0001 1 The State of Ohio, ) ) SS: 2 County of Cuyahoga. ) 3 IN THE COURT OF COMMON PLEAS 4 Matthew Chase Wagoner, etc., et al, 5 Plaintiffs, 6 vs. Case No. CV497179 7 Mark R. Evans, M.D., et al, 8 Defendants. 9 * * * 10 11 12 Transcript of the telephonic deposition of 13 KALIP SAXENA, M.D., called as a witness by the 14 Plaintiffs, taken before Kathleen A. Hopkins, a Notary 15 Public within and for the State of Ohio, at the 16 Offices of Becker & Mishkind Co., LPA, 134 Middle 17 Avenue, Elyria, Ohio, on Friday, the 19th day of 18 March, 2004, at 2:10 p.m., pursuant to agreement of 19 counsel. 20 21 * * * 22 23 24 25 0002 1 APPEARANCES: 2 On behalf of the Plaintiffs: 3 Michael F. Becker Becker & Mishkind Co, LPA 4 134 Middle Avenue Elyria, Ohio 44035 5 On behalf of Defendant Dr. Evans: 6 Michael D. Shroge (by telephonic means) 7 Reminger & Reminger Co., LPA 1400 Midland Building 8 101 Prospect Avenue W. Cleveland, Ohio 44115-1093 9 On behalf of Defendant Fairview Hospital: 10 John T. Bulloch (by telephonic means) 11 Moscarino & Treu 1422 Euclid 12 Suite 630 Cleveland, Ohio 44115-1975 13 On behalf of Defendant Parma Hospital: 14 Victor T. DiMarco (by telephonic means) 15 Weston Hurd LLP The Tower at Erieview 16 1301 East 9th Street Suite 1900 17 Cleveland, Ohio 44114-1862 18 * * * 19 20 21 22 23 24 25 0003 1 KALIP SAXENA, M.D., 2 of lawful age, called as a witness by the 3 Plaintiffs, being first duly sworn as 4 hereinafter certified, was examined and 5 testified as follows: 6 CROSS-EXAMINATION OF KALIP SAXENA, MD 7 BY MR. BECKER: 8 Q. Doctor, good afternoon. 9 A. Good afternoon. 10 MR. BECKER; All right. Is it possible, 11 John, that we can move the doctor a little bit closer 12 to the speaker? 13 A. Is that better? 14 Q. That's better. 15 Doctor, tell me your full name and spell your 16 last name for me. 17 A. Full name Kapil Saxena, K-A-P-I-L and 18 S-A-X-E-N-A. 19 Q. And what is your current business address? 20 A. It's Children's Hospital, 700 Childrens Drive, 21 a Division of HEM/ONC, Columbus, Ohio 43205. 22 Q. And what is your home address? 23 A. 381 Mae Street, M-A-E, Street, Logan, Ohio, 24 L-O-G-A-N, 43138. 25 Q. Who is your current employer? 0004 1 A. Childrens Hospital. 2 Q. And what is your position there today? 3 A. I'm doing a fellowship, that's like the sixth 4 year of residency in pediatric HEM/ONC. 5 Q. Where did you go to medical school? 6 A. In India. 7 Q. What year did you graduate from medical school? 8 A. '89, 1989. 9 Q. And did you then do an internship or residency 10 in India? 11 A. Did like, we have a rotating internship after 12 the medical school, which I did in India. 13 Q. And thereafter did you come to the 14 United States for additional training? 15 A. Yes. 16 Q. And where did you come to? 17 A. I was in Minnesota. 18 Q. And so you arrived in Minnesota about 1990 or 19 '91? 20 A. It was more like '92. 21 Q. '92. 22 And was that a residency in pediatrics? 23 A. I was actually doing a Master's in pharmacology 24 and toxicology. 25 Q. Okay. And what institution? 0005 1 A. It's the University of Minnesota at the Duluth 2 campus. 3 Q. Did you obtain your Master's? 4 A. Yes. 5 Q. Thereafter did you engage in any additional 6 training? 7 A. I did my residency in pediatrics in Cleveland. 8 Q. Where in Cleveland? 9 A. MetroHealth Medical Center of Case Western. 10 Q. What year did you start that residency? 11 A. '94. 12 Q. And when did you finish that residency? 13 A. '97. 14 Q. And when you finished that residency did you 15 then have employment? 16 A. Yes. 17 Q. And was that with Fairview General Hospital? 18 A. Yes. 19 Q. And as I understand it, you started out as a 20 pediatric house officer at Fairview? 21 A. Yes. 22 Q. And that would have been in nineteen ninety 23 five or six or seven? 24 A. Seven. 25 Q. And this child received care at Fairview in 0006 1 August of '99? 2 A. Yes. 3 Q. What was your position in Fairview in 4 August of 1999? 5 A. The same, I was a pediatric house officer. 6 Q. What would have been your duties and 7 responsibilities? 8 A. You mean in general or words like in the NICU? 9 MR. BULLOCH: I think he means in 10 general. 11 Q. In general, and then I'll ask you about the 12 NICU. 13 A. Okay. In general our responsibility as a house 14 officer would be the care of the pediatric patients on 15 the pediatric floor and also in the pediatric clinic. 16 And to, and related to the NICU, there would be 17 to serve as a back-up if the neonatologist or 18 Dr. Li Lian or Dr. Achanti was not in the house, they 19 would call us for some emergencies and sort of like an 20 extra pair of hands if the neonatologist was not 21 around. 22 Q. In August of 1999, or at least, would you have 23 ever been on your own, for example, administering 24 Surfactants to a newborn? 25 A. No, I would never do that. 0007 1 Q. That would only be done under the guidance or 2 the orders of Dr. Li Lian? 3 A. No, actually that would be done by Dr. Li Lian 4 himself. 5 Q. Okay. I'm assuming, Doctor, that you have no 6 specific recollection of this child? 7 A. No. 8 Q. And I say this child, I mean the Wagoner child. 9 A. No, I don't. 10 Q. Have you ever had your deposition taken before? 11 A. No. 12 Q. All right. This is a question and answer 13 session under oath. It's important that you 14 understand the question that I ask. If you don't 15 understand the question or if the question is 16 inartfully phrased, I want you to stop me and tell me 17 so, and I'd be happy to attempt to rephrase or restate 18 the question, fair enough? 19 A. Yeah. 20 Q. However, unless you indicate otherwise to me, 21 I'm going to assume that you have fully understood the 22 question that's been posed and you're giving me your 23 best and most complete answer today, fair enough? 24 MR. BULLOCH: Well, I'll just state, 25 Mike, you can assume that, but of course he'll get a 0008 1 chance to view his deposition transcript and change 2 anything on the errata sheet as appropriate. 3 Q. Doctor, what have you reviewed in preparation 4 for today's deposition? 5 A. I looked at the note, the procedure note that I 6 wrote, and what was related to my involvement in the 7 child's care. 8 Q. In general terms then, what would have been 9 your involvement with this child? 10 A. Generally what happens with this patient and 11 with any similar patient is if, if the neonatologist 12 would be in-house, we would actually have no 13 involvement, but we are called only if the 14 neonatologist is out of the hospital. And all of them 15 say such and such is going on, we have a patient who 16 needs to be intubated or needs a chest tube and they 17 would ask us to come down and do that. And that 18 decision would be the neonatologist or Dr. Li Lian. 19 Q. I'm not following you. When you say they would 20 call you, you're referring to the nurses or 21 Dr. Li Lian? 22 A. Either one of them. 23 Q. Can you tell by looking at this chart whether 24 you were called by the nurses or by Dr. Li Lian? 25 A. I can't make out on this one. 0009 1 Q. So you're saying it could be either one? 2 A. Yeah, it could be either one to call me, yes. 3 Q. And how many entries are there in this Wagoner 4 chart by you, Doctor? 5 MR. BULLOCH: Excuse me, Mike, are your 6 referring to the progress notes or are you referring 7 to any entries? 8 Q. Any entries. Let's start with progress notes. 9 How many entries are there in the progress 10 notes by you? 11 A. I see only one. 12 Q. Okay. Let's go over that progress note entry. 13 A. Okay. 14 Q. And I want you to read it to me. And I want 15 you to read it in a verbatim fashion, and if there are 16 any abbreviations, I want you to explain the 17 abbreviation, fair enough? 18 A. Okay. 19 Q. Go ahead. 20 A All right. It's dated August 24, '99, 21 9:15 p.m., Pediatrics: 35 week infant transferred 22 from Parma Hospital, weight 2,337 grams. Respiratory 23 exam, on FiO2 66 percent. Respiration rate 60 to 80, 24 pulse 144. Grunting, moderate retractions, air entry 25 fair. Blood gas, 7.34, PcO2 39, CO2 91. Trying to 0010 1 intubate with size 3.0 ET tube, contact 9.4 2 centimeters. Patient intubated after one milligram of 3 Valium given. 4 Q. Let me stop you there, Doctor. Was it your 5 decision or someone else's decision that this child 6 needed intubation? 7 A. Dr. Li Lian's decision. I would not make this 8 decision myself. 9 Q. How do you know it was Dr. Li Lian's decision? 10 A. Because, like I said, I would not make any 11 decision on any patient in the NICU to intubate or 12 extubate or put a chest tube, it would be very 13 strictly under the guidance of the neonatologist. And 14 in this case, I think I was called there just to 15 intubate. That would be Dr. Li Lian. 16 Q. So it's likely in this circumstance that 17 Dr. Li Lian make the decision based on what nurses had 18 told him, that the child needed to be intubated and 19 you were the physician that was going to accomplish 20 that, correct? 21 A. Yeah. 22 Q. All right. Let's continue. 23 You say patient intubated after one milligram 24 of Valium given? 25 A. Yeah. 0011 1 Q. Okay. The vent settings? 2 A. The vents, what you said was right, but the 3 number, it has to be about based, when I signed, when 4 I -- overall in any case, myself and the nurses would 5 be in constant communication with Dr. Li Lian and 6 would give him like minute to minute reports. And 7 based on my conversations with Dr. Li Lian and all the 8 results of the blood gasses and how the patient 9 looked, will lead them, the decision will be made by 10 him. 11 Q. The decision on the vent setting, is that what 12 you mean? 13 A. No, the decision about intubation. And of 14 course, yes, the vent settings are also based on his 15 guidelines. 16 Q. Okay. And do you recall whether or not 17 Dr. Li Lian had any guidelines, written guidelines, at 18 Fairview in 1999 for vent settings? 19 A. Doctor, the guidelines were by Dr. Li Lian, 20 because that's what he, that's what him and 21 Dr. Achanti, the neonatologists preferred as all their 22 patients being started on the initial vent setting. 23 Q. But I guess I made that -- that was a poor 24 question. Start over. 25 Were there any written guidelines, policies 0012 1 procedures as to vent guidelines, if you remember? 2 A. I don't remember written guidelines about 3 ventilator settings. 4 Q. Do you recall ever seeing any written 5 guidelines for administration of Surfactants at 6 Fairview General Hospital? 7 A. No, I don't recall. 8 Q. How long did you remain at Fairview as a 9 pediatric house officer past 1999? 10 A. I was there until 2000. 11 Q. All right. And then when did you leave; in 12 June of 2000? 13 A. Yeah. What's that? 14 Q. You left in June of 2000? 15 A. Yeah. 16 Q. All right. Did we finish your note? 17 A. No. 18 After the vent setting it says, Plan: To 19 decrease FiO2 as tolerated. Continue oxygen as 20 ordered and IV fluids, chest x-ray and repeat blood 21 gas, and signed my name. 22 Q. Okay. Plan is to decrease Fi02. What does 23 that mean? 24 A. On the ventilator settings, as the blood gasses 25 results come the oxygen would be cut down as the 0013 1 patient was, you know, depending on how the patient 2 was doing. 3 Q. And what was the purpose of the chest x-ray, to 4 confirm the tube placement? 5 A. Yeah. 6 Q. And it says repeat blood gasses? 7 A. Yeah. 8 Q. And when were you going to repeat blood gasses? 9 A. I wrote in my orders to repeat blood gas in one 10 hour. 11 Q. What is your perception as to why this child 12 was intubated at this time? 13 A. It, I can only guess, but it's my, it's that 14 decision that Dr. Li Lian would make would be because 15 of the respiratory distress syndrome and the 16 prematurity. The fact that the oxygen requirement, 17 the Fi02 was substantially above 60 percent. 18 Q. Okay. 19 A. Ultimately that would be it. 20 Q. So it's your perception that because the oxygen 21 requirements of this child were greater than 60 22 percent, the child needed intubation? 23 A. It would be a combination of everything, the 24 increased oxygen requirement, the RDS, the 25 prematurity, the tachypnea in the child and how 0014 1 clinically the child looked. 2 Q. Can you discern whether or not the child's 3 tachypnea was related to the RDS or was it simply in 4 response to additional need for oxygenation? 5 A. Oh, that's very difficult to say. That's all 6 interrelated. If you distress, you are needing more 7 oxygen. 8 Q. Did you actually examine this child prior to 9 intubating? 10 A. I was there at the time of intubation, that's 11 when I was called. 12 Q. I didn't hear that, Doctor, you were what? 13 A. I was called at the time the decision to 14 intubate was made, so I was there only when I 15 intubated the child. 16 Q. Okay. So you did not examine the child, you 17 simply proceeded with the intubation? 18 A. Yes. I mean, I saw the child before I 19 intubated, right at that time. 20 Q. Okay. Was there an order, any orders by you? 21 A. I just wrote down what I was supposed to write, 22 the same thing, that ventilator settings like we are 23 supposed to write, the doctor's orders for the 24 respiratory therapist, I wrote down. 25 Q. Okay. I want you to read your orders then, 0015 1 Doctor. 2 A. Fi02 a hundred percent. Pressure 20 over 40. 3 MR. BULLOCH: Why don't you give him 4 the dates and time of the orders for the record. 5 A. Yeah, it's 8-24-99 at 9:15 p.m. Fi02 of 6 hundred percent pressure at 20 over 40, respiratory 7 rate of 60. Decrease Fi02 as tolerated. Chest x-ray 8 stat and repeat blood gas in one hour. And I signed 9 my name. 10 Q. Is that the only order you gave for this child? 11 A. Yeah. I don't remember seeing any other 12 orders. 13 Q. When the, after a child is intubated and before 14 one begins to drop the oxygenation of the intubation, 15 what kind of things are you looking for? 16 A. It would be a decision for the neonatologist to 17 make, in this case Dr. Li Lian, to make decisions 18 about dropping the settings or making any changes on 19 the ventilator. We are not called in that. 20 Q. That would be not be within your powers? 21 A. No. 22 Q. That would be his call? 23 A. Right. 24 Q. And I think, did I ask you already whether you 25 have any recollection of this child and you said no? 0016 1 A. No, I don't. 2 Q. So have we covered all your entries in this 3 chart? 4 A. I think so, yeah. I don't -- 5 Q. Well, take a moment, Doctor, and look at the 6 chart just to be sure. I want to make sure we've 7 covered all your entries. 8 MR. BULLOCH: Take your time. 9 A. I don't see anything in the progress notes or 10 orders. 11 MR. BULLOCH: Nothing else authored by 12 you? 13 A. I don't see any other entries by me. 14 Q. Residency program at Metro, did you say three 15 years or four years? 16 A. Three years. 17 Q. When you were working as a house officer or 18 pediatric house officer, what kind of shifts would you 19 be working? 20 A. It used to vary every day. And sometimes it 21 would be like only a daytime shift. And some, every 22 fourth day or so, it would be like a 24 hour call. 23 Q. Would it have been your practice to, for 24 example, in this case after you intubated, to pick up 25 the phone and call Dr. Li Lian and tell him what 0017 1 happened? 2 A. Oh, it would be like all the time. It would be 3 like minute to minute conversations with him. Most of 4 the time he would actually be on the phone all the 5 time and he would get relayed everything what was 6 going on. 7 Q. And what was the name of other neonatologist at 8 this time? 9 A. Dr. Achanti. 10 Q. Now, how would, do you recall how Dr. Achanti 11 and Dr. Li Lian would split their time or would they 12 both be on at the same time or would they vary between 13 each other? 14 A. No, I really didn't know much, even then, so I 15 don't know. 16 MR. BECKER: Okay. Doctor, that's all 17 the questions I have for you. 18 THE WITNESS: Okay. 19 MR. BECKER: Anybody else have any 20 questions. 21 MR. DiMARCO: No, Mike. 22 MR. SHROGE: No. 23 MR. BULLOCH: We'll waive reading this. 24 25 0018 1 C E R T I F I C A T E 2 The State of Ohio, ) ) SS: 3 County of Lorain. ) 4 I, Kathleen A. Hopkins, a Notary Public within and for the State of Ohio, duly commissioned and 5 qualified, do hereby certify that the within-named witness, KALIP SAXENA, M.D., was by me first duly 6 sworn to testify the truth, the whole truth and nothing but the truth in the cause aforesaid; that 7 the testimony then given by him was reduced by me to stenotype in the presence of said witness, 8 subsequently transcribed into typewriting under my direction, and that the foregoing is a true and 9 correct transcript of the testimony so given by him as aforesaid. 10 I do further certify that this deposition was 11 taken at the time and place as specified in the foregoing caption, and was completed without 12 adjournment. 13 I do further certify that I am not a relative, employee of or attorney for any of the parties, or 14 otherwise interested in the outcome of this action. 15 I am not, nor is the court reporting firm with which I am affiliated, under a contract as defined in 16 Civil Rule 28 (D). 17 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Elyria, Ohio, this 18 _______ day of ______________, 2006. 19 20 _____________________________________ Kathleen A. Hopkins, Notary Public 21 My Commission expires 1-10-10 Recorded in Lorain County, Ohio 22 23 24 25