1 1 IN THE COURT OF COMMON PLEAS 2 OF CUYAHOGA COUNTY, OHIO 3 . 4 RICHARD P. MORSE, et al., 5 Plaintiffs, 6 vs. Case No. 7 439153 8 HAITHAM AZEM, M.D., et al., 9 Defendants. 10 . 11 - - - - - 12 Deposition of RAYMOND W. ROZMAN, 13 M.D. , called for examination under the 14 statute, taken before me, Michelle M. 15 Lewis, a Registered Professional 16 Reporter and Notary Public in and for 17 the State of Ohio, pursuant to notice 18 and stipulations, at the University 19 Suburban Health Center ,1611 S. Green 20 Road , Cleveland, Ohio, on Friday , 21 March 14, 2003, at 3:30 o'clock p .m. 22 - - - - - 23 . 24 . 25 . 2 1 APPEARANCES: 2 . 3 On behalf of the Plaintiffs: 4 Greene & Eisen, by 5 BRIAN EISEN, ESQ. 6 WILLIAM GREENE, ESQ. 7 1801 Penton Media Building 8 Cleveland, Ohio 44114 9 216.687.0900 10 . 11 On behalf of the Defendant Dr. Azem: 12 Buckingham Doolittle & Burroughs, 13 by 14 DIRK RIEMENSCHNEIDER, ESQ. 15 1700 One Cleveland Center 16 Cleveland, Ohio 44114 17 216.615.7325 18 . 19 On behalf of the Defendant Dr. 20 Jaeger: 21 Weston Hurd Fallon & Paisley, by 22 DEIRDRE HENRY, ESQ. 23 2500 Terminal Tower 24 Cleveland, Ohio 44113 25 216.687.3304 3 1 On behalf of the Defendants Dr. 2 Yohann and University Radiologists: 3 Reminger & Reminger, by 4 LESLIE JENNY, ESQ. 5 1400 Midland Building 6 Cleveland, Ohio 44114 7 216.687.1311 8 . 9 On behalf of the Defendant Bedford 10 Medical Center: 11 Bonezzi Switzer Murphy & Polito, 12 by 13 STEPHEN HUPP, ESQ. 14 526 Superior Avenue, Suite 1400 15 Cleveland, Ohio 44114 16 216.875.2767 17 - - - - - 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 4 1 RAYMOND W. ROZMAN, M.D., of 2 lawful age, called for examination, as 3 provided by the Ohio Rules of Civil 4 Procedure, being by me first duly sworn, 5 as hereinafter certified, deposed and 6 said as follows: 7 EXAMINATION OF RAYMOND W. ROZMAN, M.D. 8 BY-MR.EISEN: 9 Q. Would you please state your 10 name for the record, sir? 11 A. Raymond William Rozman, 12 Junior. 13 Q. Are you licensed to practice 14 medicine in the state of Ohio? 15 A. Yes. 16 Q. Any other states in which 17 you're licensed? 18 A. No. 19 Q. As I understand it your 20 specialty is internal medicine and 21 gastroenterology? 22 A. Yes. 23 Q. You've passed the boards in 24 both of those? 25 A. Yeah, fields. 5 1 Q. Did you pass the internal 2 medicine board on the first try? 3 A. Yes. 4 Q. And I believe you passed the 5 gastroenterology board on the first try 6 as well? 7 A. Yes. 8 Q. Is it fair to say about 15 9 to 20 percent of your practice right now 10 is gastroenterology? 11 A. Correct. 12 Q. How long has that been the 13 case? 14 A. It's been fairly stable over 15 time. I think there's been more 16 gastroenterologic procedures done 17 recently so it may have shifted from 15 18 toward 20 recently, but I've always 19 maintained both an internal medicine and 20 a gastroenterology practice. 21 Q. And as a internist you see 22 patients beginning at approximately what 23 age? 24 A. Usually in late teens. 25 Q. Through geriatrics? 6 1 A. Correct. 2 Q. Is your present population -- 3 patient population trend more towards 4 the teenagers, more towards the 5 geriatrics, can you give me some 6 breakdown? 7 A. I would imagine it tends 8 more toward geriatrics. I have patients 9 in all age categories, but primarily 10 older patients, 50 and over. 11 Q. More than half your patients 12 50 and older? 13 A. Probably. 14 Q. And that -- that's more than 15 half of your internal medicine patients 16 that are 50 and older? 17 A. Correct. 18 Q. And your internal medicine 19 patients constitute approximately 80 20 percent of your practice? 21 A. Yes. 22 - - - - - 23 (Thereupon, Deposition 24 Exhibit-1 was marked for 25 purposes of identification.) 7 1 - - - - - 2 Q. Handing you what's been 3 marked Plaintiff's Exhibit 1, two page 4 document. Can you identify that, 5 please? 6 A. This is my CV. 7 Q. Okay. Is there anything 8 that needs to be added to that to make 9 that up-to-date, sir? 10 A. The only change would be 11 that I no longer hold the position of 12 director of medical education. Probably 13 about a year ago there was a 14 reorganization of some of the services 15 here in the building and I no longer 16 hold the post of director of medical 17 education. 18 Q. And the building we're in 19 here today is University Suburban Health 20 Center, is that right? 21 A. Yes. 22 Q. And that's owned by 23 University Hospitals Health System? 24 A. I'm not sure that it's owned 25 by. I think we're an affiliate of the 8 1 University Hospitals Health System. 2 Q. You are employed by a 3 corporation called, what? 4 A. Cleveland Physicians 5 Incorporated. 6 Q. Okay. You've been an 7 employee of that for more than 10 years, 8 I imagine? 9 A. Since 1989. 10 Q. And you've never been 11 employed then by University Primary Care 12 Practices Incorporated? 13 A. Correct. 14 Q. I imagine you must know 15 physicians who are employed by that 16 group? 17 A. Yes. 18 Q. In fact, there must be at 19 least a dozen physicians employed by 20 that group in this very building, I 21 imagine, am I right? 22 A. I'm not sure that that group 23 has much presence in our building. 24 Q. Okay. 25 A. There are two main groups of 9 1 internists here, Cleveland Physicians, 2 which the group I belong to with 3 approximately 20 physicians, and then 4 the other group of internists on the 5 third floor is USHC physicians, and I 6 don't believe they're affiliated with 7 University Primary Care Practices. 8 Q. You don't know whether there 9 are any physicians employed by 10 University Primary Care Practices here 11 in the building? 12 A. I don't know that there are 13 any. 14 Q. Okay. Cleveland Physicians 15 Incorporated, is that a group that 16 consists only of internists or are there 17 other specialties represented in that 18 group? 19 A. We're all internists. Some 20 of us also have some subspecialty 21 interests. There are two other 22 gastroenterologists in the group, two 23 physicians who are internists and 24 cardiologists, there's an 25 endocrinologist in the group, but we 10 1 also practice internal medicine as well 2 as our subspecialty. 3 Q. Do you have any oncologists 4 in the group? 5 A. No. 6 Q. Have you spoken with any of 7 your colleagues in your group or in this 8 building or frankly any other doctors 9 about this case involving Sherry Morse? 10 A. No. 11 Q. You understand in this case 12 I'm here because I represent the estate 13 and next of kin of Sherry Morse? 14 A. Yes. 15 Q. Let's talk a little bit 16 about your involvement in medical/legal 17 matters. About how many times have you 18 been involved in the review of medical 19 records for a medical malpractice case? 20 A. Altogether? 21 Q. Altogether. 22 A. I don't keep track of the 23 cases that I review, so it would just 24 be an estimate. I would imagine it's 25 in the range of perhaps 100 to 200 11 1 cases over the past 10 years or so. 2 The frequency with which I review cases 3 has increased over the past, probably, 4 two to three years. 5 Q. Why is that? 6 A. I've been contacted more 7 frequently by attorneys to review cases. 8 Q. Okay. Can you give me some 9 sense over the years the 100 to 200 10 cases you have reviewed breakdown 11 between Plaintiffs' cases and 12 Defendants' cases? 13 A. The majority are defense 14 cases. The first several years I did 15 this it was nearly 100 percent defense. 16 In the past year or two I've done more 17 Plaintiffs' cases. Probably over the 18 past year or so I've probably done -- I 19 won't say an equal balance between 20 Plaintiffs and defense, but I've been 21 doing more Plaintiffs' cases as well. 22 Q. Can you give me the 23 percentage in the last year 24 approximately? 25 A. Perhaps 20 to 30 percent 12 1 Plaintiffs and 70 -- 70 to 80 percent 2 defense. Those would be, again, rough 3 estimates. 4 Q. Sure. How many times have 5 you reviewed a case for a Plaintiff 6 where the Defendant or potential 7 Defendant in the case was a Cleveland 8 area physician or hospital? 9 A. Again, I haven't counted -- 10 counted those cases. I imagine it would 11 be probably less than five. 12 Q. How many times have you 13 testified under oath critical of a 14 physician or hospital or other health 15 care provider in Cleveland? 16 A. For example, deposition or 17 trial testimony? 18 Q. Deposition or trial. And if 19 you can why don't you answer them 20 separately. First tell me how many 21 times a deposition under oath you've 22 taken the position that a Cleveland area 23 physician or health care institution 24 fell below accepted standards? 25 A. I'm trying to think of the 13 1 cases that I've done for Plaintiffs and 2 whether they came to deposition or not, 3 and whether or not they were local or 4 out of -- out of Cleveland. It would 5 be just a rough estimate. Perhaps five 6 times or less. 7 Q. Same question with respect to 8 trial. How many times at trial have 9 you testified that a Cleveland area 10 physician or hospital fell below 11 accepted standards? 12 A. I've not testified at trial 13 for a Plaintiff. 14 Q. How many times have you 15 testified at trial for Defendant? 16 A. Perhaps 10 to 15 times. 17 Again, as an estimate. 18 Q. And what about depositions 19 for a Defendant, 50 times? 20 A. Probably less than that. I 21 imagine 25 to 50. 22 I would point out that those 23 numbers in terms of Plaintiffs versus 24 defense cases reflect entirely the cases 25 of which have been sent to me. I have 14 1 not turned down any cases. I don't 2 have any particular preference, one side 3 versus the other, but those would be 4 just reflective of the cases that have 5 been sent to me. 6 Q. How many times have you been 7 hired as an expert witness by Mr. 8 Riemenschneider or his firm other than 9 this case? 10 A. I believe I testified for 11 Mr. Riemenschneider perhaps three times. 12 Q. Is that testified at 13 deposition or trial? You said 14 testified. I actually asked reviewed. 15 How many times have you been hired? I 16 just want to make sure you're answering 17 my question, we're on the same page. 18 A. I understand, I understand. 19 Q. Can you break it down for me 20 how many times you've testified for Mr. 21 Riemenschneider versus how many times 22 you've reviewed cases for him? 23 A. I would estimate that perhaps 24 I had one or two other depositions where 25 I've testified for Mr. Riemenschneider. 15 1 I've never given trial testimony for Mr. 2 Riemenschneider. There was a case where 3 I was prepared to testify and just prior 4 to my appearing on the stand, the case 5 was settled. 6 As far as reviewing cases for Mr. 7 Riemenschneider, I would imagine that's 8 in the three to five range. 9 Q. Have you been hired as an 10 expert witness by the law firm of 11 Reminger & Reminger? 12 A. Yes. 13 Q. About how many times have 14 you been hired by Reminger & Reminger? 15 A. As an estimate I would guess 16 perhaps maybe 50 times. Again, that 17 would be just a rough estimate. 18 Q. Okay. In particular, have 19 you been hired by Marc Groedel? 20 A. Yes. 21 Q. Who are some of the other 22 lawyers at Reminger who have hired you 23 as an expert? 24 A. I reviewed cases for Mr. 25 Meadows, for Ms. DiSilvio, for Mr. 16 1 Goldwasser, Mr. Mingus. There are 2 others, I can't recall them right now. 3 Q. Have you ever been hired by 4 the law firm of Weston Hurd or by Ms. 5 Henry in particular? 6 A. I've not reviewed a case 7 specifically for Mrs. Henry. I've 8 reviewed a case where I believe she was 9 assisting another attorney. 10 Q. One case review for Weston 11 Hurd? 12 A. I believe there's a -- there 13 might be two. And please understand 14 that all of these estimates are rough 15 estimates. I don't keep a record of 16 the cases that I review. 17 Q. I understand. You're just 18 giving me the best estimate you can 19 based on your recollection? 20 A. Correct. Yes. 21 Q. Have you ever been hired by 22 Mr. Hupp or the law firm of Bonezzi, 23 Switzer, Murphy & Polito? 24 A. I have never been hired by 25 Mr. Hupp. 17 1 Q. Okay. How about the law 2 firm of Bonezzi, Switzer, Murphy & 3 Polito? 4 A. I recall one case that I 5 reviewed for Mr. Murphy. 6 Q. I may have neglected to ask 7 you whether anyone other than Mr. 8 Riemenschneider has hired you from the 9 law firm of Buckingham Doolittle & 10 Burroughs? 11 A. I have reviewed cases for 12 Mr. Griffin, who I believe is in their 13 Canton office. 14 Q. Anyone else that you can 15 think of from Buckingham Doolittle? 16 A. Not that I can recall. 17 Q. You mentioned you've been 18 hired by Reminger & Reminger about 50 19 times. Can you tell me about how many 20 times you've testified for Reminger & 21 Reminger either by deposition or at 22 trial? 23 A. In the range perhaps of 10 24 to -- 10 to 15. 25 Q. Tell me how much you charge 18 1 for a case review for a medical/legal 2 matter? 3 A. For a case review $375 an 4 hour. 5 Q. And a deposition? 6 A. $400 per hour. 7 Q. And trial? 8 A. $500 per hour. 9 Q. Anyway you can estimate for 10 me the percentage of your annual income 11 derived from medical/legal matters? 12 A. It would just be an 13 estimate. 14 Q. Okay. That will do. 15 A. Perhaps 15, 20 percent. 16 Q. And when you handle a 17 medical/legal matter and you receive 18 payment for that, does that go to your 19 corporation or does that go to you 20 personally? 21 A. To me personally. 22 Q. And can you tell me how many 23 hours you have already billed for in 24 this case? Or actually, let me -- let 25 me withdraw that. 19 1 How many hours have you actually 2 spent on this case so far? 3 A. Perhaps in the five to 10 4 hour range. I don't think I've actually 5 sent an invoice yet, but approximately 6 five to 10 hours. 7 Q. Do you know any of the 8 Defendant physicians in this case? 9 First of all, do you know who all of 10 the Defendant physicians are? 11 A. Yes. 12 Q. Okay. Do you know Dr. Azem? 13 A. No. 14 Q. Never met him? 15 A. No. 16 Q. Did ever meet Dr. Jaeger or 17 Jaeger? 18 A. No. 19 Q. Did you ever meet Dr. 20 Yohann? 21 A. I have not met Dr. Yohann. 22 I've spoken to her on the phone, but 23 I've never met her. 24 Q. When most recently did you 25 speak with her over the phone? 20 1 A. Perhaps last month. 2 Q. What was the purpose of that 3 phone call, to consult on a patient of 4 yours? 5 A. Correct. 6 Q. It wasn't Sherry Morse, I 7 assume. It had nothing to do with 8 Sherry Morse, I presume? 9 A. That is correct. 10 Q. Did you discuss in any way 11 with Dr. Yohann when you spoke with her 12 a month ago this lawsuit? 13 A. No. 14 Q. Without telling me the 15 patient's name, can you tell me what the 16 phone call was about a month ago with 17 Dr. Yohann? 18 MR. RIEMENSCHNEIDER: Objection. 19 Go ahead. 20 A. I wouldn't recall the 21 patient's name. I suspect that it was 22 just that we had a conversation 23 regarding findings on a film related to 24 my patient. 25 Q. What kind of film was it? 21 1 A. Some sort of scan, either an 2 ultrasound or a CT scan. 3 Q. You sent the patient for 4 either an ultrasound or a CT scan and 5 because of a finding on that diagnostic 6 study Dr. Yohann attempted to 7 communicate to you, is that what 8 happened? 9 A. Yes. 10 Q. Was she communicating to you 11 some sort of abnormal finding? 12 A. I don't recall if it was an 13 abnormal finding or that I just asked 14 for a telephone report on that 15 particular study. 16 Q. You would agree with me it's 17 very important that a referring 18 physician and a consulting radiology 19 have open lines of communication? 20 A. Yes. 21 Q. And if a refer -- if a 22 radiologist sees something abnormal on a 23 film and she thinks it's important to 24 convey the information to a referring 25 physician, you expect the radiologist to 22 1 pick up the phone and make a phone 2 call? 3 MS. JENNY: Objection. 4 A. It depends on how unexpected 5 or abnormal the finding is. It's 6 routine for us to get reports, written 7 reports from an radiologist to have 8 abnormal findings which they have not 9 called us about. But there are times 10 if there is an unexpected finding or 11 finding of critical significance then 12 the radiologist will give us a call. 13 Q. Have you read Dr. Yohann's 14 radiology report in this case? 15 A. No. 16 Q. Have you seen the chest 17 films on Sherry Morse, any chest films 18 on Sherry Morse? 19 A. No. 20 Q. You haven't looked at any 21 radiographic studies with respect to 22 Sherry Morse? 23 A. No. 24 Q. Let's back up and talk about 25 what you have reviewed in connection 23 1 with this case. You have some materials 2 in front of you, is that your complete 3 fill in this case? 4 A. Yes. 5 Q. Has anything been removed 6 from your file? 7 A. No. 8 Q. Why don't you go ahead and 9 tell me what you have in front of you. 10 A. I have several bound volumes 11 of records including medical records 12 from Meridia South Pointe Hospital, 13 including prescription records of Medic 14 Drug and Drug Mart, and miscellaneous 15 lab reports and radiology reports, 16 office records of Dr. Tirgan. 17 Q. Do you know Dr. Tirgan? 18 A. No. 19 Q. Please continue. 20 A. Office records of Dr. Azem. 21 I have a sheet of chronology of notes 22 that I took when I reviewed the records 23 in this case. And I have also have 24 copies of several expert reports, 25 including my own report. This is a 24 1 typed summary of Dr. Jaeger's office 2 notes; and then depositions including 3 the deposition of Dr. Azem, Dr. Bolton, 4 Dr. Yohann, Dr. Steele, Dr. Levey and 5 Dr. Jaeger. 6 Now each of these depositions 7 includes a page of notes which I took 8 as I reviewed the -- that particular 9 deposition which records by page number 10 that particular person's testimony. 11 There is not any opinions of my 12 conclusions, just recording their 13 testimony so I can refer to it later. 14 Q. Well, you don't specifically 15 write your opinions down, doesn't the 16 fact that you selected certain things to 17 include on your notes but not others 18 somehow reflect -- somewhat reflect your 19 opinions in the case? 20 A. No. 21 Q. Okay. You just -- did you 22 pick out quotes randomly or things you 23 thought were important? 24 A. Things that I thought were 25 important pieces of their testimony. 25 1 Q. Okay. 2 A. But it does not contain any 3 impression of mine about that testimony. 4 Q. I understand. 5 Anything else you reviewed in 6 connection with this case? 7 A. Just a type written summary 8 of Dr. -- or a type written 9 transcription of Dr. Azem's records. 10 Q. Now, you've written a report 11 in this case dated February 11, 2002. 12 Do you have a copy of that? 13 A. Yes. 14 Q. Is that the only draft of 15 this report? 16 A. Yes. 17 Q. Prior to putting in writing 18 your opinions on February 11, 2002, had 19 you read any depositions other than the 20 deposition of Dr. Azem? 21 A. No. 22 Q. When did you read Dr. 23 Yohann's deposition, Dr. Steele's 24 deposition, Dr. Levey's deposition, Dr. 25 Jaeger's deposition, if you know? 26 1 A. Within the past month or 2 two. I would say probably either in 3 February or March. 4 Q. Since you have read 5 additional materials since you authored 6 this report of February 11, 2002, have 7 any of these materials changed in any 8 way the opinions you set forth in your 9 February 11th, letter? 10 A. Nothing which I have reviewed 11 since this report has changed the 12 opinions that I expressed in this 13 report. 14 MR. RIEMENSCHNEIDER: Obviously 15 we've provided you with a supplemental 16 report. 17 Q. There is a supplemental 18 report I understand? 19 A. Correct. 20 Q. Okay. 21 A. Which I prepared after 22 reviewing Dr. Steele's deposition. 23 Q. I notice that supplemental 24 report doesn't have your signature on 25 that, am I right? 27 1 A. That's correct. 2 Q. Why not? 3 A. I prepared it and sent it 4 electronically. I've not yet printed it 5 out. 6 Q. You still hold all of the 7 opinions set forth in your February 11th 8 letter and in your supplemental report? 9 A. Yes. 10 Q. And your supplemental report, 11 if I understand it, was written in order 12 to counter, if you will, the things you 13 read in Dr. Steele's deposition? 14 A. Well, I -- after reading all 15 of these additional materials I 16 discussed my opinions with Mr. 17 Riemenschneider, and during that 18 discussion I expressed the opinion 19 regarding whether or not the standard of 20 care required Dr. Azem to obtain old 21 records in this case. And since that 22 was an opinion which was not included in 23 my initial -- initial report from 24 February of 2002, I prepared a 25 supplemental report. 28 1 Q. Okay. I'm going to want to 2 get copies of your handwritten notes 3 including your deposition notes. 4 MR. EISEN: Should we take a 5 break and have them copied now? 6 (Brief recess.) 7 MR. EISEN: Let's go back on the 8 record. 9 Q. I'll go back to your CV for 10 just a minute. 11 A. Yes. 12 Q. There are four publications 13 listed on your curriculum vitae, is that 14 right? 15 A. Yes. 16 Q. And none of those things had 17 anything to do with lung cancer, am I 18 right? 19 A. Correct. 20 Q. And none of those had 21 anything to do with bronchitis, 22 pneumonia, cough, am I right? 23 A. Correct. 24 Q. Have you ever published 25 anything at all on the subjects of lung 29 1 cancer or bronchitis or pneumonia or 2 cough? 3 A. No. 4 Q. And the actual articles that 5 are listed on your CV are not -- were 6 not published in peer reviewed journals, 7 am I right? 8 A. Correct. 9 Q. They were published in 10 journals that you would typically call 11 throwaway journals? 12 A. Yes. 13 Q. Now, the opinions that you've 14 set forth in the two letters that you've 15 written, are those all the opinions that 16 you intend to come to trial and testify 17 about? 18 A. Yes. 19 Q. You attempted in those two 20 documents, your original letter of 21 February 11, 2002 and your supplemental 22 reporter to set forth all of the 23 opinions that you actually hold in this 24 case? 25 A. Yes. Certainly if you ask 30 1 me a question I'll express an opinion, 2 but these are the opinions that I hold 3 in this case. 4 Q. These are the ones that you 5 feel comfortable with your knowledge and 6 education and expertise to set forth, is 7 that right? 8 A. Right. 9 Q. And as you view your role in 10 this case, as I look at the reports 11 that you've authored, those reports 12 appear to be limited to issues of 13 standard of care, am I right? 14 A. Correct. 15 Q. You have no intention of 16 coming to trial and giving any opinions 17 to the jury about proximate causation, 18 am I right? 19 A. That's right. 20 Q. You don't intend to testify 21 about when Sherry Morse got cancer, do 22 you? 23 A. No. 24 Q. And you don't intend to 25 testify about whether or not she would 31 1 have survived depending upon when the 2 cancer was found, am I right about that? 3 A. You're correct, yes. 4 Q. There's also nothing in your 5 report about any diminished life 6 expectancy that Sherry Morse might have 7 had, is there? 8 A. That's not contained in 9 there. 10 Q. You don't intend to come to 11 trial and testify about that, do you? 12 A. No. 13 Q. Are there any materials that 14 you intend to review between now and the 15 time of trial? 16 A. Other than what I have in 17 front of me, no. 18 Q. So if for some reason you 19 review other materials and any of your 20 opinions change in any way, will you let 21 Mr. Riemenschneider know so that he can 22 let me know so you and I can sit down 23 and talk about it before trial? 24 A. Yes. 25 Q. Have you reviewed any medical 32 1 literature or textbooks in connection 2 with this case? 3 A. No. 4 Q. Are there any internal 5 medicine textbooks that you rely on from 6 time to time in your practice? 7 A. Occasionally I'll refer to an 8 internal medicine textbook. 9 Q. Such as which ones? 10 A. I'll refer either to 11 Harrison's or to Cecil. 12 Q. Why those two? 13 A. Those are the two that I 14 have in my office. I'll find them 15 helpful at times to answer questions I 16 might have. I don't always agree with 17 what's in there, but I find them useful 18 for reference. 19 Q. Sure. If you're looking for 20 useful information to assist you in your 21 practice on a subject you may not be 22 completely familiar with, that's where 23 you would turn? 24 A. Yes. 25 Q. You don't hold any academic 33 1 appointments, do you? 2 A. I am a senior clinical 3 instructor in medicine at Case Western 4 Reserve University School of Medicine. 5 Q. Okay. What does that 6 entail? 7 A. I will periodically have 8 either residents or students in my 9 office doing rotations where I will do 10 clinical teaching. 11 Q. So your teaching then is 12 limited solely to clinical teaching, 13 that of residents? 14 A. Yes. 15 Q. You don't do any lectures, 16 for example? 17 A. Correct. 18 Q. And the residents that you 19 would be teaching would be residents in 20 internal medicine only? 21 A. Yes. 22 Q. And do you have hospital 23 privileges somewhere? 24 A. Yes. 25 Q. Where do you have hospital 34 1 privileges? 2 A. At University Hospitals of 3 Cleveland. 4 Q. Anywhere else? 5 A. No. 6 Q. Have you ever had any 7 hospital privileges anywhere else after 8 the completion of your training at The 9 Cleveland Clinic? 10 A. No. 11 Q. Have you ever had your 12 hospital privileges suspended, revoked 13 or limited in any way? 14 A. No. 15 Q. Have you ever had any 16 restrictions placed upon your medical 17 license? 18 A. No. 19 Q. Can you give me some sense 20 of during the course of a year how much 21 time you spend with residents? 22 A. That varies over time. It's 23 been less recently. As I mentioned 24 earlier there's been an reorganization 25 of the education program in this 35 1 building. In the past I would spend 2 perhaps 40 to 50 hours per year with 3 either residents or students in my 4 office. Recently it's been much less. 5 In fact, I haven't had a resident or a 6 student come through my office in the 7 past year or more. 8 Q. Can you give me some sense 9 of how many patients -- how many 10 patients do you have total right now, 11 ball park? 12 A. It would be hard to 13 estimate. I think that there are 14 probably a few thousand patients who 15 consider me as their doctor, although 16 probably of that number, a small 17 fraction, perhaps 10 percent of those 18 are ones that come in frequently. I 19 see probably 300 to 350 patients per 20 month every month for office visits. 21 Q. They may be repeat patients, 22 they're not necessarily 300 to 350 23 different patients? 24 A. Correct. 25 Q. How many patients in your 36 1 practice have you seen who had lung 2 cancer? 3 A. Since I've been in practice? 4 Q. Yeah, since you've been in 5 the private practice. 6 A. Maybe 20 patients as an 7 estimate. 8 Q. Tell me what the youngest 9 patient you recall with lung cancer is, 10 in your practice? 11 A. There was one gentleman who 12 was a fellow perhaps 50 who was 13 diagnosed with lung cancer would be the 14 youngest. 15 Q. Of the approximately 20 16 patients you've had with lung cancer, 17 were any of those diagnosed with lung 18 cancer when the cancer was still in 19 Stage I? 20 A. Yes. 21 Q. How many of those? 22 A. Of the 20, perhaps two. 23 Q. Were those diagnoses both 24 made following abnormal chest x-rays 25 ordered for other purposes, in other 37 1 words, a purpose other than looking for 2 lung cancer? 3 MR. RIEMENSCHNEIDER: Objection. 4 Go ahead. 5 A. I believe they were diagnosed 6 based on a finding on an x-ray done for 7 symptoms. 8 Q. What kind of symptoms are 9 you talking about, symptoms of lung 10 cancer or symptoms of something else? 11 A. Symptoms such as cough or 12 shortness of breath. 13 Q. Symptoms that can be 14 consistent with lung cancer but are 15 fairly nonspecific? 16 A. Correct. 17 Q. And I take it you, in those 18 cases you would receive a report, a 19 written report, from the radiologist 20 with a suspicious finding on it? 21 A. Yes. 22 Q. And then would the 23 radiologist in each of those cases 24 recommend follow-up studies of some 25 sort? 38 1 A. Yes. 2 Q. Would that then be your 3 decision whether or not to do a 4 follow-up study? 5 A. Yes. 6 Q. If a radiologist sends you a 7 report, a patient of yours with an 8 abnormality on a chest film and 9 recommends follow-up studies, can you 10 think of circumstances -- have you had 11 any circumstances where you wouldn't go 12 ahead and order those follow-up studies? 13 MR. RIEMENSCHNEIDER: Objection, 14 relevance. Go ahead. 15 A. The only circumstance I can 16 think of where I wouldn't perform a 17 follow-up study recommended by a 18 radiologist would be if that particular 19 finding had already been fully evaluated 20 and found to be stable. 21 Q. And you would -- you would 22 know that only if you obtained either 23 prior films on the patient or took a 24 very thorough history from the patient? 25 A. Well, the circumstance I 39 1 mentioned would be one in which I had 2 previously followed that patient for 3 that finding. 4 Q. So you had personally 5 followed the patient, you'd looked at 6 prior films, you've decided that finding 7 is stable, it doesn't represent a new 8 finding, you wouldn't necessarily then 9 have to go and get a follow-up study? 10 A. Yes. 11 Q. Okay. And when you have 12 nonspecific symptoms like cough or 13 shortness of breath, those kinds of 14 symptoms, can, as we said, it can 15 represent lung cancer, it can also 16 represent something such as bronchitis, 17 am I right? 18 A. Yes. 19 Q. And in trying to figure out 20 the etiology of a cough, probably the 21 most important thing you can do is take 22 a real thorough history of that cough, 23 is that fair to say? 24 A. The history of a cough is 25 important, yes. 40 1 Q. Well, what kinds of things, 2 when you have a patient who presents to 3 you for the first time with a cough as 4 a chief complaint, what kinds of things 5 do you ask the patient? 6 A. I ask the patient how long 7 the cough has been present, whether they 8 had a cough like that in the past, 9 whether they cough up any mucous or 10 whether it's a dry cough, whether there 11 are any associated symptoms such as 12 chest pain or fever, whether they're a 13 smoker, under what circumstances they 14 tend to get the cough, is there a 15 pattern to the cough, what they've done 16 to try to relieve it. Those would be 17 typically the questions I would ask. 18 Q. You mentioned the pattern of 19 the cough, what do you mean by that? 20 A. For example, if the cough 21 occurs after eating, if the cough occurs 22 while lying down at night, if there's a 23 certain time of day the cough occurs, 24 for example, it occurs only at night. 25 Q. The various questions that 41 1 you've outlined for me just now, are 2 those all part of the standard history 3 you take in a patient complaining of 4 cough in your office? 5 A. Yes. 6 Q. Is it fair to say when there 7 is a change in the character or the 8 pattern of the cough as you've just 9 described it -- let me take that back. 10 MS. HENRY: I sort of got lost 11 there with the music. Can we go back 12 to the standard history? 13 MR. EISEN: I'm going to start 14 over. 15 MS. HENRY: I'm asking for the 16 question before. 17 MR. EISEN: You can ask for the 18 question and the answer if you'd like. 19 MS. HENRY: That's what I would 20 like. 21 (Record read.) 22 Q. And when you have a change 23 in the pattern of a cough, in other 24 words, you have a patient with a chronic 25 cough, okay? Yes? I just want to make 42 1 sure we break it down. You have a 2 patient with a chronic cough, okay? 3 A. Yes. 4 Q. What's a chronic cough? 5 A. A cough that's lasted over a 6 long period of time. 7 Q. Greater than six weeks, say? 8 A. Yes. 9 Q. And if there is a change in 10 a pattern of a patient with a chronic 11 cough, a change in the cough pattern, is 12 that something that in your opinion 13 warrants an immediate diagnostic 14 evaluation? 15 A. Yes. 16 Q. And the reason it warrants 17 an immediate diagnostic evaluation, 18 among other things, is you have to make 19 sure that the change in the pattern of 20 the cough isn't caused by something 21 ominous, for example, bronchogenic 22 carcinoma, isn't that true? 23 A. Well, whether that would be 24 a consideration would depend on the 25 likelihood of that particular patient 43 1 having bronchogenic carcinoma. If I 2 felt that in that particular patient 3 bronchogenic carcinoma was unlikely, 4 then I wouldn't necessarily work it out 5 further. 6 Q. And so if you're looking to 7 perform an immediate diagnostic 8 evaluation for the change in the pattern 9 of a chronic cough, one element of that 10 diagnostic evaluation would be chest 11 x-ray, right? 12 A. That would be one test that 13 could be performed. 14 Q. Is that -- isn't that 15 probably the best test to distinguish 16 among the various possible causes of a 17 change in the pattern of a chronic 18 cough? 19 A. That would be a test that 20 would frequently be done. As I 21 mentioned, whether or not I would decide 22 to do a chest x-ray would in large part 23 be determined by my impression of how 24 likely it is that that patient would 25 have some serious cause of the cough, 44 1 such as a bronchogenic carcinoma. 2 Q. And in trying to determine 3 that, one thing you would want to look 4 at is whether or not the patient is a 5 smoker? 6 A. Smoking history would be one 7 factor. 8 Q. That would be one of the 9 important factors, wouldn't it? 10 A. Yes. 11 Q. Can you think of any single 12 factor more important than that? 13 A. Probably age. 14 Q. Okay. 15 A. For example, the older a 16 patient is the more likely it is that 17 they would have a bronchogenic carcinoma 18 as a cause of cough. That could be an 19 unlikely cause of a cough in an young 20 patient and it would be a more likely 21 cause in an older patient. 22 MR. EISEN: Off the record. 23 (Discussion off record.) 24 Q. Okay. So we've talked then 25 about two factors, one being the age and 45 1 one being smoking. Are there any other 2 factors that would help you determine 3 when you have a patient with a chronic 4 cough, the pattern of that cough is 5 changed, you are looking to do an 6 immediate diagnostic evaluation and you 7 are trying to figure out whether or not 8 that should include a chest x-ray. Two 9 factors you've named so far are smoking 10 and age. Anything else? 11 A. Those would be the two main 12 ones I would consider. 13 Q. Okay. And when you're 14 talking about age, are you talking about 15 age even for nonsmokers? 16 A. Age would be an important 17 consideration whether the patient was a 18 smoker or not. 19 Q. And when you're looking at 20 smokers to determine whether or not to 21 do a chest x-ray in a patient with a 22 changed cough, do you look at simply 23 whether or not they smoke or do you 24 look at pack years? 25 A. I would look at pack years. 46 1 Q. So let's say you have a 2 patient who's a younger patient, but who 3 has smoked 25 years two packs a day, 4 may only be 36 years old, but has 5 smoked approximately two packs a day for 6 25 years. In terms of trying to figure 7 out whether you would do a chest x-ray 8 for a changed cough, that's the kind of 9 patient you would want to do a chest 10 x-ray on, am I right? 11 MR. RIEMENSCHNEIDER: Objection. 12 A. I think even in a patient 13 who has a two pack a day smoking 14 history, at age 35, lung cancer is very 15 unlikely. And I would not -- I would 16 not do a chest x-ray in that patient 17 based on those considerations. 18 Q. Okay. So now you have a 36 19 year old with 25 year two pack a day 20 history with a changed cough, and you 21 want to do a diagnostic evaluation, what 22 test would you do? 23 MR. RIEMENSCHNEIDER: Objection. 24 Go ahead. 25 A. The other things I would 47 1 take into consideration would be the 2 physical examination. We've talked so 3 far only about the history. And I 4 believe that a physical examination 5 would be very important in determining 6 whether or not in that particular 7 patient I would get a further diagnostic 8 evaluation done or not. For example, if 9 that patient who was a smoker, who you 10 mention age 35 with that smoking 11 history, if on examination the physical 12 findings are consistent with pneumonia, 13 then I would typically get a chest x-ray 14 in that patient. 15 If the physical findings are not 16 suggestive of pneumonia, I wouldn't 17 necessarily get a chest x-ray in that 18 patient. So what I'm trying to 19 illustrate is that the decision whether 20 or not to do a chest x-ray in that 21 patient is based on a number of factors, 22 including factors in the history such as 23 age, smoking history, the pattern of the 24 cough, but also based on physical 25 examination. 48 1 Another factor that enters into 2 that decision making would be what 3 treatment I would plan. If I would, 4 for example, decide based on history and 5 physical to use an antibiotic, and an 6 antibiotic that would be effective 7 against pneumonia, I wouldn't 8 necessarily order a chest x-ray at that 9 visit. I would advise the patient to 10 take the antibiotic until it was all 11 gone, to call me if the symptoms worsen, 12 or to call me if the cough did not 13 resolve with antibiotic treatment. 14 So it's a complex decision 15 whether or not to do a chest x-ray 16 based on history, physical and treatment 17 plan. 18 Q. All of that of course 19 assumes that you see the patient in the 20 office, doesn't it? 21 A. That would be based on -- in 22 that particular scenario would be 23 obviously if I was listening to the 24 patient's lungs, the patient is in the 25 office. But there are times, in fact 49 1 quite frequently, where I will prescribe 2 antibiotic over the phone for a patient 3 for respiratory symptoms. That happens 4 practically every single day in my 5 office. 6 Q. To determine physical 7 findings, you have to physically touch 8 the patient, true? 9 A. That is correct. 10 Q. Okay. And so if you are 11 trying to distinguish among, for 12 example, pneumonia in a patient with a 13 cough and bronchitis in a patient with a 14 cough, in order to do that you really 15 need to know what the physical findings 16 are, don't you? 17 A. You would -- could base that 18 decision either on history alone or on 19 history and physical findings. And the 20 reason I say that is you asked about 21 seeing the patient in the office. I 22 mentioned that it's very common for 23 primary care physicians to treat 24 respiratory infections over the phone. 25 And obviously at that point you're not 50 1 physically seeing the patient, not 2 examining the patient. But in that 3 situation you are relying on the 4 symptoms the patient reports as well as 5 the patient's answers to the questions 6 that you ask. So it's not at all 7 unusual to call in a prescription and to 8 advise the patient to call back or to 9 come back to see me after taking the 10 antibiotic. 11 Q. The patient can have both 12 lung cancer and pneumonia, am I right? 13 A. Yes. 14 Q. The patient can have both 15 lung cancer and bronchitis, am I right? 16 A. Yes. 17 Q. And in both cases if the 18 lung cancer itself is asymptomatic and 19 you treat the patient over the phone for 20 either bronchitis or pneumonia, you're 21 taking a risk that they don't have 22 coexisting lung cancer, aren't you? 23 A. There is a risk of that, 24 yes. As I mentioned when ordering 25 antibiotics over the phone, which again 51 1 I do on a daily basis, I'll give the 2 patient -- ask the patient certain 3 questions and I'll give them certain 4 instructions as far as follow up. 5 Q. And if you don't ask the 6 right questions, if you don't take a 7 comprehensive history of the present 8 illness on the phone, for example, 9 that's a deviation from the standard of 10 care, isn't it? 11 A. The standard of care requires 12 that we ask the patient about their 13 symptoms and based on the answers that 14 they give us, that we decide whether to 15 not treat at all, to treat over the 16 phone, or to ask the patient to come in 17 for a visit. 18 Q. But the standard of care 19 requires you to ask the right questions, 20 doesn't it? 21 MR. RIEMENSCHNEIDER: Objection. 22 Vague. Objection. 23 A. The standard of care requires 24 that we gather information from the 25 patient by asking them questions. 52 1 Q. But there's particular 2 information when you have a patient who 3 calls you with respiratory symptoms that 4 you have to elicit from a patient before 5 you can decide whether or not treatment 6 by antibiotics over the telephone is 7 acceptable, am I right? 8 A. Yes. 9 Q. And among the things you 10 want to elicit from the patient in such 11 a phone call would be any change in the 12 pattern of the cough, for example, 13 right? 14 A. Or the duration of the 15 cough, yes. 16 Q. Both of those things, am I 17 right? 18 A. If the patient has a chronic 19 cough, yes. 20 Q. Did Sherry Morse have a 21 chronic cough? 22 A. She had complained of cough 23 on a number of occasions. For example, 24 the -- looking at Dr. Azem's record from 25 January 16th of 1998, at that point her 53 1 complaints were of one week duration. 2 Q. And did Sherry Morse have a 3 chronic cough? 4 A. At times she did. 5 Q. Did she have chronic 6 bronchitis? 7 A. Yes. 8 Q. It's hard to have chronic 9 bronchitis without a chronic cough, 10 isn't it? 11 A. Correct. 12 Q. So to get back to what we 13 were talking about just a moment ago, 14 when you're on the phone with a patient 15 trying to figure out whether you can 16 order antibiotics over the phone safely, 17 you have to elicit certain things in the 18 history, such as change in the pattern 19 of cough and duration of the pattern of 20 cough. You've told me that already, am 21 I right? 22 A. Yes. 23 Q. You want to elicit from the 24 patient whether or not there's any 25 sputum, am I right? 54 1 A. Yes. 2 Q. You want to elicit from the 3 patient whether there's any chest pain, 4 am I right? 5 A. Yes. 6 Q. What else does you want to 7 elicit from the patient, what else does 8 the standard of care require you to 9 elicit from the patient? 10 A. Whether the cough is 11 associated with shortness of breath. I 12 think those would be the typical 13 questions I would ask. 14 Q. Okay. And in this 15 particular case -- would you also ask -- 16 would you also elicit from the patient 17 whether or not they had any complaints 18 of chest pain? 19 A. I mentioned that, yes. 20 Q. You did? Okay. 21 And once you elicit from the 22 patient chest pain, then you're going to 23 have to ask some further follow-up 24 questions under the standard of care, am 25 I right? 55 1 A. I would ask whether the 2 cough was associated with chest pain. 3 And if the -- for example, the chest 4 pain the patient reports is made worse 5 by coughing, made worse by taking a deep 6 breath, that would be important 7 information. 8 Q. Why? 9 A. Because those symptoms, for 10 example, chest pain with cough and chest 11 pain made worse by inspiration might be 12 suggestive of pneumonia. Now patients 13 with bronchitis also complain of chest 14 pain when they cough. That tends to be 15 a different location. 16 Q. Chest pain upon inspiration 17 or chest pain with cough, is that 18 something you would want to get the 19 patient into the office for as opposed 20 to prescribing medication over the 21 phone? 22 A. If the patient tells me that 23 they have chest pain with cough I will 24 ask them about the location of the chest 25 pain. Typically a patient with 56 1 bronchitis if they have chest pain will 2 complain of substernal chest pain. As 3 compared to pneumonia where the chest 4 pain is usually localized to one side or 5 the other. 6 Q. Is it fair to say you're 7 comfortable treating over the phone a 8 patient with chronic bronchitis? 9 A. I do frequently, yes. 10 Q. And that's within the 11 standard of care in your opinion? 12 A. Yes. 13 Q. And that's true even if the 14 patient is a smoker and has a history 15 of repeated bouts of pneumonia? 16 A. Yes. As I mentioned, part 17 of my instruction of the patient would 18 be not only to take the antibiotic but 19 also to have the patient arrange some 20 follow-up. 21 Q. What do you mean by follow 22 up? 23 A. I advise the patient that if 24 the cough worsens, they should call me 25 right away; that if the cough persists 57 1 after antibiotic treatment, then they 2 should see me. 3 Q. Chronic bronchitis and 4 bronchogenic carcinoma coexist 5 frequently, do they not? 6 (Discussion off record.) 7 MR. EISEN: Can we read back the 8 question unless you remember it? 9 (Pause.) 10 MR. EISEN: I got it. Go ahead. 11 A. That would depend on which 12 direction you look at that question 13 from. Probably the majority of patients 14 who have bronchogenic carcinoma have 15 chronic bronchitis. If you look at the 16 whole population of the patients with 17 chronic bronchitis, a tiny percentage of 18 them would have bronchogenic carcinoma. 19 And I would submit that of those 20 patients with chronic bronchitis who 21 have bronchogenic carcinoma, that it's 22 very unlikely that many of those 23 patients would be, for example, in their 24 30s, getting back to your previous 25 question. 58 1 Q. It is fair to say that most 2 of the folks who have chronic bronchitis 3 and carcogenic -- bronchogenic carcinoma 4 have extensive pack years of smoking, 5 that's fair to say, isn't it? 6 A. Yes. 7 Q. Two packs a day for 25 years 8 would be extensive pack history as far 9 as you're concerned, would it not? 10 A. In my experience that would 11 be a moderate smoking history. 12 Q. Okay. In any event, just so 13 I understand, you think it's within the 14 standard of care to treat a patient for 15 chronic bronchitis over the telephone 16 without ever having established -- well, 17 without ever having established by chest 18 x-ray whether or not there's any 19 abnormality in the lungs? 20 MR. RIEMENSCHNEIDER: Objection. 21 Asked and answered. Go ahead. 22 A. That's is correct. 23 Q. Now in this particular case 24 you're aware that Dr. Azem ordered 25 antibiotics on several occasions for 59 1 Sherry Morse without evaluating her in 2 person, correct? 3 A. Yes. 4 Q. Did he take an adequate 5 history each of the times he spoke with 6 her? 7 A. I don't know the history 8 that he took when he prescribed these 9 antibiotics. 10 Q. You have no way of knowing, 11 because he didn't write down in his 12 chart what history he took when he 13 prescribed those antibiotics, right? 14 A. Right. 15 Q. You don't know one way or 16 another whether he met the standard of 17 care in each of those instances where he 18 took -- where he spoke with Sherry Morse 19 on the phone and ordered antibiotics, am 20 I right? 21 A. Based on his testimony, I 22 understand that he advised her when he 23 prescribed those antibiotics to follow 24 up with him in the office. 25 Q. So would it be a surprise to 60 1 you if a patient took a -- was given 2 antibiotics over the phone for some 3 illness that they have and the illness 4 cleared up within a couple days that 5 they don't go ahead and make an 6 appointment even if told to do so? 7 A. Sometimes patients choose to 8 do that. 9 Q. Well, it's not surprising, is 10 it? 11 A. That doesn't surprise me. 12 Q. No, you would maybe even 13 expect it, wouldn't you? 14 A. I wouldn't expect it. I 15 wouldn't be surprised. As I mentioned, 16 some patients choose not to take our 17 advice. 18 Q. In any event, you still have 19 to -- to comport with the standard of 20 care you have to take the right history 21 when you order antibiotics over the 22 telephone? 23 MR. RIEMENSCHNEIDER: Objection. 24 Q. Now that's what you said, 25 right? 61 1 A. Yes. 2 Q. And you don't have any 3 information one way or the other what 4 history Dr. Azem took on several 5 occasions where he prescribed 6 antibiotics, right? 7 A. That information is not 8 contained in his records. 9 Q. Or in his deposition, because 10 he couldn't remember what the history 11 was on several of the occasions where he 12 ordered antibiotics, right? 13 A. I don't recall that 14 particular detail from his deposition. 15 Q. Okay. Well, let's assume 16 Dr. Azem can't remember what history he 17 took from Sherry Morse on particular 18 days when he prescribed antibiotics over 19 the phone. For those dates then we 20 have no information about the history he 21 took, right? 22 A. If he can't recall, that's 23 correct. 24 Q. And for those dates at least 25 you can't tell us whether or not he met 62 1 the standard of care, can you? 2 MR. RIEMENSCHNEIDER: Objection. 3 A. I can not say that. 4 (Brief recess.) 5 Q. You have a copy of Dr. 6 Azem's office records in front of you? 7 A. Yes. 8 Q. All right. Let's look, if 9 you will, at the history Dr. Azem took 10 on January 16, 1998. In terms of 11 cough, what history did he elicit about 12 Sherry Morse's cough on that day? 13 MS. HENRY: I'm sorry, Brian, I 14 didn't hear the date. 15 MR. EISEN: January 16, 1998. 16 MS. HENRY: Okay. You're 17 starting at the beginning? 18 MR. EISEN: Why not? 19 MS. HENRY: That was in person. 20 Since we were talking on the phone, I 21 thought you were going on to those. 22 MR. EISEN: Oh, no. 23 Q. The history he took of cough 24 on January 16, 1998 was what? 25 A. In his notes he wrote cough, 63 1 chest tightening, chills for one week, 2 positive weakness and body aches. 3 Q. He also, by the way, notes 4 that Sherry Morse had had pneumonia on 5 multiple occasions, right? 6 A. Yes. 7 Q. And also chronic bronchitis? 8 A. Yes. 9 Q. What questions did he ask 10 about cough on January 16, 1998? 11 A. He doesn't record all of the 12 questions that he asked in his note. 13 What appears in the note is the 14 association of the symptom of chest 15 tightening, sore throat and chills, 16 along with a cough as well as the 17 duration of the cough for one week as 18 well as the association of weakness and 19 body aches with that cough. 20 Q. Is it your conclusion that 21 the cough that Sherry had on January 16, 22 1998 is the same as her chronic cough 23 or different, or can't you say? 24 MR. RIEMENSCHNEIDER: Objection 25 as to characterization. Go ahead. 64 1 A. The duration of this cough 2 for one week suggests to me that this 3 is a cough caused by an acute 4 respiratory illness. 5 Q. Would that be different than 6 from her chronic cough? 7 MR. RIEMENSCHNEIDER: Objection. 8 Q. Or can't you say? 9 A. What I would say is this 10 appears to be an acute illness or not a 11 chronic illness reported in this note. 12 Q. So is the cough that Sherry 13 complained about on January 16, 1998 the 14 same or different than the cough -- her 15 chronic cough? 16 MR. RIEMENSCHNEIDER: Objection. 17 There's been no foundation that she had 18 a chronic cough. 19 MR. EISEN: The doctor's just 20 testified today that she had a chronic 21 cough. 22 MR. RIEMENSCHNEIDER: Let me 23 finish my objection. 24 MR. EISEN: I'm sorry. 25 MR. RIEMENSCHNEIDER: There's 65 1 been no foundation that she had a 2 chronic cough prior to seeing Dr. Azem. 3 Q. Okay. Do you remember 4 before when you testified that Sherry 5 Morse had a chronic cough, do you 6 remember that testimony, Dr. Rozman? 7 MR. RIEMENSCHNEIDER: He said at 8 the times. 9 A. I said at times during her 10 history she had a chronic cough. 11 Q. When? 12 A. When did I say that? 13 Q. No, when did she have a 14 chronic cough, if you can tell us? 15 A. That was during the time we 16 were talking about chronic bronchitis. 17 And you asked if a patient with chronic 18 bronchitis would have a chronic cough. 19 My answer was yes. 20 Q. And then on January 16, 1998 21 when Dr. Azem wrote that Sherry had 22 chronic bronchitis, it's fair to say 23 then she had a chronic cough when she 24 presented to Dr. Azem, am I right? 25 A. Well, he doesn't record that 66 1 in his note. And for example, I would 2 expect that if a physician talked to a 3 patient who was -- who had a chronic 4 cough, as you point out had a change in 5 that cough pattern, that that would be 6 indicated in the note. What this note 7 suggests to me distinctly is that this 8 is a cough caused by an acute illness. 9 I wouldn't expect that, for 10 example, if she reported a chronic cough 11 which was now either more frequent, more 12 severe, associated with new symptoms 13 that the note would appear like this. 14 I would expect that he would indicate 15 that on the note. The fact that he 16 mentions she had cough, chest 17 tightening, sore throat, chills for one 18 week suggests that is an acute illness 19 of one week's duration and not as you 20 described a change in her chronic cough. 21 Q. So you think she didn't have 22 a change in her chronic cough because 23 Dr. Azem didn't chart a change in her 24 chronic cough? 25 A. He carefully charts the 67 1 duration of this particular illness as 2 being of one week's duration. So that 3 suggests to me that she had an acute 4 illness which was lasting for one week. 5 Q. Or he simply didn't ask the 6 right questions, right? 7 MR. RIEMENSCHNEIDER: Objection. 8 A. I wouldn't expect Dr. Azem 9 or any other physician to write down all 10 of the questions that he or she would 11 ask the patient or to include all of 12 that information. I think that this is 13 a summary of what Dr. Azem felt was 14 really important features of this 15 particular illness when he saw her on 16 that day. 17 Q. I agree with you that it's a 18 summary, but can you tell me what it 19 summarizes? In other words, did she 20 have a dry cough or wet cough or don't 21 you know? 22 A. He doesn't describe it as 23 either dry or wet. 24 Q. So you don't know, do you? 25 A. No. 68 1 Q. Was it a hacking cough or 2 don't you know? 3 A. He doesn't describe it as 4 being a hacking cough. 5 Q. Therefore you don't know, 6 right? 7 A. Correct. Although I'm not 8 sure that the standard of care requires 9 a physician to record whether a cough 10 was hacking or not hacking. 11 Q. And I didn't say that it 12 did. 13 A. Like, for example, I can't 14 recall any time I described that a cough 15 is not being a hacking cough. 16 Q. But you did tell us before 17 about the questions you're supposed to 18 ask about the cough, didn't you? 19 A. Right. 20 Q. But he didn't seem to ask 21 any of those, other than he found out 22 the duration of the cough was one week, 23 correct? 24 MR. RIEMENSCHNEIDER: Just note 25 an objection. 69 1 A. When you asked me earlier 2 you asked me about the questions that 3 the standard of care would require that 4 we ask a patient in eliciting history of 5 a cough. 6 Q. Yes. 7 A. I don't believe the standard 8 of care requires that we specifically 9 list the answers to all of those 10 questions. 11 Q. You have to just ask them, 12 right? 13 A. Correct. 14 Q. Okay. 15 A. Right. 16 Q. And you have to take account 17 of the information you get, right? 18 A. Right. 19 Q. But you can't tell from his 20 note that he even asked any of those 21 questions, can you? 22 A. That is correct. 23 Q. And nothing in his testimony 24 tells you that he asked any of those 25 questions, correct? 70 1 A. Correct. 2 Q. So you can't tell even on 3 this visit, January 16, 1998 whether or 4 not Dr. Azem comported with the standard 5 of care, true? 6 MR. RIEMENSCHNEIDER: Objection. 7 A. I don't believe the standard 8 of care requires that a physician record 9 all of the answers to all of those 10 questions that you -- that we discussed 11 earlier. 12 Q. All I'm asking, though, is 13 you can't tell as you look at this note 14 whether or not he complied with the 15 standard of care? 16 MR. RIEMENSCHNEIDER: Objection. 17 Q. I'm not saying that you can 18 tell from the note that he didn't, I'm 19 just asking whether you can tell from 20 the note that he did? 21 A. Specifically from the note I 22 can't. 23 Q. And then from his testimony 24 you can't either, right? 25 A. Correct. I would submit, 71 1 though, that you could look at similar 2 notes in many physicians' charts, for 3 example in my charts, that would be very 4 similar to this note, and would be 5 reflective of a physician who is 6 practicing well within the standard of 7 care. 8 Q. I understand. And you could 9 also have a physician who's practicing 10 well below the standard of care and have 11 this very same note, true? 12 A. Correct. 13 Q. And in terms of history of 14 cough, of all of the notes we have, 15 from all of the interactions between Dr. 16 Azem and Sherry, this is the best 17 history of cough he took, am I right? 18 A. Well, it is the most 19 detailed note regarding a cough that he 20 left in his chart. 21 Q. And it is the most detailed 22 history of cough that he left in the 23 chart, and yet it is insufficient to 24 tell us for sure that he complied with 25 the standard of care, correct? 72 1 MR. RIEMENSCHNEIDER: Objection. 2 A. My answer would be the same 3 as I testified earlier. 4 Q. Which is yes? 5 A. That this note does not 6 include all of the details that you 7 suggest are necessary to reflect that he 8 practiced within the standard of care. 9 Q. Okay. So of all of the 10 interactions between Dr. Azem and Sherry 11 Morse, you don't have sufficient 12 information from the chart to show that 13 -- specifically that he complied with 14 the standard of care on any of those 15 occasions, true? 16 MR. RIEMENSCHNEIDER: What are 17 you saying, every time that he sees the 18 patient there is a discussion of cough 19 when she sees him for a different -- 20 MR. EISEN: I'm not asking -- 21 MR. RIEMENSCHNEIDER: Well, let's 22 skip the generalness of the question. 23 Q. Fair enough. 24 A. I think that the standard 25 requires, for example on January 16th, 73 1 1998, that Dr. Azem do as he did, take 2 a history of that particular illness, he 3 takes a past medical illness, her social 4 history, family history and does an 5 examination. And then based on that 6 information determines how he should 7 proceed with either any evaluation 8 and/or treatment 9 Q. And of course -- 10 A. Sorry. And I think a 11 physician who could well be practicing 12 within the standard of care could 13 certainly write a note like this. 14 Q. Right. 15 A. So I don't think it's fair 16 to look at this note and to state that 17 he, for example, did not comport with 18 the standard of care. 19 Q. But by the same token, I 20 think you've already said her today that 21 it's also not fair to look at his note 22 and say that he comported with the 23 standard of care, right? 24 A. I would state that based on 25 the note alone, I can't state 74 1 specifically whether he comported with 2 the standard of care. However, looking 3 at his actions, I believe his actions 4 are appropriate given the circumstances. 5 And his actions would be within the 6 standard of care. 7 For example, in a patient who has 8 a history of chronic bronchitis, a 35 9 year old woman who has a smoking history 10 who has an illness as reported here, 11 with cough of one week duration, 12 especially associated with a chest 13 tightening and sore throat, who had 14 chills for a week, that his prognosis of 15 bronchitis is appropriate and his 16 prescription of an antibiotic such as 17 Erythromycin is also appropriate and 18 within the standard of care. 19 Q. Okay. On the other hand, if 20 there's a change in the pattern of 21 cough, he needs to embark upon an 22 immediate diagnostic examination. 23 You've testified to that already today, 24 haven't you? 25 A. When I testified to that I 75 1 also mentioned that part of that 2 evaluation would include an assessment 3 of the likelihood of this particular 4 patient having a serious cause of that 5 cough. And as I mentioned earlier in a 6 35 year old patient, the likelihood of 7 there being a serious cause of this 8 cough is very small. And that would be 9 a different situation than, for example, 10 if this were a 65 year old patient. So 11 what the standard requires as we 12 evaluate a patient is to assess the 13 likelihood of various possibilities. 14 And we often call that a differential 15 diagnosis where we would consider in our 16 mind how likely is it that she has this 17 diagnosis as compared to another 18 diagnosis. And after that process is 19 done, then to determine whether any 20 further evaluation is necessary. 21 Q. Are you saying there's 22 nothing Sherry Morse could have told Dr. 23 Azem on January 16, 1998 that would have 24 required him to put in his differential 25 diagnosis bronchogenic carcinoma? 76 1 A. Oh, I didn't say that, no. 2 Q. Okay. What kinds of things 3 could she have told him on January 16, 4 1998 that would have required him to put 5 bronchogenic carcinoma in his 6 differential diagnosis? 7 A. If, in addition, to the 8 symptoms she records -- he records here, 9 she also complained of, for example, 10 coughing up blood or hemoptysis, if she 11 had weight loss, if she had a localized 12 pain on one side of her chest. 13 Q. Okay. 14 A. Those would be symptoms that 15 would be suggestive of a bronchogenic 16 carcinoma. But I think in a patient 17 with her history, the likelihood at this 18 point of her having bronchogenic 19 carcinoma would be small, and that he 20 would be well within the standard of 21 care to not get a chest x-ray at this 22 visit. 23 Q. In terms of getting a chest 24 x-ray, he's not within the standard of 25 care. But again, you can't say in 77 1 terms of whether he took an adequate 2 history, you can't say whether he 3 comported with the standard of care on 4 January 16, 1998 in terms of whether he 5 took an adequate history of that cough, 6 that's what you've already testified 7 here to today, am I right? 8 MR. RIEMENSCHNEIDER: Objection 9 to your phrasing on that. I think he's 10 made it very clear. 11 A. I think I've testified in 12 detail about my feelings on this history 13 and visit. 14 Q. Okay. And I just want to 15 see if I got it right. I thought what 16 you told me was you can't say from this 17 note or from Dr. Azem's deposition 18 whether or not he took a history on 19 January 16, 1998 that comported with the 20 standard of care. Did I get your 21 testimony wrong? 22 A. The -- you asked that 23 question in -- 24 Q. Did I get your testimony 25 wrong? Doctor, that's really all you 78 1 need to answer. 2 MR. RIEMENSCHNEIDER: Wait, wait. 3 Let him answer the question. 4 A. Let me answer the question. 5 When you asked that question you asked 6 about a number of questions I would 7 typically ask when I was seeing a 8 patient. As I mentioned a number of 9 times earlier, it's not required by the 10 standard of care that all of these 11 questions be recorded in the chart. The 12 standard of care requires that we take 13 an adequate history, as you would 14 described the right history from the 15 patient. And the standard practice is 16 then to record that information in the 17 chart. The standard of care requires 18 that we then act appropriately on that 19 information, and I believe that's what 20 Dr. Azem did. 21 Q. You would disagree with the 22 statement that any change in the 23 character or pattern of a chronic cough 24 warrants immediate diagnostic evaluation 25 with special attention directed toward 79 1 the detection of bronchogenic carcinoma? 2 MR. RIEMENSCHNEIDER: Objection. 3 Asked and answered. 4 MR. EISEN: Different question. 5 A. I would disagree with the 6 blanket nature of that statement. 7 Q. Okay. 8 A. As I mentioned -- 9 Q. I just asked if you would 10 disagree. 11 A. As I mentioned with many 12 patients that statement would indeed be 13 true. But as I mentioned also, it's 14 important to consider the likelihood of 15 a serious cause of the cough in that 16 particular patient. So those actions 17 might be taken in some patients and not 18 in others based on the likelihood that 19 that particular patient either had or 20 did not have that serious cause of the 21 cough. 22 Q. Let's move on to September 23 2nd, 1998. That's one of the days that 24 Dr. Azem ordered Zithromax for Sherry 25 Morse. Feel free to pull the pharmacy 80 1 record if that's helpful. 2 A. Do you have a copy of that? 3 My original copy -- 4 Q. It's tough to read. Even 5 the original is tough to read, I'll be 6 honest with you. 7 MR. RIEMENSCHNEIDER: What are 8 you looking for? What are you looking 9 at, September what? 10 MR. EISEN: September 2, 98. 11 Q. September 2, 98 Zithromax 12 prescription, is that correct? 13 A. Yes, yes. 14 Q. Do you know anything about 15 the history that Dr. Azem took that day? 16 MR. RIEMENSCHNEIDER: Objection. 17 A. No. 18 Q. And again, you can't tell me 19 whether or not his analysis of Sherry 20 Morse's problem on that day and his 21 decision to order antibiotics over the 22 phone comported with the standard of 23 care since you have no idea what 24 Sherry's complaints were, right? 25 MR. RIEMENSCHNEIDER: Objection. 81 1 Relevance. 2 A. Dr. Azem testified that when 3 he would prescribe antibiotics over the 4 phone he would advise the patient to see 5 him in the office in two days. And I 6 believe that that would be appropriate 7 when prescribing an antibiotic over the 8 phone to advise the patient to come in 9 for an evaluation. 10 Q. Okay. In terms of the 11 history he took on September 2nd, 1998, 12 you can't tell whether the questions he 13 asked were appropriate, inappropriate, 14 above the standard of care or below the 15 standard of care, can you? 16 MR. RIEMENSCHNEIDER: Objection. 17 A. There's no record of his 18 questions. 19 Q. So then you can't? 20 A. Correct. 21 Q. The same is true for 22 November 15, 1999, when again Dr. Azem 23 prescribed Zithromax, you can't tell us 24 whether the history he took that day 25 from Sherry Morse comported with the 82 1 standard of care or was a deviation from 2 the standard of care, correct? 3 A. There's no record of his 4 history from that day. He has testified 5 that he advised her to come in in two 6 days which I think is appropriate. 7 Q. I understand. But in terms 8 of whether or not he asked the 9 appropriate questions to even concern 10 himself with how important it was for 11 her to come in, you can't tell that 12 from the record, right? 13 A. Right. 14 Q. Same is true for August 15 22nd, 00, Dr. Azem prescribed 16 Erythromycin for Sherry Morse, right? 17 A. I can't find that on the 18 sheet, but if that is indeed true -- 19 Q. Well, then let's just assume 20 the pharmacy records reflect that on 21 August 22nd, 00 Erythromycin was 22 prescribed by Dr. Azem for Sherry Morse. 23 Assuming that to be true, you can't tell 24 us whether the history he took on that 25 date complied with the standard of care 83 1 or fell below the standard of care? 2 MR. RIEMENSCHNEIDER: Objection. 3 A. His history is not recorded 4 in his notes. 5 Q. Therefore you can't tell us 6 whether his history comported with the 7 standard of care or fell below? 8 A. For that particular report, 9 no. For that particular call in, no. 10 Let me just state that this pattern of 11 calling in prescriptions over the phone 12 for symptoms reported by the patient 13 over the phone is very commonly done, 14 and something that as I say, I said 15 earlier, I do frequently, probably on a 16 daily basis in my practice. So a 17 physician practicing within the standard 18 of care could very well have this 19 pattern of prescribing. 20 Q. As could -- as could a 21 physician practicing well below the 22 standard of care, right? 23 A. Yes. 24 Q. And when a patient of yours, 25 you prescribe them antibiotics over the 84 1 phone three or four times and you ask 2 them to come into the office and they 3 regularly don't do that, do you just 4 continue prescribing antibiotics over 5 the phone or at some point do you say, 6 hey, I'm not doing this anymore, you 7 come into my office, I'll evaluate you 8 and then decide to give you antibiotics 9 or not? 10 MR. RIEMENSCHNEIDER: Objection. 11 Go ahead. 12 A. In that situation, I believe 13 I would still prescribe the antibiotics 14 if I felt that the patient required them 15 for their symptoms. I would not 16 withhold antibiotics which I think would 17 help to cure or clear up the infection 18 that they're reporting to me. I, as 19 Dr. Azem testified he -- he did in this 20 case, would recommend that that patient 21 come into the office and see me for a 22 visit. As I mentioned earlier, some 23 patients decide to not take our advice. 24 Q. And you have -- you don't 25 feel you have an obligation at some 85 1 point to say, hey, if you don't come in 2 this time, I'm not doing this again, I'm 3 not prescribing you pills over the 4 phone? 5 A. I would be concerned at that 6 moment that I would not be prescribing 7 antibiotic that that patient might need 8 at that moment. I would make it clear 9 to the patient that I'm concerned about 10 the pattern and that she would need to 11 come in to see me in the office, but I 12 would still prescribe the antibiotic. I 13 would not withhold the medication that I 14 felt was appropriate that patient. 15 Q. And at that point if you 16 essentially warned the patient, hey, you 17 really need to come in, is that 18 something you would document in the 19 chart? 20 MR. RIEMENSCHNEIDER: Objection. 21 A. Not necessarily. 22 Q. And when you do have a 23 patient for whom you prescribe 24 antibiotics over the phone, you make 25 your best effort to try to document in 86 1 the chart, A, the fact you've prescribed 2 those antibiotics, and B, what the 3 symptoms that -- or what the history you 4 elicit is? 5 A. I try to do that. I must 6 admit that there are times when the 7 patient calls in the evening or on the 8 weekend when I don't have access to my 9 charts that I do not record that in the 10 patient's chart. 11 Q. If you're in the office on a 12 weekday and you talk to a patient, you 13 get symptoms, you prescribe antibiotics, 14 that's something you try to chart? 15 A. Yes. 16 Q. That's what you're supposed 17 to do? 18 A. Yes. 19 Q. You would expect Dr. Azem to 20 follow that same rule, assuming he's in 21 the office on a weekday and he's 22 prescribing antibiotics for a patient, 23 true? 24 A. Correct. 25 Q. Do you know whether he did 87 1 that in this case -- 2 A. I know that there are a 3 number of times where he prescribed 4 antibiotics that he did not record that 5 in the chart. 6 Q. And you never checked to see 7 whether those were weekdays or weekends, 8 for example? 9 A. I didn't research that. I 10 -- I would say that of the two actions, 11 the more important is prescribing the 12 appropriate antibiotic, and ideally we 13 would always write in the chart what 14 we've done, but practically that 15 sometimes doesn't happen. 16 Q. And because Dr. Azem didn't 17 record in the chart anything about the 18 interaction with Sherry Morse, in fact 19 if we didn't get his pharmacy records, 20 we wouldn't even have know that those 21 visits occurred, would we? 22 A. Correct. Although he did 23 testify in his -- in his deposition that 24 he had prescribed for her antibiotics 25 over the phone. 88 1 Q. Although he only testified to 2 that after we showed him the pharmacy 3 records, right? 4 A. I don't know the 5 circumstances under which he testified 6 that. 7 Q. I think you know what I'm 8 going to ask you to do next, Doctor. 9 Let me mark this as an exhibit. 10 - - - - - 11 (Thereupon, Deposition 12 Exhibit-2 was marked for 13 purposes of identification.) 14 - - - - - 15 Q. All right. Let me hand you 16 what's been marked as Plaintiff's 17 Exhibit 2. Can you confirm for me 18 that's a copy of the notes you took as 19 you reviewed the notes in this case? 20 A. Yes. 21 Q. Would you mind handing me 22 back my copy? Thank you. 23 Can you read those into the 24 record, please? 25 A. Yes. This is a sheet of 89 1 handwritten notes which I took as I 2 reviewed the records in this case. The 3 first line says, Sherry Morse. Two 4 lines down, pneumonia, chronic 5 bronchitis, PID. MVA, which stands for 6 motor vehicle accident, two pack per day 7 smoker. 1-16-98, cough, chest 8 tightening, sore throat, chills times 9 one week. Past medical history, 10 pneumonia, parenthesis, multiple 11 occasions, end parenthesis. 101.5, 12 respirations 20, rhonchi, treatment EES 13 TID DAC. Follow-up one week if not 14 better. 15 Next visit, 3-26-99, sty in eye. 16 MVA, motor vehicle accident 12-22-00. 17 Office visit, 1 question 9-01. The 18 question that was a question there was a 19 hole punch right where the date was. 20 MRI 1-10 left lung mass, arrow, 21 mediastinum met to T-5. 1-12-01, chest 22 x-ray, left upper node mass, increase or 23 widened mediastinum. 1-12-01, CT, left 24 upper lobe mass with adenopathy. 25 1-12-01, bone scan, T, comma, L spine 90 1 right orbit. 1-17-01, biopsy, poorly 2 differentiated squamous cell carcinoma. 3 ER 12-20, back pain, parenthesis, 4 slipped on ice, end parenthesis, arrow, 5 tri-muscular strain in quotes. 12-23, 6 MVA, parenthesis, T/L strain. 12-31, 7 back pain, arrow, right hip, left 8 shoulder pain, acute on chronic, low 9 back pain. L/S strain and sprain. And 10 then in the left column there's just a 11 recording of visits and the chief 12 complaints at those visits. Would you 13 like me to read those too? 14 Q. You can skip the dates 15 because those are all pretty clear. Can 16 you just read the substance next to each 17 of the dates? 18 A. Sure. Sty; burn; no show; 19 low back pain; lymph node groin; 20 question vaginitis; shoulder strain; 21 otitis media; question URI; bronchitis; 22 sinusitis; parenthesis, cough, post 23 nasal drip, sputum, end parenthesis; 24 lungs, dash, wheezes, green sputum, back 25 pain, chest pain, tired. MVA 12-22 91 1 arrow MRI. 2 Q. Okay. This is -- was your 3 effort to sort of summarize for your own 4 purposes the information that you got 5 from Dr. Azem's chart? 6 A. Correct. 7 Q. One of the things you 8 mentioned in -- as you were reading that 9 were wheezes in the lungs on October 19, 10 2000, am I right? 11 A. Yes. 12 Q. Okay. Wheezes in the lungs 13 is something very consistent with 14 pneumonia, isn't it? 15 A. It's actually more consistent 16 with bronchitis than pneumonia. A 17 typical finding of pneumonia on a 18 physical examination are rales, whereas 19 on physical examination wheezes are more 20 consistent with bronchitis. 21 Q. You've certainly heard of 22 pneumonia where the patient has wheezing 23 and not rales, am I right? 24 A. That can happen, but wheezes 25 are much more suggestive of bronchitis. 92 1 Q. I understand. But if you're 2 looking at the different diagnosis of a 3 patient with cough and a wheezing, 4 you're going to look at both bronchitis 5 and pneumonia, aren't you? 6 A. When I would be evaluating 7 such a patient, I would listen carefully 8 to their lungs, and if I heard wheezes 9 I would be more suspicious of bronchitis 10 than pneumonia; and if I heard rales, I 11 would be more suspicious of pneumonia 12 than bronchitis as well as take into 13 account various elements of the history. 14 Q. Sure. 15 A. For example in a patient who 16 has chest tightness and a cough and has 17 wheezes on examination, that's much more 18 consistent with a bronchitis 19 Q. On the other hand, if you 20 throw in sputum, positive, it may be 21 more consistent with pneumonia, am I 22 right? 23 A. Sputum is suggestive of 24 either bronchitis or pneumonia. The 25 presence of sputum I don't think 93 1 differentiates between one or the other. 2 Q. So if you have a patient 3 with cough, post nasal drainage, sputum 4 for a few days and congestion with 5 wheezes in the lungs, that's somebody in 6 who the differential includes bronchitis 7 and pneumonia, am I right? 8 A. The differential would 9 include both bronchitis and pneumonia, 10 but bronchitis would be way ahead of 11 pneumonia in that particular scenario. 12 MR. RIEMENSCHNEIDER: He's 13 referring to October 19. 14 Q. If you wanted to 15 differentiate between the two, 16 bronchitis and pneumonia, is the best 17 way to do it with a chest x-ray? 18 MR. RIEMENSCHNEIDER: Over 19 physical exam? 20 A. As I mentioned earlier -- 21 MR. EISEN: Dirk, that's a 22 leading objection. That's absolutely 23 designed to tell him what the answer is. 24 It's unfair and if you do it again I am 25 going to stop the deposition and get a 94 1 court order. 2 MR. RIEMENSCHNEIDER: Do what you 3 -- well, why don't you make your 4 question more clear. 5 A. As I testified -- 6 MR. RIEMENSCHNEIDER: If you're 7 going to be referring to certain days, 8 refer to them. 9 MR. EISEN: I don't think I need 10 to do that. I'm asking the question. 11 Q. Isn't the best way to 12 distinguish between bronchitis and 13 pneumonia a chest x-ray? 14 A. I testified earlier that 15 whether or not a chest x-ray is ordered 16 depends on what is found in the history 17 and physical examination. And I believe 18 that based on the history and physical 19 exam recorded here on October 19th, 20 2000, it is most likely that the patient 21 has bronchitis, and given these 22 findings, I don't think a chest x-ray 23 was indicated. 24 Q. Okay. Now, if you examine 25 the patient on October 19, 2000, and you 95 1 conclude you want to distinguish between 2 bronchitis and pneumonia by a diagnostic 3 study, the study you would want to order 4 would be a chest x-ray, am I right? 5 A. If I would decide to do a 6 diagnostic study, correct, it would be a 7 chest x-ray. 8 Q. It's just your opinion in 9 this case that you didn't need a 10 diagnostic study? 11 A. Correct. 12 Q. Okay. And the thing on 13 October 19, 2000 that tells you it's 14 most likely bronchitis and not pneumonia 15 is what? 16 A. There are several things. 17 One would be the association of post 18 nasal drainage along with the cough, the 19 fact that the throat appeared injected, 20 that there were bilateral wheezes, that 21 there were no rales or any other finding 22 suggestive of pneumonia that would -- 23 that were recorded, as well as the 24 history of bronchitis in this patient. 25 Q. Did Sherry Morse on October 96 1 19, 2000 have chronic bronchitis? 2 A. She had had a history of 3 chronic bronchitis prior -- made prior 4 to that visit. 5 Q. So she still had -- so is 6 October 19, 2000 an acute exacerbation 7 of a chronic illness, or is it part of 8 the chronic illness? 9 A. I think that this is acute 10 respiratory illness which is 11 superimposed on any other respiratory 12 condition she may have. 13 Q. And you can't tell -- 14 A. Again the -- 15 Q. Sorry. 16 A. -- the duration of the 17 symptoms for a few days suggests that 18 this is an acute illness. 19 Q. Somehow this bronchitis, 20 October 19, 2000, was different from the 21 bronchitis she had been suffering from 22 for years, chronic, right? 23 MR. RIEMENSCHNEIDER: Objection. 24 A. The association of wheezes in 25 her lungs with post nasal drainage and 97 1 injection of her throat suggest that 2 this is an infection of a few days' 3 duration and not an exacerbation of 4 chronic bronchitis. 5 For example, if a patient has 6 chronic bronchitis and they develop an 7 exacerbation of that, that would not 8 likely be associated with other symptoms 9 of a respiratory infection such as 10 injected throat and post nasal drip. 11 This would suggest that Sherry on that 12 day had as many as us have an upper 13 respiratory infection which caused sore 14 throat, post nasal drip and a cough. 15 Q. Is most acute bronchitis 16 viral or bacterial in nature? 17 A. I don't know. I would say 18 that it's typically treated with an 19 antibiotic, but often without diagnostic 20 studies such as -- without diagnostic 21 studies which would differentiate viral 22 versus bacterial. 23 Q. All right. The visit of 24 December 8, 2000, do you see that? 25 A. Yes. 98 1 Q. Do you think on December 8, 2 2000 pneumonia should have been in the 3 differential diagnosis for Sherry Morse? 4 A. The presence of bilateral 5 rhonchi in the lungs is also more 6 suggestive of bronchitis than it is 7 pneumonia. I think pneumonia would be 8 in the differential but not high enough 9 to require the specific test to rule it 10 out. 11 Q. Sure. I was just asking if 12 it's in the differential. 13 A. It's in the differential, 14 yes. 15 Q. Also in the differential on 16 October 19th, 2000, right? 17 A. Yes. 18 Q. And also in the differential 19 on January 16, 1998? 20 A. Yes. I think that -- 21 Q. I just asked if it was in 22 the differential. 23 A. It is. 24 MR. RIEMENSCHNEIDER: If you want 25 to finish your answer, go ahead, Doctor. 99 1 A. Let me just point out that 2 just because pneumonia is in a 3 differential diagnosis does not require 4 that it be specifically investigated. 5 Q. Okay. That's it? 6 A. Yes. 7 Q. We don't know whether 8 pneumonia is in the differential 9 diagnosis for any of the occasions where 10 Dr. Azem spoke with Sherry Morse on the 11 phone and then ordered antibiotics, 12 right? 13 A. He doesn't record a 14 differential diagnosis for those phone 15 calls, correct. 16 Q. So there's -- at least three 17 times in the course of Dr. Azem's 18 treatment of Sherry Morse where 19 pneumonia was in the differential and he 20 did not order a chest x-ray, and 21 perhaps, we don't know, as many as 10 22 times, right? 23 A. Correct. 24 Q. Now you know that there was 25 a chest x-ray that Sherry Morse had 100 1 September 24, 1997, right? 2 A. Yes. 3 Q. And you know some of the 4 issues in this case revolved around that 5 chest x-ray, don't you? 6 A. Yes. 7 Q. Have you read the report or 8 you have not read the report? 9 A. I have not read the report. 10 I've read people's discussion of the 11 report, I have not read the report 12 itself. 13 Q. And you've indicated you 14 order chest x-rays, what, every single 15 day? 16 A. Frequently. I wouldn't say 17 every day, but frequently. 18 Q. Several times a week? 19 A. Yes. 20 Q. And you feel you understand 21 what types of things need to be in a 22 report to communicate effectively from a 23 radiologist to an internal medicine 24 physician or a family practice doctor? 25 MS. JENNY: Objection. 101 1 A. Yes. 2 Q. And if a radiologist believes 3 that it's important to convey to a 4 referring physician that a finding on a 5 chest film could be cancer, do you 6 expect to see an indication in the 7 written report that the finding could be 8 cancer? 9 MS. JENNY: Objection. 10 A. If the radiologist feels that 11 is important, then I believe that it 12 should be indicated in the report. 13 Q. And the way to indicate it 14 in a report would be either to refer to 15 a suspicious mass or a malignancy or a 16 nodule or cancer? 17 MR. RIEMENSCHNEIDER: Objection. 18 Q. Something along those lines, 19 am I right? 20 MS. JENNY: Objection. 21 A. Yes. 22 Q. And let's assume that none 23 of those things is in the report, but 24 the radiologist thinks it's important to 25 communicate to the referring physician 102 1 that a finding could be cancer. Do you 2 think the use of a phrase such as 3 compare with prior films accomplishes 4 that task? 5 MS. JENNY: Objection. 6 MR. RIEMENSCHNEIDER: Objection. 7 A. No. 8 Q. And do you think the use of 9 the phrase clinical correlation 10 recommended accomplishes that task? 11 MS. JENNY: Objection. 12 A. Not necessarily. 13 Q. I take it then if a 14 radiologist believes it's important to 15 convey to a referring physician that a 16 finding could be cancer, the use in the 17 report of both clinical correlation 18 recommended and compare with prior films 19 doesn't convey that information either? 20 MS. JENNY: Objection. 21 MR. RIEMENSCHNEIDER: Objection. 22 A. Not necessarily. 23 Q. And if -- if a radiologist 24 wants to convey the information that it 25 could be cancer, the radiologist needs 103 1 to do it in a way that's unmistakable 2 so that we don't risk the internal 3 medicine or family practice doctor 4 missing it entirely, right? 5 MS. JENNY: Objection. 6 A. If the radiologist feels that 7 it's important that that be 8 communicated, then it should be 9 communicated. 10 Q. In fact, really, if the 11 radiologist thinks it's important to 12 communicate that a finding could be 13 cancer, she ought to communicate it 14 directly, am I right about that? 15 MS. JENNY: Objection. 16 Q. In other words, a phone call 17 or a face-to-face? 18 MS. JENNY: Objection. 19 A. It would depend on how high 20 in the differential cancer would be. 21 Q. Well, if it's high enough 22 that the radiologist thinks it's 23 important to communicate, it ought to be 24 important enough to communicate 25 directly, don't you think? 104 1 MS. JENNY: Objection. 2 A. Yes. 3 Q. Well, what if a radiologist 4 is looking at a chest film on a patient 5 and is thinking to herself, boy, my 6 differential is pneumonitis, scarring 7 and lung cancer. But if the patient's 8 a smoker, my differential would be 9 pneumonitis 1, lung cancer 2? 10 MR. RIEMENSCHNEIDER: Just note 11 an objection. 12 Q. Under those circumstances 13 would you expect the radiologist to take 14 some steps to get that information 15 whether or not the patient is a smoker? 16 MS. JENNY: Objection. 17 MR. RIEMENSCHNEIDER: You're 18 getting into questions outside of his 19 field of expertise, but go ahead. 20 A. It would depend on where in 21 the differential cancer would be or how 22 likely the finding of cancer would be. 23 If it's in the differential but not 24 likely, I don't think that it would 25 necessarily need to be included in the 105 1 report or a phone call would not need 2 to be made. 3 Q. It's in the differential and 4 the radiologist thinks it's important 5 enough to communicate, then they ought 6 to get the information the patient is a 7 smoker or not a smoker, right? 8 MS. JENNY: Objection. 9 A. Whether the patient is a 10 smoker or not? 11 Q. Yes. In other words -- that 12 was a poor question. So let me just 13 withdraw it. 14 If a radiologist thinks it's 15 important enough to communicate a 16 finding could be cancer, and cancer is 17 third on the differential, then clearly 18 it's got to be important enough to 19 communicate if cancer is second on the 20 differential because the patient's a 21 smoker, right? 22 MS. JENNY: Objection. 23 A. It would depend on how 24 likely cancer would be as a cause of 25 that particular finding. If the 106 1 radiologist would feel that it was not 2 likely, I don't think that it needs to 3 be included in the report or phoned to 4 the referring physician. 5 Q. And in those circumstances it 6 wouldn't be important to communicate? 7 A. That is correct. 8 Q. So on the other hand -- 9 A. If cancer is unlikely, I 10 don't think it's important to 11 communicate that as a possibility. 12 Q. So if it's important to 13 communicate, it's because it's likely? 14 MS. JENNY: Objection. 15 A. I don't understand the 16 question. 17 Q. Okay. Here's all I'm 18 getting at: If a radiologist thinks 19 it's important enough to communicate a 20 finding could be cancer on a patient in 21 whom she thinks cancer's third most 22 likely, certainly as a matter of logic 23 she would think it's important to 24 communicate if it were second most 25 likely. In other words, if she could 107 1 eliminate number two and move lung 2 cancer up, it would still be important 3 to communicate? 4 MS. JENNY: Objection. 1 plus 1 5 doesn't equal 3, Brian. 6 Q. But it certainly equals 2, 7 doesn't it, Doctor? 8 MS. JENNY: Objection. 9 A. I think I've answered that 10 question already. My feeling is that 11 whether or not a radiologist needs to 12 include the word cancer in either a 13 report or to pick up the phone and call 14 the referring physician depends entirely 15 on how likely cancer is as a cause of 16 that finding. If it's unlikely in that 17 particular patient, I don't believe that 18 it needs to be included in the report 19 or any direct communication needs to be 20 done. 21 I could envision any of a number 22 of circumstances where cancer is in the 23 differential but very low based on the 24 finding or based on the patient or 25 whatever, where that would not need to 108 1 be in the differential. 2 Q. And under those 3 circumstances, it would not be important 4 to communicate, that's what you're 5 saying, right? 6 A. Correct. 7 Q. Again, as you've already 8 testified, if the radiologist thinks 9 it's important to communicate it could 10 be cancer, she should do so in the 11 report and by direct communication, 12 right? 13 MS. JENNY: Objection. 14 A. Correct. 15 Q. And then when an internal 16 medicine physician or family practice 17 doctor gets a chest report, a report of 18 a chest film with an abnormal finding 19 and a recommendation to compare with 20 prior films, whose responsibility is it, 21 if anyone's, to go ahead and try to 22 obtain prior films? 23 MR. HUPP: Let me object. This 24 is clearly beyond the scope of this 25 witness' report and any testimony on 109 1 this issue would violate the local rule 2 and open up him to any other issues 3 that he had not indicated in his report. 4 MR. RIEMENSCHNEIDER: Same 5 objection. 6 Q. Can you answer that? 7 A. In my practice, I can't 8 recall a circumstance where I personally 9 had to obtain the old films. 10 Q. Is it -- is that because 11 typically in your experience the 12 radiologist obtains the prior films? 13 MS. JENNY: Objection. 14 A. Either the radiologist or the 15 patient would obtain the prior films in 16 my experience. 17 Q. Do you send patients to 18 Bedford Medical Center for x-rays? 19 A. Patients of mine have had 20 x-rays done there. I don't send them 21 there specifically, but some of my 22 patients live in that area and have had 23 x-rays at that facility. 24 Q. Do you know whether at that 25 facility radiologists typically send out 110 1 for prior x-rays on their own? 2 A. I don't know. 3 MS. JENNY: Objection. 4 Q. I don't think I asked you 5 whether you know any of the other expert 6 witnesses in this case. 7 A. The only other expert witness 8 in this case I know is Dr. Levitan. 9 Q. How do you know Dr. Levitan? 10 A. He is a hematologist and 11 oncologist in the University Hospital 12 System, and he has consulted on some of 13 my patients. 14 Q. So you have a patient who 15 has cancer, you may send them to Dr. 16 Levitan? 17 A. Correct. 18 Q. Do you ever talk to him 19 about this litigation or the care and 20 treatment of Sherry Morse? 21 A. I have not. 22 Q. Have you read his report? 23 A. No. 24 Q. Shall I tell him you said 25 hello when I see him tomorrow? 111 1 A. Yes. 2 Q. I'm not sure even if you're 3 aware of who all the other experts are 4 in this case. First of all, how did 5 you know Dr. Levitan was an expert in 6 this case? 7 A. There was a discussion 8 earlier that his deposition would be 9 taken tomorrow morning. 10 Q. So it's just since you 11 walked in this room here today that you 12 knew he was an expert in this case? 13 A. I was made aware of that 14 earlier by Mr. Riemenschneider. 15 Q. Did Mr. Riemenschneider share 16 with you the substance of Dr. Levitan's 17 opinions? 18 MR. RIEMENSCHNEIDER: Objection. 19 A. Not the specifics, no. 20 Q. There's a guy named Carl 21 Culley, internist with The Cleveland 22 Clinic Foundation, do you know him? 23 A. I do not. 24 Q. Michael Yaffe, internist from 25 Columbus, do you know him? 112 1 A. Don't know him. 2 Q. Okay. Do you think that a 3 patient, a smoker in particular, before 4 you give that smoker the label of a 5 patient with chronic bronchitis, you 6 need to order a chest x-ray to rule out 7 any parenchymal lung lesion? 8 MR. RIEMENSCHNEIDER: Just note 9 an objection. 10 A. I believe that a physician 11 who sees a patient for the first time, 12 if that patient has a history of chronic 13 bronchitis, it is not necessary for that 14 physician to order a chest x-ray because 15 of that history. 16 Q. Okay. Well, let me ask a 17 hypothetical. Patient comes to you the 18 first time and for whatever reason is a 19 poor historian, can't relate much at all 20 about her prior medical history. You're 21 thinking of diagnosing her with chronic 22 bronchitis, you would never do that 23 without first getting a chest x-ray, 24 would you? 25 MR. RIEMENSCHNEIDER: Objection. 113 1 A. If the patient was able to 2 tell me that she had been diagnosed with 3 chronic bronchitis, I wouldn't get a 4 chest x-ray because of that diagnosis. 5 Q. Before -- okay. Before you 6 label a patient with chronic bronchitis, 7 you typically order a chest x-ray, don't 8 you? 9 MR. RIEMENSCHNEIDER: Objection. 10 Irrelevant. Asked and answered. 11 A. Yes. 12 Q. And the reason you do that 13 is chronic bronchitis really is a 14 diagnosis of exclusion, and among the 15 things you must exclude would be a 16 parenchymal lung lesion, right? 17 A. I think the diagnosis of 18 chronic bronchitis would be suspected 19 based on the patient's history and 20 examination. And based on the history 21 and examination, it wouldn't necessary 22 -- it wouldn't be necessary to get a 23 chest x-ray based on that history. 24 Q. And why do you typically 25 order a chest x-ray before you label a 114 1 patient having chronic bronchitis? 2 MR. RIEMENSCHNEIDER: Objection. 3 A. In making that diagnosis for 4 the first time, a chest x-ray is often 5 part of that evaluation. 6 Q. Why? 7 A. I've seen patients who have 8 come to me with a history of chronic 9 bronchitis, for example similar to 10 Sherry Morse, a patient tells me they 11 have a history of chronic bronchitis, I 12 would not get a chest x-ray at that 13 point to confirm or rule out that 14 diagnosis. 15 Q. What I'm asking you is -- 16 you would -- I mean, you've told us you 17 wouldn't diagnose the patient with 18 chronic bronchitis until you've ordered 19 a chest x-ray. I thought you said 20 that. Did I miss -- let me rephrase 21 it, because I don't think I said that 22 right. 23 I thought I -- I understood if 24 someone comes to you and reports a 25 history of chronic bronchitis you 115 1 wouldn't necessarily get a chest x-ray, 2 right? 3 A. Right. 4 Q. And on the other hand if 5 they don't yet have a history of chronic 6 bronchitis and you're considering that 7 diagnosis yourself, you're not going to 8 reach the conclusion that the patient 9 has chronic bronchitis until you've 10 ordered a chest x-ray, is that correct? 11 A. True. 12 Q. And what I'm asking you is 13 why, why do you need a chest x-ray 14 before you make the diagnosis yourself? 15 A. To look for other causes of 16 cough. 17 Q. Including, for example, 18 bronchogenic carcinoma? 19 A. Whether or not the chest 20 x-ray's ordered for that particular 21 reason depends on the factors we 22 discussed earlier, such as age of the 23 patient, et cetera. 24 Q. Okay. Be that as it may, 25 you look -- before you diagnose a 116 1 patient with chronic bronchitis who 2 doesn't report to you a history of 3 chronic bronchitis, you order a chest 4 x-ray to look for other potential causes 5 of cough, correct? 6 A. Right. 7 Q. So that when a patient comes 8 to you and reports a history of chronic 9 bronchitis, do you have some duty to get 10 a little better history what the patient 11 means? 12 MR. RIEMENSCHNEIDER: Objection. 13 A. No. 14 Q. Do you have a duty at that 15 point to get the patient's prior medical 16 records to see how that diagnosis was 17 established, or do you simply assume the 18 diagnosis was properly made? 19 A. If the patient seems to be a 20 good historian and is able to report to 21 me that a diagnosis of chronic 22 bronchitis had been made, I would not 23 get the old records to confirm that, nor 24 would I order a chest x-ray. 25 Q. You'd just assume they came 117 1 to you with a proper diagnosis? 2 A. Correct. And, for example, 3 getting back to this case when Dr. Azem 4 first saw Mrs. Morse on January 16, 5 1998, I don't believe the standard or 6 care required either obtaining the old 7 records or getting a chest x-ray on that 8 date. 9 Q. And just so I'm clear, you 10 have a sentence in your report where you 11 say nothing which Dr. Azem did or failed 12 to do led to the death of Sherry Morse, 13 do you see that? 14 A. Right. 15 Q. I think what you mean to say 16 is that in your opinion he wasn't 17 negligent, therefore his negligence 18 didn't lead to the death of Sherry 19 Morse? 20 A. That would be another way of 21 stating what I state there. 22 Q. I just want to make sure 23 that you weren't intending to express in 24 that sentence anything about proximate 25 causation, whether or not Sherry would 118 1 have lived depending on when the cancer 2 was discovered? 3 A. Correct. 4 Q. Okay. If Sherry Morse had 5 told Dr. Azem on January 16, 1998 that 6 she had had a chest x-ray performed just 7 three or four months earlier, would Dr. 8 Azem have been required by the standard 9 of care to seek to obtain that x-ray? 10 MR. RIEMENSCHNEIDER: Objection. 11 A. No. 12 Q. Would it have been a good 13 idea to seek to obtain that x-ray? 14 MR. RIEMENSCHNEIDER: Objection. 15 A. Not necessarily, no. 16 Q. Do you think it would have 17 given Dr. Azem any helpful information 18 in the care and treatment of Sherry 19 Morse? 20 MR. RIEMENSCHNEIDER: Objection. 21 A. Based on her presentation 22 that day, I don't think that that would 23 be required. 24 Q. Okay. Well, what about at 25 any time throughout the duration of his 119 1 treatment of Sherry Morse, would it ever 2 have been required for him to look at 3 that chest x-ray if he knew it existed? 4 A. No. 5 Q. What if Sherry brought with 6 her the report of the x-ray, would Dr. 7 Azem be required to look at it? 8 MR. RIEMENSCHNEIDER: Objection. 9 A. To look at the report? 10 Q. Yes. 11 A. Yes. 12 Q. Why? 13 A. It's -- when a patient 14 brings medical information to us, it's 15 appropriate for us to read that 16 information. 17 Q. And obviously then if he 18 read that and felt that there was 19 anything on that he needed to follow up, 20 that would be his duty too at that 21 point, right? 22 MR. RIEMENSCHNEIDER: Objection. 23 A. In your hypothetical, if he 24 felt that that was appropriate, then he 25 should do that. 120 1 Q. Okay. 2 A. I would point out in this 3 case she did not bring the report, she 4 did not bring the x-ray -- 5 Q. And I'm not saying she did. 6 A. I understand. 7 Q. I'm just trying to test your 8 opinions and so I ask you some 9 hypothetical questions. 10 A. I understand. 11 Q. I'm not going to represent 12 that she did either of those things. 13 A. I understand. 14 Q. In terms of whose duty it is 15 to go back and compare a chest x-ray 16 with prior films, is it fair to say the 17 standard of care is that the radiologist 18 and the internist be on the same page 19 in that regard? 20 MR. RIEMENSCHNEIDER: Objection. 21 MR. HUPP: Objection. 22 MS. JENNY: Objection. 23 MS. HENRY: Objection. 24 A. If comparison with old films 25 is felt to be necessary, then they 121 1 should have an understanding of whose 2 responsibility it is. 3 Q. And they should both have 4 the same understanding, otherwise the 5 patient could get hurt, right? 6 MR. RIEMENSCHNEIDER: Objection. 7 MR. HUPP: Objection. 8 MS. JENNY: Objection. 9 MS. HENRY: Objection. 10 A. Correct. 11 Q. Whose responsibility is it, 12 is it the radiologist's responsibility 13 or the internist's responsibility, or 14 both to figure out that they're both on 15 the same page with respect to who's 16 going to get the prior films? 17 MS. JENNY: Objection. 18 MS. HENRY: Objection. 19 MR. HUPP: Objection. 20 MR. RIEMENSCHNEIDER: Objection. 21 A. I believe in that situation 22 when there is some uncertainty there 23 should be some communication as to whose 24 responsibility it may be. 25 Q. The standard of care is to 122 1 have some communication between the 2 radiologist and the internist on that 3 issue? 4 MR. HUPP: Objection. 5 MS. JENNY: Objection. 6 MS. HENRY: Objection. 7 MR. RIEMENSCHNEIDER: Objection. 8 A. Either that or for one or 9 the other to obtain the films, if that 10 is felt to be necessary. 11 Q. I'm not sure I really 12 follow. I'm just trying to figure out, 13 the standard is they're both on the same 14 page as to who's going to do it. Does 15 one or the other of them have 16 responsibility to make sure they're both 17 on the same page, or do they both have 18 that responsibility? 19 MS. JENNY: Objection. 20 MR. HUPP: Objection. 21 MS. HENRY: Objection. 22 A. I would state, as I did 23 before, that there should be 24 communication between the two as to how 25 the old films would be obtained, if it 123 1 was found necessary to do so. 2 Q. You can't say whether it's 3 the onus, for lack of a better word, is 4 on the referring physician to make sure 5 that he and his consultant are on the 6 same page or whether that duty instead 7 is on the radiologist to make sure that 8 she and the referring physician are on 9 the same page? 10 A. Correct. 11 MR. RIEMENSCHNEIDER: Objection. 12 MS. JENNY: Objection. 13 MS. HENRY: Objection. 14 Q. It's somebody's, but you 15 can't really say whose responsible? 16 MR. HUPP: Objection. 17 MS. JENNY: Objection. 18 MS. HENRY: Objection. 19 MR. HUPP: Move to strike. 20 Q. Are you a smoker? 21 A. No. 22 Q. Have you ever been? 23 A. No. 24 Q. Is there any medical article 25 or literature or textbook or anything 124 1 else in writing you're going to come to 2 trial and say you relied upon in 3 formulating any of your opinions? 4 A. No. 5 Q. Is there anything in writing 6 that you're going to say is 7 authoritative with respect to any issues 8 in this case? 9 A. No. 10 Q. Are you going to cite us to 11 any literature, to the jury, any 12 literature or any studies or textbooks? 13 A. No. 14 Q. Have you ever been sued for 15 malpractice? 16 A. Yes. 17 Q. On how many occasions? 18 A. Twice. 19 Q. When -- when were each of 20 those cases final or disposed of, 21 whichever is easier for you? 22 A. The first case was sometime 23 in the early 90s, the second in the 24 late 90s. Both with dismissed without 25 any payment being made on my behalf. 125 1 Q. Did either of those cases 2 have anything to do with diagnosis of 3 bronchitis, pneumonia or lung cancer? 4 A. No. 5 Q. Is there any reason you 6 can't testify live at trial next week or 7 the week after? 8 A. No. 9 MR. EISEN: Okay. I don't have 10 any other questions for you. Thank you 11 for your time. 12 THE WITNESS: Okay. Thank you. 13 MR. EISEN: Some of the other 14 folks may. 15 MR. RIEMENSCHNEIDER: Anybody? 16 MS. HENRY: Well, let me just 17 ask. 18 EXAMINATION OF RAYMOND W. ROZMAN, M.D. 19 BY-MS.HENRY: 20 Q. You don't intend to give any 21 opinions as to whether or not Dr. Jaeger 22 complied with the standard of care at 23 the time of trial, right? 24 A. No. 25 Q. That is correct, that is 126 1 correct? 2 A. I do not intend to testify 3 to that. 4 MS. HENRY: Okay. 5 MS. JENNY: I just have a few 6 questions, Doctor. 7 EXAMINATION OF RAYMOND W. ROZMAN, M.D. 8 BY-MR.JENNY: 9 Q. Would you agree with me that 10 it's not unusual in a patient who has a 11 chest film where the report comes back 12 as fairly reassuring, where then you 13 have a repeat film that leads to the 14 diagnosis of cancer? 15 MS. HENRY: Objection. 16 MR. EISEN: Objection. 17 A. That is a common occurrence. 18 Q. Doctor, can you agree with 19 me that you can not diagnose lung cancer 20 based on one chest film alone? 21 A. Well, there certainly are 22 chest films that are very suggestive of 23 lung cancer. The diagnosis is typically 24 confirmed by some studies such as a 25 biopsy. 127 1 Q. Based on the information that 2 you have, is there any reason for you 3 to believe that the diagnosis of cancer 4 in this case could have or should have 5 been made by the chest x-ray that was 6 taken in September of 1997? 7 MS. HENRY: Objection. 8 MR. RIEMENSCHNEIDER: Objection. 9 A. I don't have an opinion on 10 that. 11 Q. Doctor, do you have any 12 opinions as to whether or not Dr. Yohann 13 complied with the standard of care? 14 A. I don't think it's 15 appropriate for me as a primary care 16 physician to comment on the standard of 17 care for a radiologist. 18 Q. So in terms of what the 19 standard of care would have been for Dr. 20 Yohann back in 1997, that would be 21 outside your area of expertise? 22 A. That is correct. 23 Q. Doctor, when you get a chest 24 -- a report on a chest film back that 25 indicates that the radiologist feels 128 1 that comparison with prior films is 2 necessary, is that something that you as 3 a clinician feels then needs to be done? 4 MR. HUPP: Objection. 5 MS. HENRY: Objection. 6 A. If it's recommended, yes. 7 Q. And if comparison with prior 8 films is recommended, does that indicate 9 to you that at the time the radiologist 10 interpreted the film, he or she did not 11 have prior films in which to look at? 12 MS. HENRY: Objection. 13 A. Yes. 14 Q. And as a clinician, what 15 then would you do getting a report back 16 indicating that comparison with prior 17 films is recommended? 18 A. If I would receive that 19 report back, I would communicate with 20 the radiologist to find out who would 21 obtain those films. 22 Q. In this case, is it your 23 understanding based on reading Dr. 24 Jaeger's testimony that he -- he was 25 going to obtain the prior films? 129 1 A. I believe it was Dr. 2 Jaeger's testimony that he expected the 3 radiology department to obtain those 4 films. 5 Q. And you haven't had an 6 opportunity to look at Dr. Jaeger's 7 office chart, have you, Doctor? 8 A. I do have type written 9 transcription of that chart. 10 Q. And at the October of 1997 11 visit, is there some indication that Dr. 12 Jaeger was instructing the patient to 13 obtain some prior films? 14 A. There's no indication in that 15 note. There is a number 4 in that 16 note, out for old tests, EMG and x-rays. 17 Q. Does that indicate to you 18 that Dr. Jaeger was taking some action 19 in order to obtain those studies? 20 MR. EISEN: Objection. 21 A. I believe from reading his 22 deposition, I was unclear as to whether 23 he was referring in that statement for 24 the chest x-ray or any other old x-rays. 25 MS. JENNY: Doctor, I don't think 130 1 I have any other questions. Thank you. 2 MR. HUPP: Want to make an 3 objection? I just got two. 4 MR. EISEN: Go ahead. 5 EXAMINATION OF RAYMOND W. ROZMAN, M.D. 6 BY-MR.HUPP: 7 Q. Doctor, my name is Steve 8 Hupp. I represent UPCP, Dr. Jaeger's 9 employer in this case. Does smoking 10 cause other health conditions aside from 11 lung cancer? 12 MR. EISEN: Objection. 13 A. Yes, it does. 14 Q. What conditions? 15 A. There are many conditions 16 that are caused or contributed to by 17 cigarette smoking, including coronary 18 artery disease, stroke, other cancers, 19 emphysema. 20 Q. Is smoking one of the 21 leading causes of coronary artery 22 disease? 23 MR. EISEN: Objection. 24 A. Yes, it is. 25 Q. Would a patient with a 50 131 1 pack a year history be at substantial 2 risk for developing coronary artery 3 disease? 4 MR. EISEN: Objection. 5 A. Yes. 6 Q. Do patients who develop 7 coronary artery disease leave as long as 8 patients who do not develop coronary 9 artery disease? 10 MR. EISEN: Objection. 11 A. No, they do not. 12 MR. HUPP: That's it. 13 EXAMINATION OF RAYMOND W. ROZMAN, M.D. 14 BY-MR.EISEN: 15 Q. You mentioned in response to 16 a question asked to you by Ms. Jenny, 17 that you couldn't opine about the 18 standard of care for Dr. Yohann, do you 19 remember that? 20 A. Yes. 21 Q. There are, though, certain 22 things that all doctors have the same 23 standard of care regardless of 24 specialty, am I right? 25 MS. JENNY: Objection. 132 1 A. I would say the standard of 2 care for a radiologist is different from 3 a standard of care of a primary care 4 doctor. 5 Q. Well, it depends on what 6 we're talking about, doesn't it? 7 MS. JENNY: Objection. 8 Q. For example, there are 9 certain things that no doctor should 10 fail to do regardless of the specialty. 11 For example, a patient calls the doctor 12 up and complains of severe chest pain. 13 It doesn't matter if you're a 14 radiologist or an internist, you don't 15 hang up the phone, am I right? 16 MR. RIEMENSCHNEIDER: Objection. 17 A. In that hypothetical 18 situation I would agree that a physician 19 should give that advice to have that 20 particular complaint evaluated. What I 21 stated, though, was as a primary care 22 physician, I don't think it's 23 appropriate for me to comment on the 24 standard of care for a radiologist. 25 Q. As least as it regards 133 1 radiological matters. But there are 2 certain things that all doctors share in 3 the same standard of care, aren't there? 4 MS. JENNY: Objection. 5 A. Well, for the one 6 hypothetical that you described, I would 7 say that particular one, both those 8 physicians should give that advice. 9 Q. For example, you say -- I 10 think you told us before, the standard 11 of care was that somebody, either the 12 radiologist or the referring physician, 13 be it a family practice doctor or an 14 internists, needs to be on the same page 15 about who would get the prior films. 16 That's true, you can say that even 17 though you're not a radiologist, can't 18 you? 19 MS. JENNY: Objection. 20 A. Correct. 21 Q. I mean, that's just the 22 simple issue of should two doctors 23 communicate, right? 24 A. Correct. 25 Q. Okay. And when you stay 134 1 that if a radiologist thinks something's 2 important to communicate, she should 3 either right it down or call somebody. 4 You can say that even though you're not 5 a radiologist, right? 6 A. Correct. 7 MS. JENNY: Objection. 8 Q. That's especially true 9 because you're the guy who's the 10 recipient of the communication, right? 11 MS. JENNY: Objection. 12 A. Correct. 13 MR. EISEN: Okay. I don't have 14 anything else for you. Thank you. 15 - - - - - 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 135 1 CEFARATTI GROUP FILE NO. 5906 2 CASE CAPTION: RICHARD P. MORSE, ET AL 3 VS. HAITHAM AZEM, M.D., ET AL 4 DEPONENT: RAYMOND ROZMAN, M.D. 5 DEPOSITION DATE: MARCH 14, 2003 6 7 (SIGN HERE) 8 The State of Ohio, ) 9 County of Cuyahoga ) SS: 10 Before me, a Notary Public in and 11 for said County and State, personally 12 appeared RAYMOND ROZMAN,M.D., who 13 acknowledged that he/she did read 14 his/her transcript in the above- 15 captioned matter, listed any necessary 16 corrections on the accompanying errata 17 sheet, and did sign the foregoing sworn 18 statement and that the same is his/her 19 free act and deed. 20 IN TESTIMONY WHEREOF, I have 21 hereunto affixed my name and official 22 seal at , this 23 day of , A.D. 2003. 24 25 Notary Public Commission Expires 136 1 . ERRATA SHEET 2 PAGE LINE CORRECTION 3 . 4 . 5 . 6 . 7 . 8 . 9 . 10 . 11 . 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 137 1 CERTIFICATE 2 . 3 State of Ohio ) SS.: 4 County of Cuyahoga. ) 5 I, Michelle M. Lewis, a Notary 6 Public within and for the State of Ohio, 7 duly commissioned and qualified, do 8 hereby certify that the within named 9 witness, was duly sworn to testify the 10 truth, the whole truth and nothing but 11 the truth in the cause aforesaid; that 12 the testimony then given by the witness 13 was by me reduced to stenotypy in the 14 presence of said witness; afterwards 15 transcribed, and that the foregoing is a 16 true and correct transcription of the 17 testimony so given by the witness. 18 I do further certify that this 19 deposition was taken at the time and 20 place in the foregoing caption 21 specified. 22 I do further certify that I am 23 not a relative, counsel or attorney for 24 either party, or otherwise interested in 25 the event of this action. 138 1 I am not, nor is the court 2 reporting firm with which I am 3 affiliated, under a contract as defined 4 in Civil Rule 28 (D). 5 IN WITNESS WHEREOF, I have 6 hereunto set my hand this day of 7 , 2003. 8 . 9 . 10 . 11 . 12 13 Michelle M. Lewis, Notary Public 14 within and for the State of Ohio 15 . 16 . 17 . 18 . 19 My commission expires January 9, 2004. 20 . 21 . 22 . 23 . 24 . 25 .