstracts, et cetera, your publications reflected 15 in your Curriculum Vitae, my question was do any 16 of the articles that you have authored deal 17 directly with the issues in this case. And I 18 recall I believe you said no, but your answer was 19 that every article deals indirectly. Is that 20 still your answer? 21 A. Every is a little bit of an overstatement, but 22 since many of my publications are regarding drugs 23 and adverse reactions to drugs, pharmacokinetics 24 of drugs, pharmacodynamics of drugs, I would say 25 all of those indirectly bear relevance to this 14 1 case. 2 Q. When a primary care physician is preparing to 3 administer any drug, tell me what do you feel 4 are -- what are your expectations of a primary 5 care physician relative to any drug and its drug 6 reactions with other drugs? In other words, what 7 do you feel is the responsibility of the primary 8 care physician and how would they go about 9 finding out about that? 10 A. Well, a drug is a weapon in a sense, and if 11 misused it can hurt people. So whenever you 12 prescribe a drug you should be knowledgeable 13 regarding potential side effects and you should 14 be aware of the proper doses, the proper 15 monitoring, the steps that you can take to 16 minimize side effects, and potential drug 17 interactions as well. 18 Q. I guess my question is based on your education, 19 your training, and your experience in the 20 subspecialties and the literature reflected in 21 your CV, where in your professional opinion or 22 where would be the appropriate source for a 23 primary care physician to find out about a drug, 24 its reactions, its complications, et cetera? 25 A. Well, what I do when I have a question is I call 15 1 a pharmacist. 2 Q. So you would rely on a pharmacist? 3 A. Well, I don't think you can -- It depends what 4 you mean by rely, if you mean by rely one hundred 5 percent that what the pharmacist says is what you 6 should do. But I think that is a source of 7 information that can and should be incorporated 8 into the practice of medications. 9 Q. Well, Doctor, if I asked you to find out about 10 warfarin, the use of warfarin, the management of 11 it, its complications, its risks, et cetera, 12 putting aside calling a pharmacist, where would 13 you find information relative to that drug on 14 which you feel professionally you could rely upon 15 relative to patient care? 16 A. If I were asked as a clinical pharmacologist are 17 you saying as a specific question, or as a 18 hematologist? 19 Q. Well, let's assume you had a specific patient 20 with which you were managing warfarin management. 21 And I assume you've had those in the past; have 22 you not? 23 A. Sure. 24 Q. And if you had a specific question about the 25 management of that medication, where would you 16 1 find the information? Where would you go? 2 A. My personal knowledge base is very strong since 3 this is my area, but if there were a specific 4 issue such as does this new drug interact with 5 warfarin, what I would do is generally I would 6 use a Medline search and I would see if there had 7 been any reports of interactions. If there was 8 any pharmacologic reason to suspect an 9 interaction, I would rely on the medical 10 literature. 11 Q. And so when you use the word "rely" in that 12 context, what do you mean by the word "rely"? 13 How do you define your use of the word "rely" in 14 the answer you just gave us relative to the 15 medical literature? 16 A. Because I would rely on it to answer my specific 17 question. In other words, a physician should 18 have enough grounding in therapeutics to be able 19 to have the general framework for using a drug, 20 and there may be a specific question like what 21 dose is appropriate, what are the side effects, 22 what are the interacting drugs. 23 Sometimes you can find this 24 information in places such as the PDR. The PDR, 25 however, is notoriously unreliable and severely 17 1 out of date. One can call a company. There are 2 pharmacy databases. And what I do as a physician 3 is I rely on the medical literature. Generally 4 if it is important, it has been published in the 5 medical literature someplace. 6 Q. If you were doing your Medline search looking for 7 assistance, if you will, relative to the 8 management of warfarin, what journals would you 9 be looking for with which you maybe have more 10 respect than others on which you might rely more 11 than others? 12 A. I wouldn't search for a specific journal. As I 13 said, I would be searching for the answer to a 14 specific question. 15 Q. Well, do these answers in the Medline appear in 16 articles from medical journal articles? 17 A. Yes. 18 Q. Like the New England Journal of Medicine? 19 A. Yes. 20 Q. Is that a respected journal in your professional 21 opinion? 22 A. Sure. 23 Q. Have you relied upon articles of the New England 24 Journal of Medicine in the past? 25 A. In general? 18 1 Q. Yes. 2 A. Of course. 3 Q. Let's talk about the report. You wrote a report 4 to Mrs. Hirshman on the 10th day of December, 5 1999. My question to you, sir, is have you 6 written any other reports other than the one 7 we're looking at right now? 8 A. No. 9 Q. Have you, since the preparation of this letter, 10 reviewed any additional materials other than the 11 ones that appear in this letter? Does that 12 question make any sense to you? 13 Let me ask it in a more artful way. 14 You were kind enough to list in this letter in 15 the first paragraph the documents, the records, 16 the materials that you reviewed before you 17 authored this letter. And my question is are 18 there any additional depositions, records, 19 articles, anything that you have reviewed after 20 the preparation of this letter? 21 A. Only anything that would have been sent to me. 22 You know, without knowing exactly what was sent 23 to me and when, I can't really tell you. 24 MR. HIRSHMAN: Very briefly, the CT 25 Scan of February 6th today. 19 1 MR. LYON: All right. 2 MR. HIRSHMAN: And by that I mean the 3 actual film. 4 MR. LYON: Fair enough. 5 MS. HIRSHMAN: I can help you, too. 6 Any depositions that were taken after December 7 10th, '99 obviously would have been reviewed 8 after writing his report. 9 Q. I guess that is my question. Do you remember 10 reviewing depositions after this report and, if 11 so, I would like to know which ones they were. 12 A. Let me just see what I did after December 10th. 13 I definitely reviewed the Fricker deposition and 14 the Watkins deposition, the second part of the 15 Marquart deposition. As I said, unless it was 16 sent to me -- 17 Q. I know it's difficult. Here is why I'm asking you 18 this. As a result of reviewing the depositions 19 you identified, the second part of the Marquart 20 deposition, the Fricker deposition, the Watkins 21 deposition and whatever, put it this way, have 22 you changed any of the opinions that appear in 23 your letter of December 10th, 1999? 24 MR. HIRSHMAN: You also had an 25 opportunity to look at the defendant's -- 20 1 MR. LYON: Well, I'm not trying to 2 tie him down on what he has looked at. I'm 3 acknowledging he has reviewed additional 4 information. 5 Q. What I want to get at is as a result of whatever 6 you've looked at after the materials in your 7 letter of December 10th, 1999, do you still 8 maintain all the opinions in your letter of 9 December 10th, 1999? 10 A. Well, I guess the only comment I would make is 11 that in my next to the last paragraph I sort of 12 lumped together Drs. Hensel, Litman and Marquart 13 as the physicians involved in the management of 14 the warfarin. I think in thinking further about 15 it, it's really hard to see how Dr. Litman could 16 have done anything different than what he did. 17 And so my comments really are limited to Drs. 18 Hensel and Marquart. 19 Q. So what I understand is after reviewing the 20 materials that you delineated in your first 21 paragraph of your letter -- And by the way, how 22 long did it take you to go through that material? 23 A. I don't know. A lot of hours. 24 Q. Let me ask you this, how much did you charge Mr. 25 Hirshman or Mrs. Hirshman as of the 10th of 21 1 December, 1999, to go through this material to 2 determine your opinions and prepare this report? 3 How much have you been paid as of that date for 4 your review? 5 A. I don't know. I mean, some of this stuff I 6 looked at and decided it wasn't relevant and 7 informed the Hirshmans that I was not even going 8 to bother retaining it. So that would be all of 9 the nursing home records basically, anything 10 after about March 1st I think I just tossed, 11 March 1st, '98. 12 Q. Can I assume that you reported whatever they paid 13 you on your income tax return? 14 A. I haven't done my taxes yet. 15 Q. You intend to then; do you not? 16 A. Yes. 17 Q. So you have that figure; do you not? 18 A. Someplace. 19 Q. And we'll be able to get that from your counsel? 20 A. They're not my counsel. 21 Q. Well, from Mr. Hirshman. If you don't recall it 22 now, will you send that to him so he'll send it 23 to me then? 24 A. He knows how much he has paid. 25 Q. You're the witness, he's not. That is the 22 1 problem. So you will do that; will you not? 2 A. Are you asking me? 3 Q. I'm asking you to determine the amount of money 4 that they have paid you for your review as of the 5 10th of December, 1999, that's all, and then send 6 it to him and then he'll send it to me. Is that 7 all right? 8 MR. HIRSHMAN: We'll figure it out one 9 way or the other. 10 Q. Well, that is all I want. Will you do that? 11 A. I can't promise anything. 12 Q. I don't want to have to get a Court Order to do 13 it. I'm asking you to do it. Are you telling me 14 you won't do it? 15 A. No, I just can't -- As I said, I can assure you 16 that Mr. Hirshman or Ms. Hirshman can provide you 17 with that information and I will accept any 18 figure they give you. 19 Q. Well, I don't want it from them. I want it from 20 you. We'll deal with that later. 21 How many hours approximately did you 22 work on this case as of December 10th, 1999? 23 A. I don't know. 24 Q. Did you write a rough draft of this letter before 25 you prepared this in final form? 23 1 A. I probably wrote a rough draft. 2 Q. Did anybody assist you in writing that rough 3 draft? 4 A. No. 5 Q. Did you send a rough draft to Mr. or Mrs. 6 Hirshman before you did your final draft? 7 A. I may have. I don't recall. 8 Q. Will your records reflect that? 9 A. No. 10 Q. They will not. So you don't have a copy of any 11 rough drafts; is that correct? 12 A. That's correct. 13 Q. But what you do know is when you prepared this 14 report of December the 10th, 1999, you signed 15 your name; did you not? 16 A. Yes. 17 Q. And you read it carefully before you signed it; 18 did you not? 19 A. Yes. 20 Q. You knew that people would be relying on the 21 accuracy of this report and the opinions 22 contained therein? 23 A. Yes. 24 Q. So why did you in this report say, "It is my 25 opinion that Mr. McGarvey's physicians, Drs. 24 1 Hensel, Litman, and Marquart, did not meet the 2 standard of care in their prescription of an 3 inappropriately high dose of warfarin and failed 4 to properly monitor his INR", knowing that may 5 very well precipitate Dr. Litman being sued in a 6 Court of Law and accused of negligence? Why did 7 you do that? 8 A. Dr. Litman had already been sued. 9 Q. Well, why did you do this knowing that if you had 10 a different opinion the lawsuit may have very 11 well been dismissed back in December of 1999? 12 What was the basis of your opinion in this letter 13 that Dr. Litman was negligent? 14 A. Well, at the time it was not entirely clear as to 15 who was responsible for doing what and I meant to 16 encompass Dr. Litman. 17 Q. Well, my question, sir, is what was the factual 18 basis in your mind that you derived from the 19 records and documents that you had reviewed which 20 allowed you as a professional, a physician, an 21 individual with this kind of CV which is 22 extensive and well-respected, to accuse Dr. 23 Litman of being negligent in December of 1999? 24 What was the factual basis that provided you the 25 information to allow you to do so? That is all 25 1 I'm asking. 2 A. Well, he was participating in the care of the 3 patient. He initiated the warfarin and it was 4 unclear to me at that time exactly how the ball 5 was being passed, so to speak. 6 Q. Well, I'm going to ask you again, because 7 apparently we're not communicating too well, what 8 was the factual basis? In other words, let's 9 start this way, was the initial dosage level 10 instituted by Dr. Litman in your professional 11 opinion inappropriate and a departure from the 12 standard of care? 13 A. I don't think it was a departure from the 14 standard of care. 15 Q. All right. And you knew that back in December of 16 1999? 17 A. Right. 18 Q. So when you said in this letter that Dr. Litman 19 was negligent you were not referring to the 20 dosage, were you? 21 A. Certainly not the initial dosage. I think the 22 dosage to continue at 5 milligrams was too high. 23 Q. All right. So the basis of your criticism of Dr. 24 Litman back in December of 1999 was that he 25 somehow participated in the dosage being allowed 26 1 to continue without monitoring? 2 A. That's correct. 3 Q. What did you base it on? What was your 4 understanding of his participation or lack 5 thereof in the clinical course of this patient 6 when you reviewed the materials back in December 7 of 1999? 8 A. Can you repeat that question? 9 Q. Sure. What was your understanding of Dr. 10 Litman's participation or extent of participation 11 or lack of participation which allowed you then 12 to criticize his lack of monitoring? 13 A. He initiated the order for the warfarin at 14 5 milligrams per day. At that time I was 15 concerned that to continue at 5 milligrams was 16 not the optimal way to proceed, although checking 17 the prothrombin times certainly would have picked 18 up any problem. Obviously a lower dose would 19 have put the patient at less risk and that was 20 what my thinking was. 21 Q. Well, number one, did Dr. Litman either 22 personally monitor or order the prothrombin times 23 to be monitored? 24 A. Yes, he ordered it with the intention that the 25 order be transcribed onto the transport order. 27 1 Q. So was that appropriate? 2 A. Yes. 3 Q. Did you know that back in December 10th, 1999 4 that he did that? 5 A. Yes. 6 Q. Why did you criticize him then? 7 A. Because I felt that a lower dose would have been 8 less likely to result in this or some other 9 coagulation problem. 10 Q. So you were criticizing him for the dose? I 11 thought you said five minutes ago that your 12 criticism was not that the initial dose was 13 inappropriate. 14 A. By initial I mean the first three days. The 15 subsequent doses continuing at 5 milligrams I 16 thought was too high a dose. 17 Q. Well, again, I need to find out from you why were 18 you critical of Dr. Litman back in December of 19 1999? 20 A. Because I thought it was too high a dose for him 21 to be continued on. 22 Q. Today do you think it was too high a dose? 23 A. I think that to continue him on 5 milligrams a 24 day, yes, I think that is a high dose. Although 25 as I added, daily monitoring of the pro times 28 1 would have in fact demonstrated it was too high a 2 dose. 3 Q. What has changed your mind about Dr. Litman, when 4 in this letter here of December 10th, 1999 you 5 were critical of him? You had reviewed all the 6 medical records reflecting his care and 7 treatment, you had reviewed his deposition as of 8 that date; had you not? 9 A. Uh-huh. 10 Q. So you were privy to his personal testimony 11 relative to his participation; is that correct? 12 A. Yes. 13 Q. So after reviewing all the information you 14 conclude he was negligent and now apparently 15 you're saying you don't think he was negligent; 16 is that true? 17 A. I guess part of this is understanding the 18 difference between somebody not prescribing and 19 utilizing the dose optimally and actually being 20 negligent. So from the standpoint of, you know, 21 was he in some way involved with the situation, 22 yes. Whether that qualifies as negligence is 23 where, you know, I really have a level of 24 uncertainty that I am expressing to you now. 25 Q. Well, I can appreciate that because negligence is 29 1 a legal term. Let's put it in terms of what I 2 suspect you would be more familiar with, and that 3 is expectations of a physician like Dr. Litman in 4 this clinical setting. Does that sound more 5 familiar for you? 6 A. That's fine. 7 Q. It appears to me that in December of 1999 that 8 you, based on your education, training, 9 experience, and review of these materials, felt 10 that you would have expected Dr. Litman to act in 11 accordance with the standard of care relative to 12 the management of warfarin; is that a fair 13 statement? 14 A. Yes. 15 Q. And in your letter you say, "Drs. Hensel, Litman 16 and Marquart did not meet the standard of care in 17 their prescription of an inappropriately high 18 dose of warfarin and" -- there's two components 19 of your criticism -- "failure to properly monitor 20 his INR." 21 A. Yes. 22 Q. I'll start with each component. You felt that 23 Dr. Litman didn't meet the standard of care, 24 because at least back then you thought it was an 25 inappropriately high dose of warfarin, correct? 30 1 A. Yes. In fact, I still think it was too high a 2 dose, whether I'm being too harsh on him in 3 saying that he didn't meet the standard of care. 4 That is in retrospect. That is what I'm saying. 5 I don't think it was the optimal dose. 6 Q. Okay. Let me see if I can understand what you're 7 saying now. You do obviously know the difference 8 between prospective and retrospective? 9 A. Sure. 10 Q. You treat patients prospectively, don't you? 11 A. Sure. 12 Q. But oftentimes you can look back retrospectively 13 even on your own patient care and maybe conclude 14 based on after-acquired information that you 15 might have done something different; fair 16 statement? 17 A. Yes. 18 Q. That doesn't mean you departed from the standard 19 of care when you were acting prospectively, does 20 it? 21 A. That's correct. 22 Q. And you're looking at this case retrospectively, 23 aren't you? 24 A. Yes. 25 Q. And you would agree with me that Drs. Hensel, 31 1 Litman, and Marquart, for that matter, when they 2 were treating this patient were treating him 3 prospectively like you do patients every day; 4 fair? 5 A. Yes. 6 Q. And that as a result of your having the benefit 7 of all the information, all the records, and the 8 benefit of the plaintiff's decedent clinical 9 course up to his death, you have information that 10 these physicians did not have at certain times 11 along the clinical path; true statement? 12 A. Yes. 13 Q. So you're reviewing and evaluating their care 14 and treatment at times through information or 15 additional information that they didn't have; is 16 that fair? 17 A. Yes. 18 Q. So what you're saying to me apparently is that 19 retrospectively if you were to look at this 20 5 milligrams you say to yourself, well, that's an 21 inappropriately high dosage retrospectively, 22 because you now know that at some point in time 23 thereafter there was a very high INR level 24 achieved; true? 25 A. Yes. 32 1 Q. So retrospectively you can say to yourself I now 2 know it was inappropriate because of the INR 3 readings on 2-6 and 2-7, right? 4 A. Well, it was more than that. I mean, my thinking 5 was in looking back through the records that Mr. 6 McGarvey had shown himself to be very sensitive 7 to warfarin in the past and that a physician 8 expert in the use of warfarin would be able to 9 recognize that 5 milligrams would be too high a 10 dose for his use. 11 Q. For this patient? 12 A. For this patient. And the question really is did 13 Dr. Litman have the expertise and experience with 14 warfarin to be able to make that decision. 15 I guess really the genesis of this 16 opinion was it was very clear to me that Mr. 17 McGarvey's physicians as a whole did not meet the 18 standard of care. So, therefore, I wrote this 19 opinion to reflect that, recognizing the 20 physicians that were participating in his care 21 and, therefore, had an opportunity to modify his 22 care. 23 Q. Well, what kind of specialist, if any, is Dr. 24 Litman, to your knowledge? 25 A. He's a cardiologist. 33 1 Q. In your professional opinion would you have an 2 expectation that a cardiologist would have a 3 broader knowledge base than a primary care 4 physician relative to the management of warfarin? 5 A. I don't know. Probably. 6 Q. Okay. And so as to Dr. Litman, however, I want 7 to try to understand what you're saying here, 8 because this is very important to me. It appears 9 to me what you're saying is relative to the 10 dosage that retrospectively you say to yourself, 11 gee, it was inappropriate, but that is not fair 12 to Dr. Litman. 13 It sounds to me like what you are 14 doing is you're trying to evaluate his care and 15 treatment prospectively to the best of your 16 ability by evaluating two things: number one, 17 what the expectations would be with Dr. Litman 18 relative to the use of this medication, and, 19 secondly, the 5 milligrams as it relates to 20 optimal or different schools of thought; is that 21 a fair statement? 22 A. Yes. 23 Q. So when you evaluate Dr. Litman prospectively 24 rather than retrospectively like you did in this 25 report, you are saying to me under oath today 34 1 that you don't think Dr. Litman's choice of 2 5 milligrams rises to the level of a departure 3 from the standard of care because: number one, 4 Dr. Litman wouldn't be expected to be as expert 5 at it as you, and, secondly, the 5 milligrams, 6 though in your opinion high and wouldn't be your 7 preference, it doesn't in and of itself mean he 8 departed from the standard of care? Is that a 9 fair assessment of what you're saying? 10 A. Not exactly. I think what I'm saying is right now 11 I don't have an opinion one way or another 12 regarding Dr. Litman. 13 Q. Well, you changed your opinion though; did you 14 not, sir? 15 A. Yes. 16 Q. From having an opinion to now not having an 17 opinion? 18 A. That's correct. 19 Q. All right. And did I articulate the two 20 underlying bases for you changing your opinion 21 from having an opinion to not having one 22 appropriately? 23 A. I think so. 24 Q. Okay. What kind of physician is Dr. Marquart? 25 A. My understanding is he does either family 35 1 practice or general medicine. I don't know what 2 he calls himself. 3 Q. So based on what we've just talked about a couple 4 of minutes ago, your expectations and the 5 expectations of Dr. Marquart relative to the 6 management of warfarin as compared and contrasted 7 to Dr. Litman would be in your opinion and 8 probability -- because that is the word you used, 9 "probability" -- you wouldn't have these high 10 expectations of Dr. Marquart's management and 11 expertise as you would Dr. Litman because Dr. 12 Litman is a cardiologist? 13 A. That's correct. 14 Q. Now, Dr. Marquart was treating this patient 15 prospectively; was he not? 16 A. Yes. 17 Q. And so Dr. Marquart initially acknowledged, if 18 you will -- he didn't order it, but he 19 acknowledged that the 5 milligrams was 20 appropriate; did he not, by task of the 21 acknowledgment? In other words, he didn't order 22 it but he knew it was being given? 23 A. Yes. I mean, he ordered it in the nursing home. 24 Q. So he did the same as Dr. Litman, didn't he, 25 relative to the dosage? 36 1 A. Dr. Litman was monitoring the PT every day. 2 Q. I understand. I'm just talking about the dosage, 3 because that is one of the criticisms you 4 originally had of Dr. Litman. 5 A. Yes. 6 Q. So are you prepared to change your opinion 7 relative to Dr. Marquart as you did to Dr. Litman 8 on that issue, in other words, by virtue of the 9 fact that in your professional opinion and 10 looking at this prospectively that Dr. Marquart, 11 like Dr. Litman, should not be held to a level of 12 a departure from the standard of care merely 13 because of the 5 milligrams? 14 A. Yes. I mean, if the INR was within the 15 therapeutic range, continuing at 5 milligrams 16 would be within the standard of care. 17 Q. Apparently what you have a problem with is Dr. 18 Marquart's failure to monitor the INR; fair 19 statement? 20 A. That is absolutely the number one problem I have, 21 yes. 22 Q. Do you still maintain your original opinion 23 manifested in your letter of December 10th, 1999 24 as to Dr. Hensel? 25 A. Well, again, you're asking me to separate out 37 1 issues of what should be done for the patient 2 from whom should have done what, and a lot of 3 that really depends on how things work in a 4 particular institution. To my understanding at 5 AGMC, like at the University of Chicago Medical 6 Center, the house staff is responsible for 7 discharge and transfer orders. 8 Therefore, since Dr. Hensel's orders 9 indicated that Mr. McGarvey should continue 10 receiving 5 milligrams a day and did not indicate 11 the monitoring of the INR, that was too high a 12 dose of warfarin for someone whose INR was not 13 being monitored. 14 Q. Well, I'll let his counsel deal with that. 15 Let's take a look at your letter again and let me 16 direct your attention, if I may, to the middle -- 17 I'm sorry, the second paragraph on the first page 18 wherein you obviously read the records and noted 19 that Mr. McGarvey had been on warfarin management 20 at different times from 1995 to 1997. Do you see 21 that paragraph? 22 A. Yes. 23 Q. Is there any relationship in your professional 24 opinion between the length of time an individual 25 patient is on warfarin or their exposure to 38 1 warfarin and their risk of bleeding 2 complications? 3 A. Well, there are lots of things that can enhance 4 bleeding risk in patients on warfarin, and the 5 major risk factor is the intensity of the 6 warfarin, in other words, what is the target INR. 7 And the risk, if you're looking at cumulative 8 risk over time, it's proportional to the amount 9 of time someone has been on treatment. But the 10 amount of time that someone has been on warfarin, 11 I'm not aware that is a major risk factor. 12 Q. Hypothetically the longer an individual is on 13 warfarin the less likely they'll have bleeding 14 complications, is that a generally known 15 proposition? 16 A. I don't think so. 17 Q. Are you not aware of studies that have explored 18 that proposition that there is a lower percentage 19 of bleeding complications in people that are on 20 warfarin management longer? 21 A. I think it depends on the intensity of the 22 anticoagulation. Somebody that has been stable, 23 has been on warfarin for a long period of time, 24 has an INR in the 1.5, 2 range, I would say that 25 is somebody that is fairly unlikely to develop 39 1 problems, with the possible exception of drug 2 interactions. Somebody that is starting off 3 therapy with a fairly high target INR is going to 4 be at a fairly high risk for bleeding problems. 5 Q. In your third paragraph it says here, "The 6 warfarin was started on 12-11-97 which resulted 7 in an excessive increase in the INR with 8 relatively small amounts of warfarin." What 9 amounts were those? 10 Q. On 12-11-97 he received a loading dose which I 11 believe was 5 milligrams for three days and then 12 he was dropped down to 1 milligram a day. 13 Q. And the 1 milligram a day was last given on what 14 date? 15 A. My notes say December 22nd. 16 Q. And in your letter it says, "The drug was stopped 17 on 12-22-97 because of an INR of 4.3"? 18 A. Yes. 19 Q. Where do you get that from the medical records? 20 In other words, how did you figure that out? 21 A. How did I figure out what the INR was on that 22 day? 23 Q. No. From where did you glean that from the 24 records that -- The implication of your sentence 25 here is that a physician was worried that his INR 40 1 was too high and therefore stopped the warfarin. 2 I'm trying to figure out what doctor terminated 3 the warfarin because that doctor thought it was 4 too high. 5 A. I thought I saw something in the records that 6 said hold warfarin, it was held from 12-23 to 7 January 16th. 8 Q. I understand. I'm asking you, in other words, 9 you didn't see any orders written by any 10 physicians that said to stop the warfarin because 11 of an INR of 4.3 and that in their professional 12 opinion that was too high? You didn't see that 13 in the records, did you? 14 A. That is not something you would put in an order. 15 Q. You're assuming, or at least you're including 16 from that note to hold warfarin, that somebody 17 decided the INR of 4.3 was too high; is that 18 correct? 19 A. That is either my assumption based on my 20 education, training, and experience, or else that 21 was something that was reflected in the record. 22 I can't tell you which. 23 Q. Let me ask you this, relative to the -- 24 Let's go to the 5th day of February, 25 1998. Do you recall the admission history to 41 1 Akron General on that date; in other words, when 2 he was admitted to the hospital? 3 A. Did I look at it? 4 Q. Yes. Do you recall what his admission history 5 was? In other words, before February 5th of 1998 6 what in your professional opinion based on your 7 review of the records were the significant 8 historical components of Mr. McGarvey? 9 A. I remember that the primary thing was that he was 10 short of breath. I think he also had a fever. 11 Q. Anything else you recall? 12 A. Without having it in front of me I don't recall. 13 Q. Well, if he had open-heart surgery with a four 14 vessel bypass endarterectomy on the 8th day of 15 December of 1999, do you recall that? 16 A. Yes. 17 Q. He was then readmitted on December 19th, 1997 for 18 chest pain, shoulder pain, fever, chills, he had 19 a diagnosis of staph infection, he was treated 20 with antibiotics. Do you recall that? 21 A. Yes. 22 Q. During the admission of December 19th, 1997 he 23 had respiratory insufficiency. Do you recall 24 that? 25 A. Yes. 42 1 Q. What in your professional opinion was the 2 etiology of his respiratory deficiency during 3 that admission? 4 A. Back in December of '97 you're asking me? 5 Q. Yes, sir. 6 A. I think -- Again, I don't have everything in 7 front of me. I think it was related to his 8 atrial fibrillation, but I may be wrong. 9 Q. Well, do you recall his treatment for his 10 respiratory insufficiency during that admission? 11 A. No. 12 Q. Do you recall that he had a diagnosis of being 13 septic during that admission? 14 A. I remember he had infection and I don't know if 15 the term "septic" was used and, if so, if it was 16 used properly. 17 Q. Isn't that important to you to determine whether 18 he was in fact septic during that admission? 19 A. In December? 20 Q. Yes, sir. 21 A. Not important to me. 22 Q. Is it important in your ultimate opinions in this 23 case that he had respiratory pathology in 24 December of 1997? 25 A. I don't think so. Maybe I'm missing something. 43 1 Q. What were his presenting complaints that led to 2 his admission on February the 5th, 1998; do you 3 recall? 4 A. I think you just went through that, his -- 5 Q. Do you know the problems he was having at the 6 nursing home that led to his admission? 7 A. As I recall, the major issue was shortness of 8 breath, some fever. I think he was having left 9 shoulder pain. 10 Q. He had complaints of pain left shoulder, back, 11 fever yesterday 101, urine dark yellow, admission 12 at Akron with fever, pain midback, chills, 13 occasional fever and vomiting. There was no 14 mention whatsoever of any respiratory problems. 15 MR. HIRSHMAN: He had a pulse ox of 92 16 percent. 17 MR. LYON: Where is that? 18 MR. HIRSHMAN: In the records. 19 MR. LYON: At the nursing home? 20 Q. Do you remember that? 21 A. I do remember seeing the pulse ox. 22 MR. LYON: Well, a pulse oximeter of 23 92 percent, what was the date of that, Toby? Was 24 that 2-5-98? 25 MR. HIRSHMAN: 2-4. 44 1 Q. Let's talk about the pulse oximetry and what it 2 is telling you about the pulmonary status and 3 oxygenation status of a specific patient. In 4 other words, what is pulse oximetry and what does 5 it tell you? 6 A. When it's low it means -- 7 Q. First, what do you think is low? 8 A. That depends on the patient and the patient's 9 symptoms. 10 Q. All right. Let's talk about this patient. Is 92 11 percent in your professional opinion a value that 12 you would term as low? 13 A. Sometimes yes, sometimes no. As I said, I 14 thought I recalled that somebody said it was low. 15 I'm not opining that I feel it was low. 16 Q. Let me ask you this, what does it tell you, if 17 anything, about this specific patient's ability 18 to oxygenate and/or pulmonary status on, let's 19 say, the 4th day of February, 1998? 20 A. I don't have an opinion. 21 Q. Is it probable in your professional opinion that 22 the patient is experiencing some type of gas 23 exchange problem? 24 MR. HIRSHMAN: Do you want him to 25 consider the other findings? 45 1 MR. LYON: You can give him all the 2 findings you want if they relate to the 3 respiratory. 4 A. You are asking me to give opinions about 5 something -- You are asking me about a part of 6 the record that I don't have in front of me and 7 you're reading from something. 8 Q. Well, let me give you anything you want. What 9 date are you talking about? 10 MR. HIRSHMAN: Do you want him to 11 include that on February 4th there were findings 12 of labored respirations and then on the 5th there 13 was a finding of more shortness of breath than 14 usual? Do you want to include those? 15 MR. LYON: Yes, that's good. 16 Q. Now, take the shortness of breath, more shortness 17 of breath than usual, labored respirations, the 18 92 pulse oximeter with his history that you're 19 now aware of -- 20 A. Which history? 21 Q. The history we talked about. 22 A. What component of it are you focusing on? 23 Q. All of it. Doctor, when you pick up a chart for 24 a specific patient and you are trying to 25 determine what is wrong with a patient, you're 46 1 trying to come to grips with the patient's 2 problems, don't you read the history? 3 A. But I'm not here as a pulmonary consultant. I'm 4 not here to give you opinions on why he was short 5 of breath and why his oxygenation was 92. I'm 6 here as a clinical pharmacologist and oncologist, 7 so I'm not going to give you opinions regarding 8 this because I don't think they're relevant. 9 Q. Let me ask you directly, do you have any opinion 10 based on your education, training, and experience 11 as to whether the 92 pulse oximetry reading, the 12 labored respirations and the shortness of breath 13 more than usual had any impact or relevance 14 directly or indirectly on his pulmonary status on 15 the 4th day of February, 1998? 16 A. I think it was probably due to the fact that he 17 was bleeding in his lungs. 18 Q. All right. 19 A. And, again, looking through the retrospectoscope 20 with all the data, the facts in the case, I'm not 21 saying that decision could have been made at that 22 time. Now knowing what we know now, I think that 23 is what was going on then. 24 Q. Do you think that on the 4th day of February, 25 1998 he was bleeding in his lung? 47 1 A. The 4th or the 5th. I can't tell you exactly 2 when it started. I think he had intrapulmonary 3 hemorrhaging and a hemothorax. I can't tell you 4 when it started. 5 Q. When the hemothorax was diagnosed what was the 6 treatment protocol? 7 A. I think the major treatment protocol was to try 8 and reverse the coagulopathy. I can't tell you 9 the details of what else was done from a surgical 10 perspective. 11 Q. When you use the term "coagulopathy" in this 12 setting, how are you using that term? 13 A. His PT was very high and his PTT was very high. 14 Q. What did they do to reverse the coagulopathy? 15 A. The major thing that reversed it to the extent 16 that it got reversed was giving him fresh frozen 17 plasma and not giving him any more warfarin. 18 Q. They, in fact, did that treatment protocol. 19 Was it eficacious in reversing his coagulopathy? 20 A. Partially. 21 Q. Why do you say partially? 22 A. Because the numbers did not totally reverse. 23 The PT did not totally reverse, the PTT did. 24 Q. In your professional opinion did this patient 25 have disseminated intravascular coagulation at 48 1 any time between December 30th, 1997 and February 2 20th, 1998? 3 A. February 20th, not that I'm aware of. 4 Q. Let's just say February the 10th, 1998. 5 A. No. 6 Q. Let me ask you this, what is disseminated 7 intravascular coagulation? 8 A. It's when your whole body is trying to clot in 9 your blood vessels and there is inappropriate 10 clotting with the consumption of blood product. 11 Q. Are there any lab studies that can be of 12 assistance in the diagnosis of that? 13 A. Sure. 14 Q. Can you name them for me? 15 A. Fibrinogen, fibrin split products, hemoglobin, 16 platelets, PT, PTT. 17 Q. Were any of those studies done on this gentleman 18 during his hospitalization? 19 A. Sure. 20 Q. And did you look at the lab values on those 21 studies? 22 A. Yes. 23 Q. And any of those lab studies in your professional 24 opinion, are they consistent with disseminated 25 intravascular coagulation? 49 1 A. The packaging results are not consistent with 2 disseminated intravascular coagulation. 3 Q. The what? 4 A. Reviewing the entire tests as a package. 5 Q. Let's review them. Let me ask you this, did you 6 look at these values later? 7 A. Yes. 8 Q. Why do you say the package of results do not 9 point towards disseminated intravascular 10 coagulation? Why do you say that? 11 A. I never considered the diagnosis. There is no 12 evidence whatsoever of DIC. 13 Q. So when the treating physicians and the treating 14 surgeons wrote into the records that they felt 15 the patient had disseminated intravascular 16 coagulation, you think they're wrong? 17 A. Absolutely one hundred percent wrong. Did a 18 hematologist see this patient? No. 19 Q. Is a hematologist the only specialist who can 20 diagnose that condition? 21 A. Pretty much. 22 Q. So surgeons are incapable in your professional 23 opinion to diagnose that condition? 24 A. Our surgeons call us for any case where they 25 suspect a DIC. 50 1 Q. Well, let me ask you this, what is your 2 expectation if you were to take a D-dimer level, 3 what would you expect to see that would be of 4 assistance in diagnosing disseminated 5 intravascular coagulation? 6 A. Well, DIC it's usually high, but because it's 7 high doesn't mean that there is DIC. 8 Q. I appreciate that. What was the D-dimer values 9 on 2-6-98; do you recall? 10 A. Was there one done or two done? 11 Q. There were two done. 12 A. On 2-6 it was greater than 1.0. 13 Q. Is that consistent or inconsistent with DIC? 14 A. Consistent with but not diagnostic of. 15 Q. The fiber split products, what was the value? 16 A. Greater than 10, less than 20. 17 Q. And is that consistent or inconsistent with DIC? 18 A. Inconsistent. 19 Q. How about the platelet counts? What would you 20 expect the platelet count to be in a patient with 21 DIC? 22 A. Well -- 23 MR. HIRSHMAN: Let me pull out my copy 24 of the lab. 25 Q. As you're doing that, let me read them to you. 51 1 The platelet counts on 2-5 and 2-6 are normal, on 2 2-7 the levels drop and were as low as 105,000 to 3 2-8-98, although fluctuating, they reached a low 4 of 77,000 on 2-9-98, and then climbed back into a 5 normal range on 2-10-98. Does that pretty well 6 characterize what you saw? 7 A. Yeah, I think those are the numbers. 8 Q. In your professional opinion those are consistent 9 or inconsistent with DIC? 10 A. They're due to bleeding. That is why you need to 11 give platelets when you give massive 12 transfusions. 13 Q. I didn't ask you that. I'm asking you are those 14 low values of platelet counts consistent or 15 inconsistent with DIC? 16 MR. HIRSHMAN: I'm going to object to 17 the characterization of them necessarily being 18 low. 19 Q. What do you think they are? Do you think 77,000 20 is normal? 21 A. No, 77,000 is low. 22 Q. What about 105,000? 23 A. 105,000 is low. It's just not from DIC. 24 Q. Have you read Dr. Franklin's deposition? 25 A. No. 52 1 Q. If Dr. Corey Franklin felt that in his 2 professional opinion based on his review of these 3 records the patient was in DIC, you would 4 disagree with that, I assume? 5 A. Yes. 6 Q. Let's go back to your letter. 7 MR. FRANEY: Mike, would this be an 8 appropriate time to take a bathroom break? 9 MR. LYON: That would be fine. 10 (A brief recess was had.) 11 BY MR. LYON: 12 Q. Doctor, in your report on the last paragraph on 13 the first page it says, "On 2-6-98 he developed 14 hemoptysis and on 2-8-98 he underwent an 15 emergency exploratory laparotomy with splenectomy 16 for a preoperative diagnosis of hemoperitoneum 17 with ruptured spleen." 18 In your professional opinion from your 19 review of that operative note did that operation 20 go as expected? Were there any complications or 21 any problems encountered during that operative 22 procedure? 23 A. I don't know. 24 Q. Well, you read the operative report. Have you 25 ever read operative reports before? I assume you 53 1 have. 2 A. Yes, but I would not feel that I'm expert to 3 state whether a surgical procedure went with or 4 without a complication. 5 Q. Well, postoperatively were there any facts in the 6 medical records which leads you to believe as you 7 sit there today that there were any complications 8 as a result of the splenectomy? 9 A. I think I stated right here in my report 10 including hepatic subcapsular hematoma, 11 respiratory failure, prolonged mechanical 12 ventilation. 13 Q. You said he suffered a number of postoperative 14 complications. Now, I guess my question is are 15 what you're listing here as the hepatic 16 subcapsular hematoma, respiratory failure and 17 prolonged mechanical ventilation all in your 18 professional opinion characterized as 19 postoperative complications? 20 A. Well, maybe I'm misusing the term "postoperative 21 complications" or maybe I'm not using it in the 22 way you're used to it. What I mean by 23 postoperative complications are things that 24 occurred after the surgery that, you know, we 25 don't see in every case and, therefore, it would 54 1 be considered complications. 2 Q. Okay. 3 A. That is not to say negligence or malpractice or 4 anything. 5 Q. I mean, you're not suggesting that any of these 6 things were as a result of any negligence by the 7 surgeon? 8 A. Absolutely not. Postoperative complications does 9 not imply negligence. 10 Q. Right. In other words, you can have any type of 11 surgical complications in the absence of 12 negligence, correct? 13 A. Absolutely. 14 Q. The hepatic subcapsular hematoma, what was done, 15 if you know from your review of the records, to 16 treat that condition? 17 A. I don't have it in front of me. 18 Q. Was it treated? 19 A. I don't recall. 20 Q. You have no idea as you sit here today whether it 21 was treated? 22 A. Are you asking me to guess? 23 Q. Well, I thought you -- I'm just trying to 24 understand. You reviewed these records and -- 25 A. Well, they're in the trunk. We thought about 55 1 carrying them all in and then we decided we 2 weren't going to do that. So I had planned to 3 have everything here in front of me. 4 MR. HIRSHMAN: If you want him to do 5 that he can do that. 6 Q. Well, you have no independent recollection on 7 whether the hepatic subcapsular hematoma was 8 treated? 9 A. It was not relevant to my review. As I said, I 10 was asked to comment on certain things in this 11 case and that is what I would hope to restrict my 12 comments to. 13 Q. Why wasn't that relevant? 14 A. Why was it relevant? 15 Q. Well, I just want to understand everything you're 16 going to say at trial. In other words, so that I 17 can move on from here, the hepatic subcapsular 18 hematoma in your professional opinion has no 19 relevance to the issues in this case, either to 20 proximate cause or negligence; is that what 21 you're saying? 22 A. I don't think so. I commented upon it in my 23 report and I'm not aware of an issue. I'm sure 24 if Mr. Hirshman has an issue regarding that he'll 25 ask me some questions when you're done. 56 1 MR. HIRSHMAN: I don't get a chance to 2 ask questions here and I won't. But you're not 3 commenting on what a surgeon would do. 4 A. No, I would certainly defer to a surgeon on any 5 surgical issues. 6 Q. What about the respiratory failure? First let me 7 ask you this, when you say respiratory failure in 8 this sentence, on what do you base that or can 9 you characterize for me what respiratory failure 10 you're talking about after that operation? 11 A. You know, if you require mechanical ventilation 12 by definition that is respiratory failure. 13 Q. Okay. After the operation of 2-8-98 do you 14 recall when was he placed on mechanical 15 ventilation? 16 A. I don't recall. 17 MR. HIRSHMAN: He was on it. 18 Q. He was on mechanical ventilation at the time of 19 the operation. 20 A. Well, everybody is at the time of an operation. 21 Q. I'm talking about postoperatively. 22 MR. HIRSHMAN: He was on it until the 23 19th. 24 A. That was not relevant to what I was asked to do 25 in this case. 57 1 Q. Well, what were you asked to do in this case? 2 A. The original letter from Mr. Hirshman says, "I 3 would appreciate your assistance in undertaking a 4 review of the records provided for the purpose of 5 determining whether or not the splenic rupture 6 suffered by the patient, as well as the sequelae 7 death, were a direct and proximate cause of the 8 Coumadin therapy at the time of his discharge on 9 January 30th, 1998." 10 Q. Okay. Now, you're comfortable that was your role 11 in this case? 12 A. I think so. 13 Q. All right. Well, in the second page of your 14 report here, your opinion is in the report that I 15 have that I was given by your counsel. It says, 16 "This negligence was the direct cause of the INR 17 36.6 at the time of his admission to Akron 18 General on 2-5-98." 19 In other words, what you're saying in 20 that sentence is that the failure to monitor the 21 INR in this clinical setting allowed his INR 22 level to get to a level of 36 and it was actually 23 going to get higher than that at some point and 24 that in your professional opinion that was 25 negligence, correct? 58 1 A. Yes. 2 Q. All right. Now let's talk about your next 3 opinion. "Furthermore, it is my opinion that this 4 excessive anticoagulation caused his splenic 5 hemorrhage and rupture and that to a reasonable 6 degree of medical probability had his warfarin 7 been properly administered that the splenic 8 rupture would not have occurred." Correct? 9 A. Yes. 10 Q. In other words, it is your opinion that had Drs. 11 Hensel and Marquart, one or the other, monitored 12 his level, they would have seen it beginning to 13 rise, they would have intervened in the 14 appropriate fashion, it never would have gotten 15 to 36.6 or 44 or whatever, he never would have 16 had a splenic rupture; fair statement? 17 A. Yes. 18 Q. Nowhere in this report do you comment or do you 19 render an opinion as to whether any negligence on 20 the part of any physicians or any failure to 21 monitor Coumadin was proximately related to this 22 gentleman's death. Nowhere do I see that in this 23 letter. 24 A. That's correct. 25 Q. Can I assume because that is not in this letter 59 1 that you're not going to opine relative to that 2 issue? 3 A. That's correct. 4 Q. So what you will at trial do is essentially 5 testify relative to those two opinions I just 6 read, correct? 7 A. Yes. 8 Q. And you have no intention to testify relative to 9 the relationship, if any, between the negligence, 10 the Coumadin therapy, the ruptured spleen and his 11 death? 12 A. That's correct. 13 Q. I want to get back, if I may, to Dr. Litman. I 14 know I'm beating a dead horse. I didn't ask this 15 question. What information have you received now 16 either in the form of deposition testimony and/or 17 records, which specific information, if you will, 18 has allowed you now to take the position that you 19 do not have an opinion as to Dr. Litman? Can you 20 recall? 21 A. Well, I'm basically backing off on the criticism 22 of the warfarin dosing, and so the real issue is 23 the failure to monitor his INR. And it's been 24 represented to me that the standard practice at 25 Akron General Medical Center -- and here's a 60 1 letter that has been shared with me from Dr. 2 Guyton -- basically says that both past and 3 current standards of care for the primary service 4 physician is to assure that all orders are 5 properly transcribed upon discharge. So that the 6 failure to properly monitor his INR falls under 7 the responsibility of the primary service 8 physician and not Dr. Litman. 9 Q. So that is essentially why you're taking the 10 position now that you have no opinion? 11 A. Right. 12 Q. Assuming that information is accurate? 13 A. That's right. 14 Q. In that letter? 15 A. Yes. As I said, I was holding him to too high a 16 standard on the exact dosing of warfarin. 17 Q. I'm trying to figure, did you read -- I assume 18 that you've reviewed all the records from Mr. 19 McGarvey -- not all the records, but apparently 20 you have reviewed his medical charts from 21 12-19-97 to 1-20-98, 2-5-98 to 4-30-98; is that 22 correct? 23 A. Yes. 24 Q. Okay. After his two surgical procedures on the 25 8th and the 10th of February, in your 61 1 professional opinion based on your education, 2 your training, your experience, and your review 3 of his clinical course, do you have an opinion as 4 to whether Mr. McGarvey improved? 5 A. I don't have an opinion, no. 6 Q. You don't have an opinion. Did you have an 7 opportunity to determine in his medical records, 8 Mr. McGarvey, that he was in fact weaned from 9 mechanical ventilation at some point in time 10 during his hospitalization? Did you see that? 11 A. I probably saw it. 12 Q. Was it any significance to you? 13 A. No. 14 Q. Have you ever personally participated in the care 15 of a patient who aspirated? 16 A. Yes. 17 Q. Have you ever personally participated with a 18 patient who aspirated and as a result thereof 19 required intubation? 20 A. Yes. 21 Q. Have you ever personally participated with a 22 patient that needed a tracheostomy in order to 23 assist in preventing future aspiration? 24 A. Yes. 25 Q. Have you ever participated with any patient that 62 1 aspirated and was placed on mechanical 2 ventilation and for whatever reason became 3 ventilator dependent? Have you ever had a 4 patient have that situation take place? 5 A. I may have. I can't recall one. 6 Q. Have you noticed that all those components are 7 reflective of Mr. McGarvey's clinical course? 8 You're familiar with that; are you not? 9 A. I don't have any reason to doubt that statement. 10 Q. Were there any -- relative to Mr. McGarvey and 11 relative to your opinion that his inappropriately 12 high INRs directly and proximately caused his -- 13 or his excessive anticoagulation caused his 14 splenic hemorrhage and rupture, were there any 15 other underlying or co-morbid conditions of Mr. 16 McGarvey which in your professional opinion 17 contributed in any way to his condition? 18 A. Well, for reasons that are not totally clear, as 19 I said, he did exhibit sensitivity to warfarin in 20 the past. It's possible that he has a deficiency 21 in the enzyme responsible for the metabolism of 22 warfarin. 23 Q. You probably answered this and I apologize for 24 asking this again. I think you made reference in 25 your letter on this issue -- yes, you said 63 1 beginning in November 1997 he developed extreme 2 sensitivity to warfarin, et cetera, et cetera, 3 and that was approximately -- it looks like some 4 eight, nine, ten months before he came back to 5 the nursing home after being given the order of 6 5 milligrams? 7 MR. HIRSHMAN: In November of '97. 8 Q. Oh, November of '97. Do you know from reading 9 his depositions and reading the medical records 10 and reading the information, was Dr. Marquart 11 made aware of that by any physicians previously 12 treating this patient? 13 A. Not that I'm aware of. 14 Q. All right. And in fairness to Dr. Marquart -- 15 You know, we're looking back retrospectively now. 16 In fairness to Dr. Marquart, how would he have 17 been given that information? In other words, 18 what would be the mechanism of delivering that 19 information to him and whose responsibility in 20 your professional opinion would that have been? 21 A. And this sort of gets back to my opinions 22 regarding Dr. Litman. If Dr. Litman had been 23 aware of that and had utilized that information 24 in his own medical decision-making, I believe he 25 would have administered a lower dose. And if 64 1 that were the case, there may have been a phone 2 call made to emphasize the critical nature of 3 monitoring the prothrombin time as opposed to, 4 you know, what he intended, which was a direct 5 order to monitor the prothrombin time. 6 One can assume that things are going 7 to be done as one orders or one can make special 8 emphasis, in other words, one can write an order 9 and say to the nurse, "This needs to be given at 10 exactly 12:00 noon. I wrote it for 12:00 noon, 11 but I want to be certain you know this is given 12 at 12:00 noon." 13 Physicians can make that special 14 emphasis. Whether it really matters, I don't 15 know. It makes the physician feel better 16 sometimes to give that extra bit of 17 communication. 18 Q. In other words, if Dr. Litman knew or should have 19 known of this sensitivity relative to this 20 specific patient, number one, you would expect, 21 in order for Dr. Litman to adhere to the standard 22 of care, that he factor that into his care and 23 treatment of this patient; fair statement? 24 MR. HIRSHMAN: That is not what he 25 said. 65 1 A. That is a very confusing question. 2 Q. Well, I'll ask it again if it's confusing. 3 If Dr. Litman knew that this patient 4 had, as you say, an extreme -- you used the word 5 "extreme" sensitivity to warfarin, all right. 6 And the use of the word "extreme" sounds to me 7 like you felt that based on the objective 8 information that you saw, based on your 9 education, training and experience, you were not 10 talking about a moderate sensitivity to warfarin, 11 you're talking about an extreme sensitivity, 12 true? 13 A. Right. 14 Q. All right. Now, my question is if Dr. Litman 15 knew of that condition in this patient, based on 16 the danger of that sensitivity to this specific 17 patient in conjunction with the use of warfarin, 18 you believe that Dr. Litman had a duty to 19 incorporate that into his treatment protocol 20 relative to this patient; did he not, that 21 knowledge? 22 A. Yes. 23 Q. All right. And if he knew or should have known 24 of this and if he incorporated that into his 25 treatment protocol, then he had a duty to 66 1 communicate that to Dr. Marquart by written order 2 or via telephone call or to the other physicians 3 downstream, if you will, from Dr. Litman? 4 A. I didn't say he should have known. 5 Q. Well, if he did know. 6 A. If he knew that the patient had extreme 7 sensitivity to the warfarin then he had a duty to 8 administer the warfarin carefully and to monitor 9 the PT daily as long as the patient was under his 10 direct care. 11 Q. Did he have a further duty if he knew that the 12 patient was going to be under the care of another 13 individual whose responsibility was also to 14 monitor the INR levels, did he also have a duty 15 to give that additional information to the 16 downstream physicians? 17 A. I don't know. 18 Q. You don't know. Would that be something that you 19 would do if that were your patient? 20 A. Sometimes yes. I can't say I would do it every 21 time. I would like to believe I do it every 22 time, but I think that's an added plus. 23 Q. If you inherited -- That is a terrible word to 24 use. If you consulted or took over the care and 25 treatment for whatever period of time of a 67 1 patient in the same or similar circumstances and 2 there was a physician, a physician who had 3 treated the patient that had that knowledge, you 4 would have expected that physician and hoped that 5 physician to give you that information; would you 6 not, relative to warfarin sensitivity? 7 A. No, I would do an independent review of the 8 records, quite frankly, if there was an issue. 9 Q. Let me ask you this, what physicians knew of his 10 extreme sensitivity to warfarin? 11 A. I think they were taking care of him at that 12 time. 13 Q. And did that include Dr. Litman? 14 A. Dr. Litman testified in his deposition that he 15 was not managing the Coumadin during the December 16 1997 admission. 17 Q. What about Dr. Hensel, does he have any 18 responsibility relative to first becoming aware 19 of the extreme sensitivity and communicating that 20 to other physicians in your professional opinion? 21 A. I would not expect Dr. Hensel to be aware of that 22 or to understand what it would mean. 23 Q. Now, let me ask you this. I need to try to, if I 24 may, tie you down a little bit. When in your 25 professional opinion based on your review of 68 1 these records did Mr. McGarvey first demonstrate 2 evidence of bleeding proximately related to his 3 warfarin management? 4 A. It was while he was at the nursing home. 5 Q. And what in your professional opinion is the 6 first sign, symptom, objective piece of 7 information that you can point to to demonstrate 8 that he was bleeding? 9 A. I would have to look at those details in the 10 record. 11 MR. HIRSHMAN: Do you want to go get 12 the records? 13 MR. LYON: Yes, I would like you to do 14 that. That's important. 15 MR. HIRSHMAN: We'll go to the car and 16 get the records and take a break. 17 MR. LYON: We just need that volume of 18 records that would demonstrate that. 19 MR. FRANEY: Off the Record? 20 MR. LYON: Yes, we'll go off the 21 Record. 22 (A discussion was had off the Record.) 23 BY MR. LYON: 24 Q. When a CT Scan, the type of which we see in this 25 case shows infiltrates, what does infiltrate mean 69 1 in this setting? And I think you looked at one 2 of the films on 2-6; is that correct? 3 A. That's correct. 4 Q. Are you familiar with CT Scans and reading of CT 5 Scans? Do you do that as a regular customary 6 practice? 7 A. I look at them sometimes. I don't write reports 8 or make decisions based on CT Scans without the 9 advice of a radiologist. 10 Q. So on esoteric issues or reading these MRIs you 11 defer to the opinions of the radiologist? 12 A. Yes. 13 Q. Be that as it may, do you know what an infiltrate 14 is in this clinical setting? 15 A. Yes. 16 Q. What is it and did you see any on that film? 17 A. Well, it's something other than air. 18 Q. All right. And were you able to -- Would you 19 characterize any infiltrates on the 2-6 film? 20 A. There were findings that I would say are 21 consistent with infiltrates. 22 Q. And based on your education, your training and 23 your experience, your review of these records, do 24 you have an opinion which you can express as a 25 matter of reasonable medical probability as to 70 1 what the infiltrates are on that film that you 2 have looked at? 3 A. Based on my review of the whole records here I 4 think it's most likely blood. 5 Q. What would be, based on your education, training 6 and experience, your most probable differential 7 diagnosis? I'm not asking you is your only 8 differential, but do you have a differential 9 diagnosis based on this gentleman's clinical 10 picture as to what the infiltrates would 11 represent? 12 A. You're asking me all of the things it might be? 13 Q. Well, a reasonable differential. I'm not asking 14 you to list every single possible. I'm asking 15 what is the most probable differential you would 16 formulate from most probable to least probable in 17 this setting? 18 A. I think I would -- I mean, I can't answer that 19 without sitting there with the hemotologist and 20 radiologist saying -- I mean, in the absence of a 21 radiologist I would say is it blood or is it 22 infection. But I would sit down with a 23 radiologist and I would say is this blood or is 24 this infection and that would be my leading 25 differentials. But that is not to say that I 71 1 believe that there is evidence that it is 2 infection. That's just sort of a reflex. 3 Q. That's fair enough. That is exactly what I was 4 asking you. In other words, your review of that 5 film -- Apparently you looked at it today? 6 A. That's correct. 7 Q. Had you ever seen it before? 8 A. No. 9 Q. All right. Well, again, so your review of that 10 film today and based on your education, your 11 training, your experience, your review of the 12 other records reflecting this gentleman's 13 clinical course up to that point, and keeping in 14 mind that you're not a radiologist, but your 15 differential diagnosis relative to the nature of 16 the infiltrate is blood versus infection? 17 A. That's not what I said. 18 Q. All right. 19 A. I don't have an opinion on what that CT Scan 20 represents. 21 Q. You have no opinion? 22 A. No, I have an opinion as to what happened to the 23 patient. I believe the patient had 24 intrapulmonary hemorrhage and a hemothorax, but I 25 don't have an opinion from the standpoint of the 72 1 CT Scan. I don't feel qualified to render an 2 opinion. 3 Q. That's fair. And what in your professional 4 opinion was the direct and proximate etiology, if 5 you will, of the hemothorax? 6 A. The overanticoagulation of the warfarin. 7 Q. Have you ever had a patient with whom -- or that 8 you've treated that had a hemothorax as a result 9 of overcoagulation from warfarin? 10 A. No. 11 Q. Have you ever had a patient that had pulmonary 12 hemorrhage as a result of overcoagulation? 13 A. Not that I can recall. 14 Q. What in your professional opinion -- keeping in 15 mind that the hemothorax was limited to one lung, 16 I think, from what I recall. Is that what your 17 recollection is? 18 A. Yes. 19 Q. Okay. Can you explain to me the mechanism, if 20 you will, of how this patient would sustain a 21 hemothorax, the type of which is depicted on this 22 CT, from overcoagulation or overtreatment from 23 the warfarin without any other evidence of 24 bleeding in any other organ or part of his body? 25 How did that happen? 73 1 A. I don't know. I can't say I've ever seen anybody 2 with an INR of 36.6. This is such an unusual 3 case. 4 Q. Okay. I'll ask you the question again. You 5 think this is a very unusual case? 6 A. Yes, to have somebody on warfarin and to allow 7 the INR to go to 36.6 on warfarin is pretty 8 unusual. 9 Q. All right. And we would both probably at least 10 agree on one thing, and that was it's a super 11 toxic high level of warfarin; is it not? 12 A. Yes. 13 Q. Now, my question is in light of the fact that we 14 both agree that is a super toxic high level of 15 warfarin and we have a hemothorax in one lung, 16 explain to me -- It's your opinion that 17 hemothorax was directly caused by the warfarin. 18 That's your opinion, isn't it? 19 A. Yes. 20 Q. Okay. I want you to explain to me, because I'm 21 not a doctor and I don't understand these things 22 too well, but explain to me the mechanism of how 23 that would have happened to this patient without 24 any other evidence of bleeding in any other part 25 of the body. How did that happen? 74 1 A. These are random events. I can't tell you the 2 mechanisms, but obviously, you know, you could 3 take the same patient a day sooner or two days 4 sooner and probably have very close to the same 5 INR. I mean, at some point the bleeding started. 6 I can't tell you what triggered the bleeding. 7 Maybe it was a cough. I don't know. 8 Q. So what you're saying is that you cannot explain 9 the mechanism of how the toxic level of warfarin 10 caused from a mechanical standpoint, from a 11 metabolic standpoint caused that hemothorax? You 12 can't explain that, can you? 13 A. What I would say is with this level of INR 14 bleeding can start anywhere. It's a random 15 event. It can start in the brain. And I couldn't 16 tell you if this patient had a bleed within the 17 brain how that started and why it started when it 18 did. It just happens. It happens with warfarin. 19 It's a known toxicity of warfarin, the higher the 20 INR the greater the chance of bleeding within the 21 brain. Even though you can't explain it, that 22 doesn't mean it doesn't happen. 23 Q. I appreciate that general proposition. I just 24 want to make sure you and I understand each other 25 here today. And that is as to this patient, this 75 1 individual, Mr. McGarvey, in this clinical 2 setting with this INR level and relative to your 3 opinion that the INR level proximately and 4 directly caused the hemothorax in this patient, 5 you cannot explain the mechanism of how that 6 happened in this patient, can you? 7 A. That's correct. 8 Q. Okay. Was this patient septic on the 6th day of 9 February, 1998? 10 A. Not that I'm aware of. 11 Q. Did this patient have an infection as of that 12 date based on your review of the records? 13 A. Maybe yes, maybe no. 14 Q. When treatment was rendered to this patient the 15 INR levels developed drastically; did they not? 16 A. You're saying within the hospital during that 17 February 6th admission? 18 Q. Yes. Sorry. I should have been more precise. 19 On 2-6-98 at 0630 the INR developed from 20 approximately 44 down to -- I don't have that 21 specific value. 22 A. 2.14. 23 Q. All right. Was that in your professional opinion 24 at a therapeutic level or subtherapeutic? 25 A. Well, it's overtherapeutic in the context of 76 1 somebody bleeding. 2 Q. In your professional opinion was this patient 3 bleeding from 2-6-98 at 0630 until 0400 2-8-98? 4 A. Yes, he had some bleeding during that time, sure. 5 Q. Is it your professional opinion that in a patient 6 that has active bleeding that it is a departure 7 from the standard of care and contraindicated to 8 administer warfarin to a patient? 9 A. Yes. 10 Q. Did the CT of 2-6-98 in your professional opinion 11 show any sign of any abdominal bleeding? 12 A. I'm not qualified to make an independent review, 13 but my review of the report indicates that there 14 was no intra-abdominal bleeding at that time. 15 Q. However, on 2-8-98 we do see a CT Scan showing 16 bleeding in the abdomen, correct? 17 A. That's correct. 18 Q. Can you explain to me the mechanism again of the 19 warfarin having been brought down to -- What did 20 you say, 2 point what? 21 A. 14. 22 Q. -- 2.14 remaining almost subtherapeutic from 23 2-6-98 at 0630 through 2-8-98 0400? How was it 24 that the warfarin proximately and directly caused 25 the splenic rupture? Tell me what is the 77 1 mechanism of that injury. 2 A. Well, first of all, it did not stay that low. 3 The afternoon on 2-6 the INR was 3.33, the PTT 4 was 51.5. It's hard to say exactly when the 5 bleeding started, but the fact that there was 6 such massive bleeding is a direct result of the 7 fact that the patient on a prothrombin time was 8 not within the normal range. And whether this 9 was due to some incidental trauma in the hospital 10 such as even moving the patient from the ICU to 11 the CAT Scan in fact, it's hard to say. 12 Q. Let me stop you there. When you say incidental, 13 what was perhaps due to incidental trauma? 14 A. It's possible that the intra-abdominal bleeding 15 and the splenic trauma, there was splenic trauma 16 that ensued while he was in the hospital. 17 Q. Due to trauma? 18 A. Incidental trauma. 19 Q. Incidental trauma? 20 A. Right. 21 Q. And that is because splenic ruptures almost 22 always are as a result of trauma, true? 23 A. I think that's the most common cause. You 24 certainly can get it in people on warfarin. 25 Q. So you can't rule out that between 2-6-98 at 0630 78 1 and 2-8-98 at 0400 when the CT showed blood in 2 the abdomen and the splenic rupture, you can't 3 rule out that there was an incidental trauma in 4 that period of time? 5 A. Absolutely not. If you've ever seen anybody in 6 an ICU they're being picked up, they're being 7 turned, they're being CAT Scanned, they're coming 8 back. 9 Q. And of course because those things happen and 10 happen in the best of hands and in the best of 11 care, that has nothing to do with negligence, 12 does it? In other words, those things can 13 happen, the incidental trauma and the splenic 14 rupture in this setting can happen in the absence 15 of negligence, true? 16 A. I've never seen it. I've never seen it in 17 somebody on therapeutic doses of warfarin. The 18 other thing to remember is that there is going to 19 be a disconnect between what is in the plasma and 20 what is in the spleen, just because it takes a 21 while for the factors to get into the spleen. 22 So you asked me to say when in the 23 abdomen was his coagulation status out of the 24 super toxic range, it's hard to really say when 25 that was. He certainly could have even had a 79 1 trauma on his way back from the CT Scan. He goes 2 down to the CT Scanner for this test, they're 3 lifting him on and off the stretcher onto the CAT 4 Scanner and you get bounced around quite a bit 5 just in the routine management of patients, and 6 that may have been the triggering event right 7 there when he went down for that CAT Scan early 8 in the morning of the 6th. 9 Q. And if that happens, that certainly is not as a 10 result of negligence on the part of the nursing 11 staff or the hospital staff, is it? 12 A. No, it's a result of the fact that he was 13 overanticoagulated. That is the negligence. 14 It's not -- I'm not implying that anybody at the 15 hospital did anything negligent. 16 Q. In the absence of incidental trauma, however, 17 you're offering that as a possible precipitating 18 event which proximately caused the splenic 19 rupture; are you not? 20 A. Yes. 21 Q. In the absence of that can you offer any other 22 precipitating events or mechanisms to explain how 23 between 2-6-98 at 0630 and 2-8-98 at 0400 he 24 ended up with a splenic rupture? 25 A. Again, we don't really know what his factor 80 1 levels were continuously. And it looks to me 2 like the major bleeding was occurring on the 3 afternoon/evening of the 7th when he was having 4 the changes in his blood pressure. And again I 5 can't tell you exactly what triggered that. 6 Q. If the operative report -- Let me show it to you. 7 There's a little sticker down at the bottom. Do 8 you want to just tell us what exhibit that is? 9 A. That's Defendant's Exhibit 11. 10 Q. For everyone's benefit this is Defendant's 11 Exhibit 11 from Dr. Franklin's deposition. It's 12 the operative report of -- I believe that is -- 13 A. 2-8-98. 14 Q. I was just going to read a little quick sentence 15 from there. It says on the second page it was 16 noted -- Let's see. I want to get this right. 17 It says, "It was noted that the patient had 18 multiple gallstones in the area of the liver just 19 above the gallbladder, was profusely bleeding and 20 this could not be controlled, as well. It was 21 decided at this time that the patient had a 22 disseminated intravascular coagulopathy and that 23 we would pack the patient until we were able to 24 control him." Do you remember reading that? 25 A. Now that you refresh my memory. 81 1 Q. Sure. It's about the fourth sentence from the 2 bottom, I would say. 3 A. Okay. 4 Q. What does that mean to you, if anything? 5 A. Well, surgeons make intraoperative diagnoses all 6 the time. The most common thing they decide is 7 we got all the cancer, but we know that's not 8 always right. So I think they're stating what 9 their judgment was at the time, that is what 10 their clinical diagnosis was. That is not based 11 on a complete hematologic evaluation of the 12 patient. 13 Q. So that we understand what you just said here, 14 this physician or surgeon during an operation is 15 formulating a diagnosis and that diagnosis is 16 disseminated intravascular coagulation; is it 17 not? 18 A. That's correct. 19 Q. Now, let me show you what is marked Defendant's 20 Exhibit 12. Have you seen this? This is the 21 operation of the 10th of February. 22 A. All right. 23 Q. Okay. Let me just show you what I'm going to 24 read from. And this is, by the way, not 25 surprisingly, the same surgeon from the 2-8 82 1 operation. It says under indications, "This 2 patient is a 69-year-old male who had a 3 hemoperitoneum and a spontaneous ruptured spleen, 4 two days prior to this operation. He underwent 5 splenectomy. His retroperitoneum was bleeding at 6 that time" -- he's referring back now to the one 7 we just looked at -- "and had to be controlled 8 with packing." Then he says this, "He also had 9 bleeding from the liver which was controlled with 10 packing because the patient was in DIC." And 11 that of course is referring back to that 12 operative procedure. 13 I guess my question is did you read 14 these operative reports when you first looked at 15 these records? 16 A. I did, but I guess I didn't pay attention to 17 those sentences there. I never considered the 18 diagnosis of DIC in my review of this case. 19 Q. I understand you didn't. What I'm saying is 20 after having reviewed these records, looked at 21 them carefully, even been shown this, it's still 22 your opinion that the patient didn't have DIC? 23 A. The PTT was normal. There's no way. 24 Q. Okay. The most recognized cause or documented 25 cause of DIC, however, is sepsis; is it not? 83 1 A. Shock, no. Well, physicians use the word 2 "septic" to mean lots of things. Septic shock is 3 the most common cause of DIC probably. 4 Q. If the New England Journal of Medicine stated -- 5 unfortunately I don't have it with me -- that 6 sepsis, not shock, sepsis is the predominant 7 etiology and cause of DIC, would you disagree 8 with that? 9 A. Sepsis means septic shock, yes, that's what I'm 10 saying, not infection. 11 MR. LYON: Sir, I have no further 12 questions. I appreciate your time. 13 CROSS-EXAMINATION 14 BY MR. FRANEY: 15 Q. Doctor, my name is Marty Franey and I represent 16 Akron General Medical Center. Do you need a 17 break before my questioning? 18 A. I'm fine. 19 Q. Okay. Doctor, I just wanted to clarify, did you 20 read Dr. Hensel's deposition? 21 A. Yes. 22 Q. Did you read Dr. Litman's deposition? 23 A. Yes. 24 Q. Did you read Dr. Parker's deposition? 25 A. Yes. 84 1 Q. Can we agree that Dr. Litman was using the 2 Coumadin to manage Mr. McGarvey's atrial 3 fibrillation? 4 A. Yes. 5 Q. And that is a pretty common use? 6 A. Yes. 7 Q. And management of atrial fibrillation falls 8 within the specialty of cardiology; does it not? 9 A. Yes. 10 Q. And it was Dr. Litman who was managing Mr. 11 McGarvey on the Coumadin while he was at Akron 12 General Medical Center, correct? 13 A. Yes. 14 Q. Your recollection is that Dr. Hensel was on Dr. 15 Parker's plastic surgery service at the time of 16 his admission to Akron General Medical Center, 17 correct? 18 A. Yes. I just want to clarify a previous question. 19 I may not have reviewed Dr. Parker's deposition. 20 Q. Okay. But do you recall ever being sent Dr. 21 Parker's deposition? 22 A. Well, if he sent it I reviewed it. I don't have 23 any notes on it, which is why I don't think I was 24 sent it. 25 Q. Do you have notes there in front of you of 85 1 reviewing Dr. Hensel's deposition? 2 A. Yes, I do. 3 Q. And Dr. Litman's deposition? 4 A. Yes, I do. 5 Q. And both of Dr. Marquart's depositions? 6 A. Yes, I do. 7 Q. All right. And it was Dr. Litman that ordered 8 the 5 milligram dosage of Coumadin for Mr. 9 McGarvey, correct? 10 A. Yes. 11 Q. And it was Dr. Litman that ordered that the 12 prothrombin times were to be run every day while 13 he was at Akron General Medical Center, correct? 14 A. Correct. 15 Q. Now, is it your understanding that Laurel Lake, 16 the nursing home, is an independent facility from 17 Akron General Medical Center? 18 A. Yes. 19 Q. And that Dr. Marquart is a physician who was 20 treating Mr. McGarvey while he was at Laurel 21 Lake, correct? 22 A. Yes. 23 Q. Are you aware of any deposition or anything in 24 the evidence that says that anybody at Akron 25 General Medical Center can control the treatment 86 1 received by Mr. McGarvey while at Laurel Lake? 2 A. No. 3 Q. In fact, the real world is to the contrary, that 4 once Mr. McGarvey is discharged from Akron 5 General Medical Center and admitted at Laurel 6 Lake he falls under the care of the physician at 7 Laurel Lake, correct? 8 A. Correct. 9 Q. And that physician has to make his own 10 determination as to what is in the best interest 11 of Mr. McGarvey, correct? 12 A. Yes. 13 Q. Now, do you have any opinion as to whether or not 14 it was appropriate for Mr. McGarvey to be 15 discharged from Akron General Medical Center on 16 5 milligrams of Coumadin a day? 17 A. Well, as I said, I think a thorough review of his 18 previous warfarin dosing would have suggested 19 that he was likely to develop an elevated INR 20 beyond the therapeutic range. In other words, I 21 think the plan of Dr. Litman to dose him at 5 22 milligrams until the PT increased beyond the 23 therapeutic range was reasonable. 24 Q. Should Dr. Litman have discharged him when that 25 therapeutic range had not been reached yet? 87 1 A. I see no issue -- I'm not going to comment on the 2 appropriateness of the discharge, but I would not 3 see that as a contraindication to discharge being 4 that he was going to a skilled nursing facility 5 with a physician available and with the ability 6 to check the prothrombin time on a daily basis. 7 Q. Do you have any opinion as to whether or not Dr. 8 Litman should have insisted that he see Mr. 9 McGarvey after he was discharged from Akron 10 General Medical Center; in other words, that he 11 come back to see Dr. Litman at any point? 12 A. I don't have an opinion on that. 13 Q. Now, just so that we're clear, it's been agreed 14 that the primary service, that is Dr. Parker's 15 service on which Dr. Hensel was serving at the 16 time of the discharge, had the obligation at 17 Akron General Medical Center to transcribe the 18 physician's orders appropriately and we've agreed 19 to that. But when you transcribe the order, that 20 doesn't mean that you become involved in the 21 management of the care, do you? 22 A. I think that's a local issue. I don't really 23 have an opinion one way or another on that one. 24 Q. So if Dr. Hensel's responsibility was to 25 transcribe the orders, you do not have any 88 1 independent evidence that therefore he assumed 2 management of Mr. McGarvey's Coumadin care? 3 A. That's correct. 4 Q. Doctor, is there any risk to the patient to take 5 blood for the purposes of measuring the 6 prothrombin time? 7 A. No significant risk. 8 Q. Would there be any risk to Mr. McGarvey to take 9 the prothrombin time whether he was at Akron 10 General Medical Center or at Laurel Lake? 11 A. It has no significant risk. It's just the usual 12 risk of venipuncture, of bruising at the site. 13 Q. Do you have an opinion as to whether anyone on 14 Coumadin can be given that medication without any 15 prothrombin time testing? 16 A. Well, there are some examples where a very low 17 dose warfarin is used such as 1 milligram a day, 18 doses that are not intended to change the INR. 19 But doses of warfarin that are intended to change 20 the INR require intensive monitoring. 21 Q. Can you see anything in this record which would 22 lead a physician to conclude that the prothrombin 23 time should not be measured? 24 A. No. 25 Q. So is it your opinion that a reasonable physician 89 1 when he sees that a patient such as Mr. McGarvey 2 is on 5 milligrams of Coumadin that he would 3 conclude that the prothrombin time should be 4 tested? 5 A. Yes. 6 Q. How frequently would that testing be needed on a 7 person like Mr. McGarvey with what the physician 8 would know about coming from -- Well, with Mr. 9 McGarvey's history how frequently should the 10 Coumadin be tested, the prothrombin time be 11 tested? 12 Let me rephrase that whole question 13 for you. How frequently with Mr. McGarvey's 14 history should the prothrombin time be tested? 15 A. Well, let me respond in a way that, in other 16 words, if Dr. Marquart looking at this record and 17 looking at this patient was trying to determine 18 how frequently he should monitor the prothrombin 19 times, is that what you're asking me? 20 Q. Basically, yes. 21 A. I think that there might be insufficient 22 information unless he reviewed the entire medical 23 record. If he reviewed the entire medical record 24 and noted that the warfarin had just been 25 reinstituted, then he should know that it needs 90 1 to be monitored daily. If he just sees that this 2 is somebody on warfarin 5 milligrams a day, 3 doesn't know how long the patient has been on 4 warfarin for, he should check the INR and he 5 should make a phone call and get a little more 6 information. 7 Q. So if he only knows that he is on 5 milligrams of 8 Coumadin when he arrives at Laurel Lake and 9 doesn't know anything about the prothrombin time, 10 then what I hear you saying is that he should 11 order a prothrombin time testing at the time of 12 admission to figure out what the INR is? 13 A. Yes, and to also get further information about 14 how long he's been on the warfarin, assuming he 15 didn't have access to such information from the 16 medical record. 17 Q. Are you aware that sent with Mr. McGarvey at the 18 time of his transfer from Akron General to Laurel 19 Lake were a set of his laboratory records showing 20 the INR levels at least from the time that it was 21 re-prescribed for him on or about the 16th up 22 until the time of discharge? Were you aware that 23 those records went with Mr. McGarvey to Laurel 24 Lake? 25 A. I thought that was the case. Thank you for 91 1 clarifying that. 2 Q. Would it be incumbent upon a physician to review 3 the records that come with a patient? 4 A. Yes, that is why they're sent. 5 Q. If Dr. Marquart or if any attending had reviewed 6 the records with the patient and seen that he was 7 on 5 milligrams and on it for approximately four 8 or five days before transfer, would it still be 9 incumbent upon him to do a prothrombin time 10 testing to see what the patient's current status 11 is? 12 A. Well, yes. Furthermore, it would then be obvious 13 that the prothrombin time had been gradually 14 increasing since January 16th and it would be 15 incumbent for him to monitor it on a daily basis. 16 Q. At what point would it be permissible for the 17 attending to cease monitoring the prothrombin 18 time? 19 A. Once it stabilized within the therapeutic range. 20 Q. So it is your testimony that it had not reached 21 the therapeutic -- it had not stabilized within 22 the therapeutic range at the time that he arrived 23 at Laurel Lake, Mr. McGarvey, that is? 24 A. That's correct. It was continuously increasing 25 from January 16th to January 20th. 92 1 Q. And a physician reviewing the records that came 2 with Mr. McGarvey would have seen that or should 3 have seen that? 4 A. Could have seen it. 5 Q. And then I take it once the INR reaches the 6 therapeutic range then you start to cut back the 7 Coumadin; is that what you do? 8 A. Yes. 9 Q. And then what is your goal when you start to 10 reduce the Coumadin? 11 A. What do you mean by the goal? 12 Q. Are you just then trying to maintain it in the 13 therapeutic range based upon the prothrombin time 14 testing? 15 A. That's correct. 16 Q. Did you ever send any other correspondence to 17 Toby or Ellen Hirshman with regard to your 18 opinions with regard to Dr. Litman? 19 A. No. 20 Q. And just so that I understand, is it your opinion 21 that Mr. McGarvey was -- it was all right to 22 discharge Mr. McGarvey from Dr. Litman's point of 23 view with regard to his Coumadin status at that 24 time, at the time of his discharge, or is it that 25 you do not have an opinion in that regard? 93 1 A. I do not see that the Coumadin status is a 2 contraindication to discharge. 3 MR. FRANEY: I have no further 4 questions. 5 MR. VERGON: I have no questions, 6 Doctor. 7 RECROSS-EXAMINATION 8 BY MR. LYON: 9 Q. I just have two more questions. Doctor, what do 10 you charge to testify live in a Court? 11 A. $4,000 per day. 12 Q. And are you going to be there in May at the 13 trial? 14 A. It's on my calendar. 15 MR. LYON: That's all I have. 16 - - - - - - - 17 (Deposition concluded at 1:00 p.m.) 18 - - - - - - - 19 20 21 22 23 24 25 94 1 C E R T I F I C A T E 2 3 4 I, MARK J. RATAIN, M.D., do hereby 5 certify that I have read the foregoing deposition 6 in the case of THERESA F. McGARVEY, et al., 7 Plaintiff, versus LAUREL LAKE NURSING HOME, et 8 al., Defendant, and said deposition constitutes a 9 true and correct transcript of my testimony given 10 at the specified time. 11 12 13 14 MARK J. RATAIN, M.D. 15 16 Subscribed and sworn to before me this 17 day of , 2000. 18 19 20 Notary Public My commission expires 21 22 23 - - - - - - 24 25 95 1 C E R T I F I C A T E 2 STATE OF OHIO ) 3 ) SS SUMMIT COUNTY ) 4 5 6 I, Christine Leisure, a Registered Professional Reporter and Notary Public in and 7 for the State of Ohio, duly commissioned and qualified, do hereby certify that the within 8 named Witness, MARK J. RATAIN, M.D., was by me first duly sworn to testify the truth, the whole 9 truth and nothing but the truth in the cause aforesaid; that the testimony given was by me 10 reduced to Stenotypy and afterwards transcribed upon a computer, and that the foregoing is a true 11 and correct transcription of the testimony so given by him as aforesaid. 12 I do further certify that this 13 deposition was taken at the time and place in the foregoing caption specified. 14 I do further certify that I am 15 not a relative, counsel or attorney of either party, or otherwise interested in the event of 16 this action. 17 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at 18 Akron, Ohio, on this 20th day of April, 2000. 19 20 Christine Leisure, RPR & Notary Public 21 My commission expires April 1, 2002. 22 23 24 25