0001
 1              IN THE COURT OF COMMON PLEAS
                  OF CUYAHOGA COUNTY, OHIO
 2                       - - - - -
 3   CAESAR C. DAILEY,
     Individually and as
 4   Administrator of the
     Estate of Lillian Dailey,
 5   deceased,
 6         Plaintiff,
 7         vs              Case No. CV-07-629950
 8   OHIO PERMANENTE
     MEDICAL GROUP, INC.,
 9   et al.,
10         Defendants.
11   
12                       - - - - -
13          DEPOSITION OF PHILLIP SHUFFER, M.D.
14                TUESDAY, APRIL 29, 2008
15                       - - - - -
16        Deposition of PHILLIP SHUFFER, M.D., a
17   Witness herein, called by counsel on behalf of
18   the Plaintiff for examination under the statute,
19   taken before me, Vivian L. Gordon, a Registered
20   Diplomate Reporter and Notary Public in and for
21   the State of Ohio, pursuant to agreement of
22   counsel, at the offices of Buckingham, Doolittle
23   & Burroughs, One Cleveland Center, Cleveland,
24   Ohio, commencing at 11:00 o'clock a.m. on the
25   day and date above set forth.
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiff
 3         Becker & Mishkind Co., LPA, by
 4         HOWARD D. MISHKIND, ESQ.
 5         JESSICA PERSE, ESQ.
 6         Skylight Office Tower
 7         1660 West Second Street
 8         Suite 660
 9         Cleveland, Ohio 44113
10         216-241-2600
11   
12   On behalf of the Defendants
13         Buckingham, Doolittle & Burroughs, LLP, by
14         DIRK E. RIEMENSCHNEIDER, ESQ.
15         One Cleveland Center
16         Suite 1700
17         Cleveland, Ohio 44115
18         216-621-5300
19   
20   
21                       - - - - -
22   
23   
24   
25   
0003
 1         PHILIP SHUFFER, M.D., a witness herein,
 2   called for examination, as provided by the Ohio
 3   Rules of Civil Procedure, being by me first duly
 4   sworn, as hereinafter certified, was deposed and
 5   said as follows:
 6         EXAMINATION OF PHILLIP SHUFFER, M.D.
 7   BY MR. MISHKIND:
 8         Q.    Good morning.
 9         A.    Hi.
10         Q.    I'm Howard Mishkind and I represent
11   the Estate of Lillian Dailey in connection with
12   a lawsuit that has been brought against Ohio
13   Permanente concerning her death.
14               I understand, Dr. Shuffer, that you
15   were involved in at least one office visit
16   toward the end of 2005 as it relates to Lillian;
17   is that correct?
18         A.    Yes.
19         Q.    What I'm going to do is ask you some
20   background questions and start out with real
21   simple things, like having you state your name
22   for the record and talk a little bit about your
23   position at Ohio Permanente, your practice then,
24   your practice now, and talk about your
25   involvement with regard to Lillian and then we
0004
 1   will be done, okay?
 2         A.    Okay.
 3         Q.    Let's start out with the easiest
 4   question of them all and that is, can you state
 5   your name, your full name for the record.
 6         A.    Yes, I can.
 7         Q.    Then go ahead and do it.
 8         A.    See, I answered.  I got you.
 9         Q.    Very good.
10         A.    Phillip Shuffer.
11         Q.    And your middle initial is M?
12         A.    M.
13         Q.    You are originally from San Pedro,
14   California; is that correct?
15         A.    I was born in San Pedro.  That's
16   south of LA.
17         Q.    Did you grow up in California?
18         A.    Uh-huh, grew up in LA.
19         Q.    Did you go to medical school in
20   California?
21         A.    No, I did not.
22         Q.    Where did you go to medical school?
23         A.    Creighton University.
24         Q.    What years did you attend Creighton?
25         A.    '84 to '88.
0005
 1         Q.    Did you proceed directly from
 2   college to medical school?
 3         A.    I did not.
 4         Q.    Where did you go to college?
 5         A.    Stanford.
 6         Q.    What was your degree in at Stanford?
 7         A.    Double major in biology or
 8   biological sciences and anthropology.
 9         Q.    What year did you graduate?
10         A.    '83.
11         Q.    What did you do between '83 and '84?
12         A.    I did a post-baccalaureate program.
13   I worked for a summer for something like Federal
14   Express and then I went to a post-baccalaureate
15   program.
16         Q.    What was that post-baccalaureate
17   program in?
18         A.    That was just sort of a way to kind
19   of make your application, you know, to repeat
20   your application in medical school.
21         Q.    I take it the first time through you
22   weren't accepted to medical school?
23         A.    I'm still on the waiting list to
24   this day at Tufts.  That's a fact.
25         Q.    After graduating from Creighton in
0006
 1   '88, did you then do a residency?
 2         A.    I did.
 3         Q.    Where was that?
 4         A.    I did my residency at, the majority
 5   of it at Oakland Naval Hospital, Oakland,
 6   California.  And the last year, the chief year
 7   was at Kaiser, San Francisco.
 8         Q.    What was your residence in, please?
 9         A.    OB/GYN.
10         Q.    After finishing your last year at
11   Kaiser in San Francisco, tell me about your
12   practice thereafter.
13         A.    From '93 until -- that's when I
14   finished -- until I took the job here, I was in
15   the Navy.  I had payback time.  I was on a naval
16   scholarship, so I was at 29 Palms Hospital,
17   which is a Marine Corps base in southern
18   California.
19         Q.    How many years were you in your
20   payback?
21         A.    Well, all total, three.  That part
22   is two, and then there was one year between my
23   first year of training, internship and second
24   year of training when I was in Okinawa, Japan,
25   and that was '89 to '90.  Okinawa, yeah.
0007
 1         Q.    The last two years would take you
 2   from '93 to '95?
 3         A.    Correct.
 4         Q.    Were you then honorably discharged
 5   in '95?
 6         A.    Yes.
 7         Q.    You started practice then where?
 8         A.    Right here.  March 1996.
 9         Q.    You are an employee of Ohio
10   Permanente Medical Group?
11         A.    I'm a shareholder.
12         Q.    Also an employee of the corporation;
13   correct?
14         A.    Yes.
15         Q.    And have been a shareholder and an
16   employee of Ohio Permanente for the last 12
17   years?
18         A.    Employee for 12, shareholder for
19   ten.
20         Q.    Tell me about your practice.  What
21   percentage is GYN and what percentage is
22   obstetrics?
23         A.    It's general obstetrics and
24   gynecology.  I couldn't give you an accurate
25   percentage, but it's almost 50/50.  I mean, it
0008
 1   depends.  Sometimes it might be 60/40 or the
 2   other way around.
 3         Q.    Where do you practice currently?
 4   Which office or offices?
 5         A.    Offices.  Primarily I'm at the
 6   Cleveland Heights office, 10 Severance Circle.
 7   Sometimes I do some pinch hitting over at the
 8   Parma office on Snow Road.
 9         Q.    When you saw Lillian back in
10   December of 2005, that was at the Cleveland
11   Heights office; true?
12         A.    Yes.
13         Q.    Do you remember Lillian?
14         A.    Some.
15         Q.    And would that some be independent
16   of what you are able to gather from your office
17   notes?
18         A.    I have some recollection of her that
19   came from those notes.
20         Q.    So when you read the record, did it
21   create some type of a picture in your mind as to
22   the patient?
23         A.    Yes.
24         Q.    We are going to talk about your
25   note.  I still have a few more questions about
0009
 1   your background, but while I'm on it, would you
 2   tell me what you remember, what type of picture
 3   you are able to paint in your mind, if that's a
 4   fair question, after looking at the note, what
 5   you remember about Lillian.
 6         A.    Pleasant lady.  Obese.  Black.  Fair
 7   skinned.  Well spoken.  Yeah.  That's just off
 8   the top of my head, you know.
 9         Q.    Anything else that you can remember
10   descriptive about her, aside from what we will
11   gather that's noted in the record?
12         A.    No.  Just those things.  I make a
13   practice of, you know, having some small talk
14   when you meet someone for the first time, but in
15   her case, I can't remember, you know, what we
16   kind of visited about.
17         Q.    You may have had small talk with
18   her, just like you and I had sort of small talk
19   before the deposition started, but you don't
20   remember what the specifics of that small talk
21   was?
22         A.    I don't.  My purpose in doing that,
23   usually when I'm meeting someone for the first
24   time, consultation or otherwise, it sort of
25   lowers the tone.  It calms the situation or
0010
 1   whatever, and it's kind of a way of my, dealing
 2   with being a male gynecologist.
 3               A lot of -- these two ladies will
 4   tell you, they are not always comfortable when
 5   they walk in the room and see that it's a male
 6   gynecologist.  So I have a way of habit of
 7   visiting just  a little beforehand and I can't
 8   remember what that was.
 9         Q.    Along the same lines, do you have a
10   recollection, one way or another, as to whether
11   Lillian was accompanied by anyone or alone?
12         A.    She was not.
13         Q.    Do you have a recollection --
14         A.    She was not.  She was by herself.
15         Q.    Do you have a recollection as to
16   whether she seemed overly anxious or concerned
17   about her condition when she presented to you
18   for the first time?
19         A.    No.  I don't remember her being
20   tearful or histrionic or anything like that.
21   She was pretty even pace speech.  Spoke well.
22   So my guess -- I don't know this -- but that she
23   was an educated lady.
24         Q.    Fair enough.  I want to back up
25   before we remain in the clinical setting.
0011
 1               Continuing with your background and
 2   training, are you board certified?
 3         A.    Yes.
 4         Q.    And are you board certified, I
 5   presume, in obstetrics and gynecology?
 6         A.    Yes.
 7         Q.    When were you first board certified?
 8         A.    1995, November.  That's a date you
 9   remember.  Oral boards, Chicago.
10         Q.    Have you been recertified at any
11   time since '95?
12         A.    Yes.
13         Q.    On how many occasions?
14         A.    Every year I do a voluntary
15   maintenance of certification annually.
16         Q.    Doctor, I take it that your
17   privileges to practice have never been revoked
18   or suspended; is that true?
19         A.    Correct.
20         Q.    Have you ever applied for privileges
21   at any hospital and been rejected?
22         A.    No.
23         Q.    Have you ever been the subject of
24   any disciplinary action before any state medical
25   board?
0012
 1               MR. RIEMENSCHNEIDER:  Objection.  Go
 2   ahead.  You can answer.
 3         A.    No, I have not.
 4         Q.    I suspected that that was the answer
 5   but it's one of those routine questions that
 6   lawyers --
 7         A.    Sounds like it.
 8         Q.    -- that lawyers like to ask.
 9               Have you ever had your deposition
10   taken before?
11         A.    Yes.
12         Q.    How many times?
13         A.    Two times.
14         Q.    Is this the third or the second?
15         A.    This is the third.
16         Q.    Were the other two times involving
17   medical -- regarding patient matters?
18         A.    Yes.
19         Q.    Were you the physician that was
20   involved in the patient care that resulted in
21   your deposition being taken?
22         A.    Loosely in one and primarily in
23   another.
24         Q.    How long ago would it have been that
25   your deposition was last taken?
0013
 1         A.    Pre-2000, I think.  I don't remember
 2   exactly.
 3         Q.    The situations that your previous
 4   depositions were taken in, were either of them
 5   involving GYN issues as opposed to obstetrical
 6   issues?
 7         A.    No.
 8         Q.    The previous situations were
 9   obstetrical as opposed to GYN?
10         A.    Correct.
11         Q.    This case that involves the issue of
12   uterine sarcoma or uterine cancer or irregular
13   uterine bleeding and things of that nature, an
14   entirely different scenario in the two
15   situations that prompted your previous
16   depositions; is that a fair statement?
17         A.    Correct.
18         Q.    Have you ever been named as a
19   defendant in any medical negligence cases?
20               MR. RIEMENSCHNEIDER:  Objection.  Go
21   ahead.
22         A.    I guess I don't know exactly.  I
23   have been named in other cases that I believe
24   were settled.
25         Q.    Let me explain to you before you go
0014
 1   any further.  I don't want to know, at least at
 2   this particular point, and I probably won't ask
 3   you whether they were settled or went to trial.
 4               My only question is, I want to know
 5   whether you were ever named by a patient, either
 6   by yourself or with other physicians or perhaps
 7   Ohio Permanente Medical Group or Kaiser, but
 8   have you been named in a legal document as a
 9   defendant where basically a lawsuit was filed
10   against you, regardless of whether it got
11   settled, went to trial?
12         A.    In that case, yes.
13         Q.    On how many occasions has that
14   occurred?
15         A.    I don't know.  I can guess.
16         Q.    Can you give me an estimate?
17         A.    I can give you an estimate.  Less
18   than five.  Five or less is a better answer
19   maybe.
20         Q.    Have any of those cases involved you
21   going to court and providing testimony at trial?
22               MR. RIEMENSCHNEIDER:  Objection.
23   Continuing.
24               MR. MISHKIND:  That's fine.
25         A.    I have never been in a court.
0015
 1         Q.    Have you ever served as an expert
 2   witness reviewing records to determine whether
 3   or not the standard of care was met or deviated
 4   from?
 5         A.    No.
 6         Q.    Do you have any other family members
 7   that are in the medical field other than
 8   yourself?
 9         A.    Well, I have a nephew that's in
10   dentistry, and distantly there is a cousin, I
11   think, that's a physician, but I don't know
12   where he is.  We are not in touch.
13         Q.    Is your spouse employed through Ohio
14   Permanente?
15         A.    No, my wife is not.
16         Q.    Have you published any articles in
17   any journals, peer reviewed or otherwise?
18         A.    No.
19         Q.    Do you do any teaching?
20         A.    Loosely, in that in the past we had
21   some residents from Case that would come through
22   the office.  That hasn't happened for some years
23   now.  So, currently, no.  But if the opportunity
24   came up, you know what I mean, I answer
25   questions when I'm at the hospital and that kind
0016
 1   of thing, but I don't have a formal schedule or
 2   something like that to teach.
 3         Q.    Do you have a hospital practice at
 4   all?
 5         A.    I do work at hospitals also, if
 6   that's what you are asking me.
 7         Q.    Do you have privileges at local
 8   hospitals?
 9         A.    Yes.
10         Q.    Which hospitals?
11         A.    I have privileges at Fairview,
12   Marymount Hospital, and Cleveland Clinic.
13         Q.    Did you have privileges at all three
14   of those hospitals back in December of 2005?
15         A.    Yes.
16         Q.    You told me before that your
17   practice, give or take a percentage or so, is
18   50/50 OB/GYN.  Was it the same back in 2005?
19         A.    Roughly.  Maybe a little bit more
20   obstetrics at that point.
21         Q.    Have you had a chance to see
22   Dr. Verghese's deposition transcript in this
23   case?
24         A.    I have not seen her transcript.
25         Q.    Have you talked to her since her
0017
 1   deposition was taken concerning this case?
 2         A.    I don't know when she had that done,
 3   and, no, we haven't spoken in a long time.
 4         Q.    Have you talked to her at any time
 5   at all since this lawsuit was filed relative to
 6   Lillian Dailey's care?
 7               MR. RIEMENSCHNEIDER:  Objection.  I
 8   don't know if you know when the lawsuit was
 9   filed.
10               THE WITNESS: I don't.
11         A.    And we don't speak often.  If you
12   are asking, have I talked to her about this case
13   at all, the answer is no.
14         Q.    You are obviously aware that Lillian
15   died?
16         A.    I heard that.
17         Q.    How did you hear about that, other
18   than from your attorney?  If you heard it from
19   your attorney, understand that during the course
20   of the deposition, I don't want you to share
21   with me any information that you derived solely
22   from your attorney.  If the source was someone,
23   a caregiver, through word of mouth --
24         A.    Nonlegal people.
25         Q.    Exactly.
0018
 1         A.    Then the answer is no, I didn't hear
 2   about it through anyone.  I mean, I heard about
 3   it through legal.
 4         Q.    Fair enough.  Have you seen the
 5   autopsy that was performed?
 6         A.    No.
 7         Q.    Other than information that was
 8   provided to you by your attorney, do you know
 9   what the cause of death was as to what caused
10   Lillian's death?
11         A.    Other than what I have heard from
12   them, no.
13         Q.    Have you reviewed any of the medical
14   records prior to -- strike that.
15               When you saw Lillian in December,
16   you would have had available to you on the
17   computer the records that would have predated
18   your visit; true?
19         A.    That is mostly true.
20         Q.    In what respect would it not be
21   completely true?
22         A.    Well, when I got a chance to look at
23   my note -- could I take a look at that?
24         Q.    Sure, absolutely.
25         A.    Right on the second page, something
0019
 1   I -- I had heard she had had a CT scan when she
 2   was in the emergency room in October of 2005,
 3   but I was unable to get that.  So that's what I
 4   mean.  It's mostly true.  So that I didn't have.
 5   But everything else was, you know, available to
 6   me.
 7         Q.    Okay.  From looking at the record,
 8   can you tell me whether you would have discussed
 9   any of Lillian's care that had led her to your
10   office?
11               In other words, is it likely that
12   you would have talked with, perhaps, Dr. Gibbs,
13   who had seen her prior to your visit?  Do you
14   know who I'm referring to?
15         A.    I know who she is.
16         Q.    Or Dr. Verghese or any of the other
17   physicians, is it likely that on that visit that
18   you would have had communication with any of the
19   other physicians who had cared for her?
20         A.    They were available to me had I
21   called them, but I didn't contact any of them.
22         Q.    After this December 15th, 2005
23   visit, did you have any further involvement at
24   all with regard to the care or management of
25   Lillian Dailey?
0020
 1         A.    No, I did not.
 2         Q.    She obviously was referred for GYN
 3   oncologic consultation; true?
 4         A.    I'm the one that made the referral.
 5         Q.    Right.  And you referred her to who?
 6         A.    I think I did it to Chad Michener,
 7   GYN oncologist at CCF, Cleveland Clinic.
 8         Q.    Is there a GYN oncologist that is
 9   employed by Ohio Permanente Medical Group?
10         A.    No.
11         Q.    Do you have experience treating GYN
12   oncologic issues?
13         A.    Only as a resident.  But as a staff
14   physician, only in identifying something and
15   referring, that type of thing.
16         Q.    So you are familiar with at least
17   the term differential diagnosis?
18         A.    Yes.
19         Q.    And in seeing a patient who has
20   irregular uterine bleeding, do you normally go
21   through a differential diagnosis in terms of
22   evaluating the potential causes of irregular
23   uterine bleeding?
24         A.    That's fair, yes.
25         Q.    And is that something that general
0021
 1   OB/GYNs are trained to do when they see a
 2   patient that has irregular uterine bleeding, to
 3   determine what the differential would include?
 4         A.    Hopefully any physician.  A family
 5   practice physician when you look, what is that,
 6   is it this, that or whatever, so, yes.
 7         Q.    And in terms of a differential
 8   diagnosis, that would include things from the
 9   most dangerous conditions that could cause the
10   patient to die, down to the most benign
11   conditions that are far from life-threatening
12   and can be treated conservatively; is that a
13   fair spectrum?
14               MR. RIEMENSCHNEIDER:  Objection.  Go
15   ahead.
16         A.    I guess.
17         Q.    Why don't you define better for me,
18   if you would --
19         A.    I'll try.
20         Q.    -- your comfort level.
21         A.    My first thought when I see someone,
22   regardless of what they are presenting with,
23   isn't oh my goodness; what will they die from.
24   I guess I want to clarify that for you.
25         Q.    Okay.
0022
 1         A.    But I think most physicians,
 2   dermatologists, you know, when someone presents
 3   with whatever it is and it's not absolutely
 4   clear, then what's the worst thing in the world
 5   it could be.  But I don't always link that to
 6   what would kill them, okay?  So I guess that's a
 7   clarification point.
 8         Q.    I appreciate that.  In a patient
 9   that is in their mid 50s, that's
10   African-American, that is obese, that presents
11   with a history of diabetes, that has a history
12   of some irregular uterine bleeding, whether it's
13   perimenopausal or postmenopausal, do you have
14   within your differential, whether it's at the
15   top of the differential or somewhere in the
16   differential, either uterine cancer or uterine
17   sarcoma?
18         A.    Honestly, sarcoma didn't come to my
19   mind, typically because it's so incredibly rare.
20   You mentioned it.  So that's why I say that.
21         Q.    Sure.
22         A.    But broadly speaking, uterine cancer
23   you think about in obese women, whether they are
24   perimenopausal or postmenopausal.
25         Q.    In a patient who presents in their
0023
 1   mid 50s, either perimenopausal and/or
 2   postmenopausal, with diabetes, obese, that also
 3   has a history of fibroid tumors that have been
 4   documented, do you ever consider within your
 5   differential not only uterine cancer, but also
 6   the potential of a uterine sarcoma?
 7         A.    My hesitation in answering, again, I
 8   have to tell you, is that sarcoma is not the
 9   first thing that comes to my mind.
10               I guess that's important that I say
11   that to you again.  Yeah.  So do I think of a
12   number of things when someone presents that way?
13   Yes, I do.
14         Q.    And if you are --
15         A.    But sarcoma is not on that list.
16         Q.    What would need to be on the
17   clinical history or the patient's signs and
18   symptoms to at least have within the
19   differential, whether it's high up on the
20   differential or low on the differential, what
21   would you need to see to consider that the
22   patient may have uterine sarcoma as opposed
23   to --
24         A.    Some other cancer or something?
25         Q.    Exactly.
0024
 1         A.    Okay.  For sarcoma to make the list
 2   for me, I guess the first thing that comes to my
 3   mind is, are there things about that individual
 4   patient that makes me think that they have a
 5   cancer.  I guess that's step one.  And I'm going
 6   to refer to this now, okay?  Is that okay?
 7         Q.    Let's keep it general right now and
 8   then we will dovetail into that patient.
 9         A.    In that case I'll make a general
10   statement and that's that there are certain red
11   flags, if you will, that appear in a history
12   when you are speaking to someone that are
13   concerning.  So that makes you think cancer.
14               To go beyond the, I think this might
15   be a cancer and make the leap into something as
16   rare as a sarcoma, then my concern would be is
17   there some radiologic study that would suggest
18   there is nothing going on with the ovaries and
19   that there is apparently nothing going on in the
20   cavity of the uterus, okay, the endometrium, and
21   is the uterus enlarged.
22               So there is not a precise number in
23   my mind; it's past a certain time and that means
24   sarcoma.  It's like a puzzle piece, you know.
25   It's a constellation of things.  There is not a
0025
 1   thing.  Did I answer that?
 2         Q.    You did.  I'm going to ask you a
 3   couple more questions to refine that.
 4               Is endometrial cancer more common
 5   than uterine sarcoma?
 6         A.    Oh my goodness, yes.
 7         Q.    In a patient in their mid 50s that
 8   has fibroids that are increasing in size on
 9   serial ultrasounds, does that at least create an
10   issue within that differential as to whether or
11   not a patient who did not have a prior history
12   earlier in their age, but in their mid 50s
13   demonstrates increasing fibroids on serial
14   uterine exams, is that more consistent with
15   endometrial cancer or is that more consistent
16   with uterine sarcoma?
17         A.    I hope I trailed you.  I hope I
18   track you on that.
19               MR. RIEMENSCHNEIDER:  Note my
20   objection to the question.  Go ahead.
21         A.    Could you restate that shorter?
22         Q.    Sure.
23         A.    I don't want to go the wrong way.
24         Q.    Can we agree that it's unusual in a
25   patient who is postmenopausal or perimenopausal
0026
 1   to have fibroids?
 2         A.    No, we can't agree on that.
 3   Fibroids are awfully common.  25 percent of
 4   white women, 50 percent of black women have
 5   them, and whether they are perimenopausal or
 6   postmenopausal, they can be present.  And that
 7   in and of itself to a gynecologist I don't think
 8   means anything, it's a finding.
 9         Q.    As women get older and they are in
10   their 50 to 55 range, whether they are
11   perimenopausal or postmenopausal and they have
12   irregular uterine bleeding and have increasing
13   uterine size, that the fibroids are increasing
14   in size, is that a fact that at least creates a
15   concern in terms of whether the patient may have
16   a uterine sarcoma?
17               MR. RIEMENSCHNEIDER:  Note an
18   objection as to the characterization of the
19   question.  Because I just want to make sure, are
20   we talking does the uterine increase in size or
21   fibroids increase in size, because you said
22   both.
23         Q.    What is your understanding as to
24   whether or not -- you had the information
25   relative to the increase from the ultrasounds in
0027
 1   terms of Lillian's uterus; correct?
 2         A.    I looked.  I got the results of two
 3   ultrasounds that I wanted to see.
 4         Q.    And there was an increase in the
 5   size of the uterus on those two ultrasounds;
 6   correct?
 7         A.    Correct.
 8         Q.    Now, was the increase in the size on
 9   the two ultrasounds, was that of the uterus, was
10   it of the fibroids, or was it both?
11         A.    I would actually say both.  Usually
12   when a gynecologist talks about the overall --
13   we speak of the overall size of the uterus.
14         Q.    And you use weeks?
15         A.    We use weeks, as if they are
16   pregnant, you know.
17         Q.    And in this case, in looking back at
18   the records, there was some descriptions of a 12
19   week size and then there was some other
20   descriptions.
21               Is that a description of the overall
22   size of the uterus or does that take into
23   account the increase in the size of the
24   fibroids, as well?
25         A.    That's the overall size of the
0028
 1   uterus.
 2         Q.    And is that overall --
 3         A.    And that includes the fibroids.  So
 4   it's both.
 5         Q.    So the fibroids at least contribute
 6   to the overall size of the uterus?
 7         A.    We can agree on that.
 8         Q.    So when you saw her in December, you
 9   knew that there was an increase in the overall
10   size of this patient's uterus; correct?
11         A.    I knew that.
12         Q.    You also knew that there had been, I
13   believe, one endometrial biopsy that had been
14   performed back in, I may be wrong, but I
15   think --
16         A.    I wrote it in here.  I can look if
17   you want me to.
18         Q.    Go ahead and do that rather than me
19   being wrong because I hate being wrong.
20         A.    Then you don't like being human.
21   Shame on you.
22         Q.    The record should reflect that was
23   my attempt at humor.
24         A.    I could direct you to a 12 step
25   program.
0029
 1               The endometrial biopsy was May of
 2   2005.  That's when it was.
 3         Q.    And prior to May of 2005 -- and that
 4   was done by Dr. Verghese?
 5         A.    Dr. V.
 6         Q.    Dr. V.  But there wasn't one that
 7   had been done back in, for example, October or
 8   December of 2004, to your knowledge, was there?
 9         A.    Not to my knowledge.
10         Q.    And when you saw her in December,
11   there had been only one endometrial biopsy;
12   true?
13         A.    As far as I knew, yes.
14         Q.    So when you saw her, the endometrial
15   biopsy was negative; correct?
16         A.    It was within normal limits, yes.
17         Q.    I think that biopsy, did it show up
18   .9 centimeter thickness or was that on the
19   ultrasound that showed the uterine wall?
20         A.    Endometrial biopsies don't comment
21   on thickness.  Ultrasounds comment on thickness.
22         Q.    And there was one of the ultrasounds
23   that showed a .9 centimeter thickness of the
24   uterine wall.  Do you recall that?
25         A.    I don't recall that.
0030
 1         Q.    One of the ultrasounds did reflect a
 2   thickness of .9 centimeters.  Is that a normal
 3   or abnormal finding in a patient of this age
 4   with irregular uterine bleeding?
 5         A.    In and of itself, that one piece of
 6   information doesn't kind of send me one way or
 7   another.  I guess it would depend on whether the
 8   patient was perimenopausal or postmenopausal.
 9         Q.    Okay.  As you are gathering
10   information to work your differential up, you
11   want to gather as much information as you can to
12   try to go down the right path in terms of
13   testing and ultimately leading to a diagnosis;
14   correct?
15               MR. RIEMENSCHNEIDER:  Objection.  Go
16   ahead.
17         A.    Useful information, yeah.
18         Q.    Sure.  And that's what you did when
19   you saw her; you took history and clinical
20   parameters to do your differential and then to
21   make appropriate recommendations; true?
22         A.    Yes.
23         Q.    Now, in terms of .9 centimeters
24   thickness of the uterine wall, you said that
25   that in and of itself would not, wouldn't lead
0031
 1   you to one diagnosis versus another; true?
 2         A.    True.
 3         Q.    What would you need along with a .9
 4   centimeter thickness in the uterus in a patient
 5   in their mid 50s to start coming up with a
 6   differential list of potential diagnoses?  What
 7   else would you need to know?
 8         A.    The concern for me would be -- well,
 9   are they having irregular bleeding.  Ultimately,
10   I guess foundationally, are they postmenopausal
11   or perimenopausal. That shifts things.
12         Q.    So irregular uterine bleeding or
13   what is sometimes known as anovulatory bleeding?
14         A.    That's one type of irregular
15   bleeding.
16         Q.    Whether or not they are
17   perimenopausal or postmenopausal?
18         A.    That's the key, yeah.
19         Q.    What about diabetes, is that a
20   factor?
21         A.    That is a factor.
22         Q.    Hypertension, is that a factor?
23         A.    Not so much.
24         Q.    Do you exclude that in terms of any
25   significance?
0032
 1         A.    I don't pay attention to that.
 2         Q.    Fair enough.  So diabetes, obesity?
 3         A.    That is a factor.
 4         Q.    Ethnicity?
 5         A.    Not so much.
 6         Q.    But is it a soft factor or do you --
 7         A.    It's like Gossamer, it's that soft.
 8         Q.    Fair enough.  Diabetes, obesity,
 9   anovulatory bleeding, age, perimenopausal,
10   postmenopausal?
11         A.    Yeah.  More than age even, you know,
12   unless they were 70, you know, but whether they
13   are perimenopausal or postmenopausal, that's a
14   key.
15         Q.    And then from the standpoint of
16   ultrasound findings, uterine growth of the
17   uterus over a period of time, does that also
18   factor into whether or not or how you arrive at
19   your differential diagnosis?
20         A.    That's one of the pieces of the
21   puzzle, yes.
22         Q.    Have you in preparation for today's
23   deposition looked back at the notes that were
24   made by any of the caregivers prior to your
25   visit?
0033
 1         A.    No, I have not looked at the notes.
 2         Q.    Do you have an independent
 3   recollection of what information your
 4   colleagues, whether they are in OB/GYN or family
 5   practice, what information they have to make
 6   their various recommendations or diagnoses?
 7         A.    The quick answer is no.  But I mean,
 8   that was available to me, but for where we are
 9   now and everything, my note is the main thing
10   that I've looked at.  I heard about some things,
11   you know, but that's about it.
12         Q.    We know that Lillian had been seen
13   back in October of 2004 by Evelyn James, who is
14   a clinical nurse practitioner.  Do you know
15   Evelyn?
16         A.    I do know her.
17         Q.    When is the last time you had any
18   contact with Evelyn?
19         A.    When she retired almost a year ago.
20         Q.    Did you know that Evelyn had seen
21   Lillian back in October of 2004 for what was at
22   that time scheduled as a well woman exam?
23         A.    I may have known that then, but I
24   can't independently, to use your words, recall
25   that she specifically was the nurse practitioner
0034
 1   that saw her.
 2         Q.    Have you reviewed any of her records
 3   to know whether or not she should have referred
 4   Lillian to a GYN at the time of that office
 5   visit to be seen based upon whatever symptoms
 6   she had in October of 2004?
 7         A.    That I don't recall.
 8         Q.    So you are not in a position to
 9   provide what we refer to as standard of care
10   opinions as it relates to people that came
11   before you in December of 2005 to comment on
12   whether or not what they did was within standard
13   or deviated from standards; is that a fair
14   statement?
15               MR. RIEMENSCHNEIDER:  Objection.  Go
16   ahead.
17         A.    Well, as a board certified
18   gynecologist that's practiced for a while now, I
19   actually think I could make a comment on -- in
20   the realm of general obstetrics and gynecology,
21   I could make a comment on standard of care.
22         Q.    Have you reviewed the records
23   sufficiently enough to be able to comment on the
24   standard of care provided by your colleagues
25   prior to your care in December of 2005?
0035
 1         A.    I haven't combed through records.
 2   If I'm deciphering what you are saying
 3   correctly, I haven't combed through records to
 4   give a complete judgment.
 5               I guess I need to go through an
 6   entire record or be presented with a scenario,
 7   but I could make a comment.
 8         Q.    Fair enough.  The reason I ask that
 9   is I don't want to spend a lot of time --
10   sometimes I come into a deposition and the
11   doctor has reviewed all of the records since you
12   had them and is very comfortable with saying
13   what was done before I saw the patient was
14   appropriate, within accepted standards, and I
15   wouldn't have done anything differently based
16   upon a careful review of the records.
17               Other times doctors say to me, I
18   really haven't reviewed it sufficiently enough
19   and I'm not in a position to provide opinions
20   one way or another.
21               And I just want to know, as you are
22   sitting here right now whether or not you have
23   reviewed the records sufficiently enough to be
24   able to comment on the standard of care provided
25   by those that saw her in October of '04, those
0036
 1   that saw her in May of '05 and June of '05 and
 2   certainly prior to what you did in December of
 3   '05?
 4         A.    To be completely thorough, I would
 5   need to go through all the records, that's true.
 6   But I go back to what I said before.  If you
 7   present something to me, I think I can make an
 8   educated comment on it.
 9         Q.    Okay.
10               MR. MISHKIND:  And Dirk, I don't
11   know how comfortable you are with me going
12   through or whether you are intending to have the
13   subsequent caregivers give standard of care
14   opinions.  Obviously I don't have a report from
15   him.
16               MR. RIEMENSCHNEIDER:  Right.  I
17   mean, our reports aren't due anyway.
18               MR. MISHKIND:  Right.
19               MR. RIEMENSCHNEIDER: You see
20   objective criteria which he put in his note.
21   I'm not sure what you are asking him.  I think
22   that's how he answered the question.
23               If you present him with questions
24   regarding care of some of the previous health
25   care providers in a hypothetical, I think what
0037
 1   he said is, based upon his education, training
 2   and experience, he might have an answer.  I
 3   don't know until we hear the question.  And if
 4   you are just focusing on his care and treatment,
 5   then probably everything will move a lot
 6   quicker.
 7         Q.    Well, have you been asked at least
 8   at this particular point to provide opinions as
 9   to the care that was provided by anyone other
10   than yourself?
11               MR. RIEMENSCHNEIDER:  Anything that
12   you and I have discussed is off limits.
13               THE WITNESS: In that case, the
14   answer is no.  No one has.
15         Q.    And as you are sitting here right
16   now, unless I give to you hypothetical questions
17   as it relates to what was done by Dr. Verghese
18   or anyone else, you haven't formulated any
19   specific standard of care opinions in this case;
20   is that a fair statement?
21         A.    That's fair.
22         Q.    Okay.  Would you agree with this
23   statement, that abnormal uterine bleeding in a
24   peri or postmenopausal woman should be
25   considered a malignancy until proven otherwise?
0038
 1         A.    It depends on how, whoever that is,
 2   is defining abnormal uterine bleeding.  Abnormal
 3   uterine bleeding in a postmenopausal woman is a
 4   big deal.  You have to assume that's a cancer,
 5   always.
 6               In a perimenopausal woman, there is
 7   a variety of benign conditions that could give
 8   you abnormal uterine bleeding, so it's not
 9   necessarily the first thought.
10         Q.    I appreciate your answer.  It's
11   informative.  Let me give you sort of a
12   subcategory of that.
13               In a patient that has abnormal
14   uterine bleeding, whether they are peri or
15   postmenopausal, should a malignancy be within
16   the differential?  Not necessarily at the top,
17   could be at the bottom, but somewhere within the
18   differential?
19         A.    That's fair.
20               MR. RIEMENSCHNEIDER:  Do you want to
21   tell us what you are reading from?
22               MR. MISHKIND: It's my notes.  I
23   don't think I have to.
24               MR. RIEMENSCHNEIDER:  I agree with
25   you.  I didn't know if you were reading from
0039
 1   some sort of journal.
 2               MR. MISHKIND:  Could be.
 3               MR. RIEMENSCHNEIDER:  If it was, I
 4   think in fairness he is allowed to see the
 5   entire article.
 6               MR. MISHKIND:  No, he isn't.
 7               MR. RIEMENSCHNEIDER:  I disagree
 8   with you.  You can go on and ask the question.
 9               MR. MISHKIND:  Thanks.  I appreciate
10   the conversation.
11         Q.    If Lillian was postmenopausal, as I
12   understand it, from what I learned from
13   Dr. Verghese and from perhaps even some of the
14   policies that you folks had at Ohio Permanente,
15   postmenopausal means no menses for greater than
16   one year and not on any hormone replacement
17   therapy?
18         A.    Correct.
19         Q.    Now, we know that Lillian was not on
20   any hormone replacement therapy prior to May of
21   2005; correct?
22         A.    I think that's true.
23         Q.    At least according to the records,
24   didn't Dr. Verghese put her on some, was it
25   estrogen or progesterone?
0040
 1         A.    I believe she was placed on a
 2   progestin.
 3         Q.    Okay.  Now, Mr. Riemenschneider
 4   faxed over to me yesterday the department of
 5   obstetrics and gynecology practice guidelines.
 6   Are you familiar with those?
 7         A.    They exist, yes.
 8         Q.    And being that you are a shareholder
 9   of Ohio Permanente Medical Group, do you have
10   any involvement in reviewing and revising those
11   practice guidelines from time to time?
12         A.    Loosely, yes.
13         Q.    Tell me what you mean by loosely.
14         A.    Well, I have the opportunity to make
15   a comment if something should be revised or
16   changed or something like that.  So that's what
17   I mean by that.
18               But I'm not the original author of
19   any, I don't think -- maybe one of the
20   obstetrical ones -- but I'm not the author on
21   any of the gynecological ones.
22         Q.    Is there a committee at Ohio
23   Permanente that is specifically assigned to the
24   review and revision of practice guidelines?
25         A.    The last time that we went over the
0041
 1   guidelines, it was something that was done as a
 2   department.  So I think they were -- I don't
 3   know the computer terms -- but they were posted
 4   so that we could look at them and make comments
 5   and then get it back to the department head.
 6         Q.    Who is the department head?
 7         A.    Charles Zonfa.
 8         Q.    Who was the department head back in
 9   2005?
10         A.    Well, I can't remember when it
11   changed, but it was Mark Vinstock before that.
12   But he might have been -- I don't remember.
13         Q.    The first doctor's name began with a
14   Z?
15         A.    Zonfa.
16         Q.    Help me out.
17         A.    Z-O-N-F-A, Charles.
18         Q.    Do you hold a position, a title
19   within the department of obstetrics and
20   gynecology?
21         A.    Yes.
22         Q.    What is your title?
23         A.    I'm the lead physician for the
24   eastside obstetrical/gynecological team.
25         Q.    Were you back in 2005?
0042
 1         A.    This is going to sound bad, but I
 2   think I was.
 3         Q.    What are your responsibilities as
 4   lead physician?
 5         A.    Administrative, additional
 6   administrative things.  So helping with making
 7   the call schedule, writing reviews, you know,
 8   that type of thing.
 9         Q.    When is the last time you had an
10   opportunity to review the practice guidelines?
11         A.    An opportunity?
12         Q.    When is the last time you reviewed
13   the practice guidelines?
14         A.    That's better.  Portions of them I
15   think I looked at certainly within the past five
16   years, but I couldn't give you a specific date.
17   Because things haven't changed, you know,
18   dramatically, that's why.
19         Q.    Fair enough.  Besides the note from
20   your visit, did you review any other portions of
21   Lillian's records to prepare yourself for today?
22         A.    No.
23         Q.    Have you reviewed anything else
24   outside of the records from Ohio Permanente
25   relative to Lillian to prepare yourself for
0043
 1   today?
 2         A.    Nothing beyond my note.
 3         Q.    Have you seen any of Lillian's
 4   records from, say, The Cleveland Clinic, or
 5   anything outside of Ohio Permanente at any time
 6   since you saw her back in December of '05?
 7         A.    No.
 8         Q.    Have you reviewed -- you hesitate,
 9   and in fairness to you I'm going to stop and let
10   you ponder that hesitation.
11         A.    The hesitation is usually after you
12   send someone to -- you refer them out.  The
13   gynecologic oncologist will send a letter as to
14   how they are doing. And way back then, my guess
15   is that Dr. Michener did that, but I haven't
16   seen that paper, that consultation, thank you
17   for referring this lady, da, da, da type thing
18   in preparation for this.  So that's what made me
19   pause.
20         Q.    Is it possible that you had some
21   conversations with Dr. Michener at or around the
22   time that she was being treated at the Clinic
23   that you just don't remember at this particular
24   point?
25         A.    Unlikely.  I do recall calling his
0044
 1   secretary to get an appointment scheduled for
 2   her, but that was about it.
 3         Q.    Do you know how common it is for a
 4   patient that has uterine sarcoma to die of a
 5   pulmonary sarcoma?
 6         A.    A pulmonary sarcoma?
 7         Q.    A sarcoma embolism, excuse me.
 8         A.    A sarcoma embolism.  You mean a
 9   portion of the tumor --
10         Q.    Embolizing.
11         A.    -- breaking loose the tumor and
12   going to the lung?
13         Q.    Right.
14         A.    I don't know.  That sounds
15   incredibly rare.  A sarcoma embolism.  A blood
16   clot, I have heard of that with any cancer, but
17   I have never heard that.
18         Q.    Okay.
19         A.    Sarcoma embolism, is that how she
20   died?
21         Q.    You have not seen the --
22         A.    I can't answer your question then.
23   Is that the deal?
24         Q.    Fair enough.
25         A.    That's not fair.  You can put that
0045
 1   in the record.  Now I'm curious.
 2         Q.    You told me a moment ago that you
 3   would have been aware of the ultrasounds when
 4   you saw Lillian in December of 2005; that there
 5   were previous ultrasounds that had been done;
 6   true?
 7         A.    Yes.
 8         Q.    Just looking at my notes, the uterus
 9   back in December of '04, it looks like the
10   measurements had gone from 14.8 by 10.9 by 9.7
11   versus a previous ultrasound of 12.7 by 9.5 by
12   10.2.
13               If you compare the two sizes of the
14   uterus from December of '04 to May of '05, is
15   that a significant increase in the size of the
16   uterus in a perimenopausal patient who has
17   irregular uterine bleeding?
18         A.    It's something worth noting, but in
19   and of itself that doesn't bring me to a
20   conclusion or to a diagnosis.
21         Q.    So you would still be working up
22   that differential?
23         A.    It's a piece of the puzzle.
24         Q.    And again, not arriving necessarily
25   at a definitive diagnosis, but within that
0046
 1   differential, would a malignancy be one of those
 2   possible diagnoses?
 3               MR. RIEMENSCHNEIDER:  Objection.
 4         A.    Possibly.
 5         Q.    Now, just to refine that,
 6   malignancy, would that include the possibility
 7   of a uterine sarcoma as well as endometrial
 8   sarcoma or would the increase of the size of the
 9   uterus in a perimenopausal patient that has
10   irregular uterine bleeding, if you are
11   considering a malignancy -- not necessarily
12   jumping to the conclusion but considering --
13   would that malignancy be a generic uterine
14   cancer or would you be thinking as a possibility
15   uterine sarcoma?
16               MR. RIEMENSCHNEIDER:  Objection to
17   form.  Go ahead.
18         A.    In the realm of possibility, I
19   guess, yes, but that's a stretch.
20         Q.    Yes, uterine sarcoma or would you
21   be --
22         A.    It could be a cancer.  I guess in my
23   brain, yes, I guess it could be a cancer, but
24   sarcoma wouldn't enter my mind at that point.
25         Q.    Now, what do you need to do to rule
0047
 1   in or rule out cancer, even though the patient
 2   may in fact be perimenopausal as opposed to by
 3   definition postmenopausal?
 4         A.    For me, I guess --
 5               MR. RIEMENSCHNEIDER:  Note an
 6   objection as to the generic form of the
 7   question.  I don't know the specifics.  I think
 8   it's really generic as to possibilities, but
 9   that's what I have an objection to.
10         Q.    Go ahead.
11         A.    There are some, I think I mentioned
12   earlier, red flags for me that make me think of
13   cancer in a lady and there is a host of things.
14   Do you want me to get specific as to this lady?
15         Q.    We are going to very shortly.  But
16   in a perimenopausal patient with irregular
17   uterine bleeding that has increase in the size
18   of the uterus from December of '04 to May of '05
19   as described, what I think my question was, what
20   things need to be done to rule in or to rule out
21   uterine cancer if it's within a differential?
22         A.    Well, I think most folks -- or I'll
23   speak for myself -- the first thought is a
24   specific type of uterine cancer, endometrial,
25   which I mentioned or alluded to earlier is very
0048
 1   common, and so an endometrial biopsy is a useful
 2   tool.
 3               So if you are thinking that
 4   something questionable might be going on, the
 5   most return on your effort is going to come from
 6   doing an endometrial biopsy.
 7         Q.    If the endometrial biopsy is
 8   negative, can one rule out a malignancy based
 9   upon one normal endometrial biopsy?
10         A.    Not 100 percent, but very high, you
11   know.  There is a good chance that it's not a
12   malignancy.
13         Q.    If the patient continues with
14   symptoms in terms of irregular uterine bleeding,
15   even with treatment with an estrogen or
16   progestin treatment after an endometrial biopsy
17   is reported as negative, does that move you one
18   way or another on whether or not there might be
19   a malignancy that just was not diagnosed by the
20   endometrial biopsy?
21         A.    I guess in that presentation, the
22   way you offer it to me just now, my thought
23   would go along, is there an anatomic reason for
24   her bleeding versus a hormonal reason.
25               Continue?
0049
 1         Q.    Please.
 2         A.    So traditionally I guess there is
 3   dysfunctional uterine bleeding which long ago
 4   the original definition of that was irregular
 5   bleeding that's associated with a hormonal
 6   cause.
 7               The other is abnormal uterine
 8   bleeding, which these days those terms are
 9   almost kind of synonymous.  But abnormal uterine
10   bleeding points more to anatomic reasons; polyps
11   for example, endometrial polyps.  Fibroids,
12   fibroids could be a cause of bleeding.  Some
13   mucosal fibroids that, you know, jet into the
14   cavity of the uterus, those could be causes of
15   irregular bleeding too.
16         Q.    And within that subset, the anatomic
17   causes of irregular uterine bleeding, if they
18   are associated with fibroids, what can you do to
19   determine whether or not that irregular uterine
20   bleeding that is in fact in a patient who has
21   fibroids, whether or not that patient has a type
22   of cancer, either a sarcoma or some other cancer
23   that is associated with those fibroids, what do
24   you do next?
25               MR. RIEMENSCHNEIDER:  Objection.  Go
0050
 1   ahead.
 2         A.    That's the sad part about
 3   medicine -- gynecology today.  You know, there
 4   is no, short of surgery, study that can be done
 5   that can definitively diagnose a nonendometrial
 6   or any kind actually of uterine -- we use that
 7   term broadly -- uterine cancer.
 8               So we can do something about trying
 9   to figure something out preoperatively about an
10   endometrial cancer, but you can't diagnose, to
11   my knowledge -- I mean, a GYN oncologist would
12   maybe say otherwise, I confess to that -- but
13   from a generalist's point of view, I don't think
14   an MRI or what have you would diagnose a cancer
15   in one of those fibroids or within the
16   myometrium, the muscular wall of the uterus
17   itself, you can't diagnose it that way.
18         Q.    What about a hysteroscope?
19         A.    A hysteroscope is useful for the
20   cavity of the uterus and that's about it.  You
21   can look in and say, I see polyps, I can make a
22   comment on the lining of the uterus, what it
23   looks like, you can sample that so you get a
24   histologic answer.
25               And I guess that is firm, but you
0051
 1   can't somehow get a biopsy of the myometrium
 2   that way or whatever.  That's it.
 3         Q.    I didn't want to interrupt you.
 4   Have I been fair to you thus far in terms of
 5   answering the questions that I presented?
 6               MR. RIEMENSCHNEIDER:  Objection.  Go
 7   ahead.
 8         A.    Yes.
 9         Q.    I haven't cut you off?
10         A.    No.  You could've given me some
11   money or whatever, that would've gone over
12   better, but no.
13         Q.    Short of that?
14         A.    Short of that, I guess so.
15         Q.    From what you gathered in looking at
16   the records, was there any consideration of
17   doing any further diagnostic studies, such as a
18   hysteroscope, on this patient prior to seeing
19   her in December of '05?
20         A.    Unfortunately, no.  No.  Again, I'm
21   going by, I have the benefit of the
22   retrospectoscope, you know.
23         Q.    Sure.
24         A.    So, no.  An endometrial biopsy is
25   the first thing absolutely that should have been
0052
 1   done and on here it says when it was done.  But
 2   that's about it.
 3         Q.    If a hysteroscope had been done in
 4   this case, knowing what you saw and what your
 5   ultimate diagnosis was, do you know what
 6   additional information that would have provided
 7   in this patient?
 8               MR. RIEMENSCHNEIDER:  Objection.  If
 9   you know.
10         Q.    You can go ahead and answer.
11         A.    In my opinion, it would not have
12   given me -- well, the endometrial biopsy was
13   useful to say whether something is a cancer or
14   not in the lining of the uterus, okay?
15               A hysteroscope is a stretch, but you
16   could have seen, perhaps, a polyp or something
17   in the cavity that the pipelle things you do the
18   biopsies with didn't detect.
19               But that by itself, that wouldn't
20   have led me to cancer.  That would have actually
21   drawn me more towards what I defined as abnormal
22   uterine bleeding.
23         Q.    Would a hysteroscope have been
24   useful in terms of arriving at an earlier
25   diagnosis of uterine sarcoma?
0053
 1         A.    No, absolutely not.
 2         Q.    If one has reason to suspect on a
 3   differential that the patient has uterine
 4   sarcoma, I think you told me a moment ago that
 5   one of the modalities, unfortunately, that you
 6   have to implement if you believe that there is
 7   uterine sarcoma is a hysterectomy?
 8         A.    Well, a GYN oncologist could answer
 9   that better.  But from a generalist, if there is
10   a uterine -- again, I'm using that term broadly
11   to include a lot of things -- a cancer of the
12   uterus, that's a referral.  They make the call
13   as to how they proceed.
14         Q.    Are D&C's and hysterectomies used in
15   patients who are perimenopausal or
16   postmenopausal where there is a high index of
17   concern that the patient's irregular uterine
18   bleeding is a manifestation of uterine cancer or
19   uterine sarcoma?
20         A.    Neither would be used with a
21   sarcoma, I don't believe.  Again, you would have
22   to ask a GYN oncologist to be more specific, but
23   D&C's are done, but again, that's sort of,
24   that's not even as useful, I don't think so, as
25   an endometrial biopsy.
0054
 1         Q.    An endometrial biopsy, what is that
 2   going to tell you in a patient who ultimately
 3   has uterine sarcoma?
 4         A.    It tells you what pathology, if any,
 5   is in the cavity of the uterus.
 6         Q.    The fact that the endometrial biopsy
 7   in May was negative, what does that tell you as
 8   to the status of her uterine sarcoma at that
 9   point in time?
10         A.    It doesn't make a comment on the
11   sarcoma.
12         Q.    Now, do you have any reason to
13   believe that in May of 2005 -- you saw her in
14   December of 2005 -- do you have any reason to
15   believe that she didn't already have a uterine
16   sarcoma about four or five months earlier?
17               MR. RIEMENSCHNEIDER:  Objection.  Go
18   ahead.
19         A.    I think I missed you just there.
20   You are asking me, I think, looking backwards in
21   hindsight, could she have not had a sarcoma in
22   May of 2005, is that correct?  Is that what you
23   are asking?
24         Q.    Sort of, but let me rephrase it to
25   make sure how you reworded it and how I meant
0055
 1   it.
 2               We know the endometrial biopsy was
 3   reported as negative?
 4         A.    It was negative.
 5         Q.    Because it was negative, does that
 6   tell you anything relative to whether she had
 7   uterine sarcoma?
 8         A.    Or did not have.
 9         Q.    Or did not have uterine sarcoma?
10         A.    It does not answer that question.
11         Q.    Do you have an opinion as to why --
12   do you have an opinion to a probability as to
13   whether or not she had uterine sarcoma back in
14   May of 2005, notwithstanding the negative
15   endometrial biopsy?
16         A.    My speculation would be that she
17   did, in fact, have a sarcoma before.
18         Q.    You use the term speculation.  Is
19   that just speculation or is that an opinion to a
20   reasonable degree of probability more likely
21   than not?
22         A.    More likely than not, I suppose, but
23   I'm not an expert on that and these are rare,
24   so --
25         Q.    Do you have an opinion more likely
0056
 1   than not as to how long prior to May of 2005 she
 2   had the uterine sarcoma even though we have the
 3   negative endometrial biopsy?
 4         A.    I can't give you a good time course
 5   on that.  I can't answer that.  I don't have a
 6   good opinion.
 7         Q.    If I'm summarizing what you told me,
 8   that more likely than not in May of 2005, even
 9   though there was a negative endometrial biopsy,
10   your opinion is that she probably had uterine
11   sarcoma at that time.  As to how long before she
12   had it --
13         A.    I can't answer that.
14         Q.    -- that would be speculation as
15   opposed to probability; is that a fair
16   statement?
17         A.    Yes.
18         Q.    Do you know what frequency
19   endometrial biopsies are done where they are
20   reported as a false negative in a patient who
21   does have uterine sarcoma?
22         A.    I do not know that answer.
23         Q.    All right.  Let's talk about your
24   visit.  You saw her on December 15th and the
25   reason for the visit was what?
0057
 1         A.    She had had an ultrasound.  I'm
 2   going by what is listed here.  And it was to
 3   review that ultrasound with her.
 4         Q.    The notes for the reason for the
 5   visit, were they written by you at that point or
 6   were they written by a nurse?
 7         A.    A medical assistant wrote the
 8   majority of what's up there.  Some of that is my
 9   scribble.
10         Q.    Help me out with who, if you know,
11   was the medical assistant.
12         A.    I do.  It was Ms. Wesley.  It's
13   listed down here, nurse signature, MA.
14         Q.    Got it.  Under last menstrual
15   period, I'm not sure whether that January 2005
16   is -- well, strike that.
17               There is a box for postmenopausal
18   hysterectomy or ABN.  What does ABN stand for?
19         A.    Abnormal.
20         Q.    And someone put postmenopausal?
21         A.    That was not me.
22         Q.    The reason for the visit and all of
23   that information would have been recorded when
24   you saw the patient; correct?
25         A.    Correct.
0058
 1         Q.    You didn't change that from
 2   postmenopausal to perimenopausal, did you?
 3         A.    No.  I should have.  That would have
 4   been more accurate.  But that's the nurse's
 5   notes, and as a rule, we don't change the
 6   nurse's notes.
 7         Q.    You didn't record anywhere in your
 8   notes that the patient was perimenopausal as
 9   opposed to postmenopausal, did you?
10         A.    I didn't write that down
11   specifically, but I did, at least for myself,
12   wrote down some bleeding that she had had.  This
13   is just shorthand for me.
14               Where it says last menstrual period
15   I put January of 2005, until now, that arrow.
16   So what that said to me, she had been having
17   bleeding off and on.
18         Q.    Now, it's important, is it not, to
19   recognize in order to come up with a definitive
20   statement as to whether the patient is
21   perimenopausal or postmenopausal, it really is
22   important to know when the patient had their
23   last menstrual period; correct?
24         A.    It's useful.
25         Q.    And do you recognize in this case
0059
 1   that there are various notes by various people
 2   recording the last menstrual period at different
 3   points in time in this case?
 4         A.    I don't know that.
 5         Q.    There are some references that the
 6   last menstrual period was June or April of 2004.
 7   There's some reference or suggestion that it
 8   might have been December of 2004.  There is a
 9   reference, you made a reference of January 2005
10   until now, which may or may not be a suggestion
11   that that was her last menstrual period.
12               But is it, in your experience, is it
13   common in a woman who is in their 50s, that is
14   having irregular uterine bleeding, to use
15   perhaps inexact terminology in responding to
16   what's going on with their uterine bleeding as
17   to whether or not it is representative of a
18   period as opposed to spotting and bleeding?  Do
19   you follow what I'm asking you?
20         A.    I think so.  I guess I can't give
21   you just a blanket yes or no on that.
22         Q.    I'm not asking for a blanket yes or
23   no.  You can qualify it.  But what I'm trying to
24   understand, and guy-to-guy here, how does one
25   really nail down from a woman in her late 40s to
0060
 1   early 50s that is having problems, irregular
 2   uterine bleeding, to really determine when did
 3   you last have what was really a normal menses?
 4         A.    That's difficult to do.
 5         Q.    Does it require careful history and
 6   inquiry of the patient?
 7         A.    I guess it depends on what's going
 8   on with that individual patient.  I'll go on
 9   with that --
10         Q.    Sure, go right ahead.
11         A.    -- in this particular case.
12         Q.    That's fine.
13         A.    All right?  There were overwhelming
14   things that presented themselves to me and drew
15   my attention quickly after talking to her, you
16   know, and taking her history, that took me
17   beyond labels, if you will, okay?
18               So, you know, it would have been
19   nice, I guess, if I had written down the
20   patient's age -- it's already listed -- but the
21   patient is perimenopausal.  I don't always write
22   that in my notes, I confess.  That's just kind
23   of the way I do it.
24               But the other overriding things in
25   the puzzle, you know, the overall puzzle of the
0061
 1   way she presented drew me to the conclusion that
 2   I made.
 3               So it was almost immaterial in
 4   regard to her whether, you know, when exactly
 5   was her last cycle, you know, because I had
 6   information, objective information that I could
 7   look at.
 8               That, plus history, plus the
 9   limited, you know, experience by that time that
10   I have had as a board certified gynecologist.
11   So that took me to the conclusion.
12         Q.    Okay.  So we can agree, at least, in
13   terms of the statement of when your last
14   menstrual period was, in an older patient who
15   has had irregular bleeding sometimes defining a
16   set date as to when they last had a menstrual
17   period can sometimes be difficult?
18               MR. RIEMENSCHNEIDER:  Objection.  Go
19   ahead.
20         A.    It can be difficult, but it's one
21   piece of information that we use.  I don't mean
22   to quibble with that too much.
23         Q.    You are not quibbling.
24         A.    But I guess when you see someone, it
25   really is an individual type of a thing.  And I
0062
 1   confess to you that in medical school and taking
 2   histories, man, everything was extremely, in my
 3   mind at least, black and white.
 4               So, you know, I wanted gynecology to
 5   be a Betty Crocker cookbook, I admit it.  You
 6   are this, it must be this, you do this.
 7               And the older I get -- I'm 47 now --
 8   it doesn't always work that way.  So, for
 9   example, the average age of a woman going
10   through menopause is 51 and a half.
11               Well, in medical school I would've
12   held on to that like that's everything and you
13   can't be 53 and not be postmenopausal.  Well, I
14   have seen ladies that are 58 and they are still
15   having, you know, had their climacteric, where
16   they ended having cycles.  So I have learned a
17   lot -- not that I know a lot -- but I have been
18   exposed to a lot over time, so that's why I keep
19   bouncing off of you that whole thing with a
20   specific date.
21               The fact she is having bleeding, she
22   has not, other than with pregnancy, had a span
23   of 12 months or more of no bleeding.  By
24   definition, at least for me, she was
25   perimenopausal.
0063
 1         Q.    Simply because she has not had a
 2   span of no bleeding over a 12 month period and
 3   one uses the term perimenopausal, that is not an
 4   excuse for considering whether or not the
 5   bleeding is potentially related to some form of
 6   cancer; true?
 7         A.    True.
 8         Q.    Okay.  Now, when you saw her, did
 9   you -- you didn't do an exam, did you?
10         A.    I did not.
11         Q.    Tell me why.
12         A.    The brief answer is because I had
13   all the information that I needed and doing the
14   exam wasn't going to change my plan of
15   management.
16         Q.    Tell me what information you had at
17   hand that obviated an exam and caused you to
18   implement the medical management that you did,
19   please.
20         A.    Sure.  Her history on the second
21   page of my note towards the middle there, I'll
22   decipher it.
23         Q.    Sure.
24         A.    The key is, lost 20 pounds in three
25   months.  That screamed at me.  And then the
0064
 1   other is complaining of bloating and early
 2   satiety.
 3         Q.    What is early satiety?
 4         A.    That means you get full quicker.
 5   You go out on a holiday to eat your favorite
 6   meal at a restaurant and you used to eat the
 7   entire plate of food and now you can only eat
 8   half of it and man, I'm full, I can't eat
 9   anymore, that kind of thing.
10         Q.    Okay.
11         A.    So those two pieces of information,
12   again, for me, that said, oh my goodness, I
13   think this lady has a cancer.  Then it turned
14   into, well, what kind of cancer.
15               Then I looked at the, at least for
16   me, objective information and so that's why I
17   didn't have to rifle through a bunch of notes or
18   whatever.
19               I had the most recent ultrasound,
20   the 9th of December.  You see it there.  The max
21   number dimension on the uterus was 17.7.  And
22   then I tried to go back as far as I could again
23   to get an objective.  I didn't want to see an
24   eight or nine ultrasounds or what have you.
25               I went back to the one before
0065
 1   that -- which there may have been others, I
 2   admit -- but November of 2004, 12.7.
 3               So, you know, that piece of
 4   information by itself concerned me, but if you
 5   add that to the information of losing weight
 6   without trying to lose weight, I do remember
 7   that from her history, and the bloating and
 8   early satiety made me think, oh, and the fact
 9   that she had a negative endometrial biopsy.
10               And another objective finding here,
11   her ovaries weren't seen.  Typically if there is
12   something going on, like an ovarian cancer or
13   something, ovaries are enlarged or something
14   unusual about them and that didn't show up in
15   this case.
16               And then finally there was no free
17   fluid, which for epithelial tumors, fallopian
18   tube or ovarian cancers, not always, but a
19   suspicious finding if there is a bunch of free
20   fluid.
21               So getting back to that differential
22   diagnosis stuff that we talked about early on,
23   that's what made me, you know, putting all this
24   together, it made me think, oh my goodness, this
25   might be one of those really rare tumors in the
0066
 1   muscle of the uterus itself and I think it might
 2   be a sarcoma.  That's how I came to that.
 3         Q.    Fair enough.  You also noted that
 4   you were unable to access the record, I think it
 5   says, for October '05?
 6         A.    She had gone to the emergency room
 7   and had a CT scan and I'm not sure what was
 8   going on that day, but I couldn't get that
 9   result up.
10         Q.    Do you know why you were able to
11   access the November '04 ultrasound but not an
12   ultrasound between November and the ultrasound
13   that was done on -- what was the date of that --
14   on December 9th?
15         A.    I didn't look for it.  I didn't look
16   for it.  Did you mean to ask me about the CT
17   scan just then?
18               MR. RIEMENSCHNEIDER:  He already
19   said he went from the farthest one back he could
20   see to the most recent.  That's what he
21   testified to.
22         Q.    I guess, were you aware of the fact
23   that there was an ultrasound done between
24   November of '04 and December of '05?
25         A.    At the time of this visit, I think I
0067
 1   was, but I didn't look for it.
 2         Q.    You saw, obviously, a significant
 3   growth in the uterus between November of '04 and
 4   December of '05 comparing the ultrasounds?
 5         A.    In roughly a year, yes.
 6         Q.    As to the growth between November of
 7   '04 and May of '05, which also had shown a
 8   growth.
 9               If you had seen the patient back in
10   May of '05, with the growth, do you know what
11   you would have done at that time?
12               MR. RIEMENSCHNEIDER:  Objection.
13   Asked and answered, I think before, but go
14   ahead.
15               Are you saying she has the same
16   clinical findings in December?
17               MR. MISHKIND: No.
18         Q.    If you had seen her in May with the
19   ultrasound showing the growth between November
20   of '04 and the description that I gave to you
21   before in May of '05, do you know what you would
22   have done at that point in time?
23               MR. RIEMENSCHNEIDER:  Objection.
24         Q.    Go ahead.  You can answer the
25   question.  The objection is for the record.
0068
 1         A.    You guys speak a different language.
 2               I would have to be in that situation
 3   and I would have to have a history and I would
 4   have to be able to have the option of examining
 5   her.
 6         Q.    Okay.
 7         A.    So I can't answer that fairly.
 8         Q.    Fair enough.  That's all I can ask
 9   of you.
10               Your impression on your December
11   visit, tell me what your impression was, please.
12         A.    Right here. Clinically suspicious
13   findings for sarcoma.
14         Q.    And then your plan?
15         A.    Was to refer her to the oncology
16   folks, to the GYN oncology at CCF.
17         Q.    And below that, I'm not sure what
18   that says.
19         A.    Clearly written, it says options
20   reviewed.  Will pursue GYN oncology
21   consultation.  Will reorder CT if unable to
22   find.
23         Q.    And what CT?  The CT from October of
24   '05?
25         A.    Right.
0069
 1         Q.    What were you looking for on the CT
 2   that you could not clinically appreciate from
 3   the ultrasound?
 4         A.    The one thing that would have been
 5   useful -- it wouldn't have changed my
 6   recommendation or my management -- it was a
 7   curiosity, I admit -- to see some comment on the
 8   retroperitoneal lymph nodes.
 9               In gynecology, ultrasounds are the
10   most useful thing for us, in my opinion, in
11   regard to making a comment on ovaries or the
12   uterus, et cetera.  But with a CT scan, that's
13   not going to tell me an awful lot about the
14   uterus, per se, or even the ovaries to an
15   extent, but it will tell me about the lymph
16   nodes.  And if the lymph nodes were enlarged,
17   then that would have even heightened my
18   suspicion that something bad was going on for
19   her.
20         Q.    Even though you are not a GYN
21   oncologist, in a uterine sarcoma, do you
22   normally see on CAT scan lymph node involvement?
23         A.    I don't know that.  I don't know
24   that.
25         Q.    Do you know what the staging is for
0070
 1   uterine sarcomas?
 2         A.    No.  I probably knew it when I was
 3   taking my boards.
 4         Q.    Fair enough.
 5         A.    But I don't know even if there is
 6   one.  I imagine there is, but I don't know it.
 7         Q.    You don't know what the five year or
 8   ten year survival is for early stage uterine
 9   sarcoma versus late stage, Stage 1 versus Stage
10   4?
11         A.    I don't know that, but it's probably
12   horrible.
13         Q.    Do you know what Stage 1, what the
14   five year survival is on an early stage uterine
15   sarcoma?
16         A.    I would be guessing.
17               (Discussion off the record.)
18         Q.    November '99 and some notes circled
19   there, tell me about what that says and why it's
20   there.
21         A.    Just to have an idea of how far back
22   could I go and see an exam by someone I
23   respected.  I respect all the folks in my
24   department, but, you know, just to see what they
25   thought when they did an exam on her.  Did they
0071
 1   think she had a fibroid uterus then.
 2         Q.    So back in November of '99 there was
 3   an exam done by a C. Dawson?
 4         A.    Yes.
 5         Q.    Is that Dr. Dawson?
 6         A.    That's Nurse Practitioner Dawson.
 7         Q.    And at that time, what did Nurse
 8   Practitioner Dawson some, oh, six years earlier,
 9   what did you note her exam to show?
10         A.    Well, it was just a general exam and
11   she put uterus was normal size.
12         Q.    So that's the reason that you have
13   that note there?
14         A.    Just, you know, how far back could I
15   go where she had an exam that I could find.  But
16   then taking into account also, though -- and
17   this is the thing, she was obese when I saw her
18   and she was obese, I believe, then too.
19         Q.    On the left-hand side under your GYN
20   progress notes, you have number one, pelvic
21   mass.  Is that your handwriting?
22         A.    Where are we?  Oh, right here?
23         Q.    Correct.
24         A.    Yes.
25         Q.    Now, is the pelvic mass, is that
0072
 1   something that you determined based upon looking
 2   at the ultrasounds?  Or how did you mark down
 3   pelvic mass?
 4         A.    I put down pelvic mass because when
 5   we did our -- this is called an encounter --
 6   encounter progress notes in the past, you would
 7   list only what you knew.
 8               So, for example, putting down rule
 9   out cancer or something, that's not supposed to
10   be a proper diagnosis, but a proper diagnosis
11   would be, well, she has this big thing.  And
12   just putting fibroid uterus was a little too
13   vague, I thought, so I put something also vague,
14   pelvic mass.
15         Q.    Now, the notes have indicated that
16   she had a uterine leiomyoma NOS.  Is that
17   nonspecific?
18         A.    Not otherwise specified I think
19   that's what it means.
20         Q.    And uterine leiomyoma, that's a
21   fibroid tumor; is it not?
22         A.    Yes.
23         Q.    A leiomyoma could be benign,
24   depending on the histology of it; it can be
25   malignant as well; correct?
0073
 1         A.    Rarely, but yes.
 2         Q.    So uterine leiomyoma not otherwise
 3   specified doesn't necessarily tell you the
 4   histology of that?
 5         A.    It doesn't tell you that.
 6         Q.    Okay.  Did that help you in marking
 7   down pelvic mass?
 8         A.    I didn't even see it.
 9         Q.    Fair enough.  Then number two, it
10   looks like number two, you have status post
11   something.
12         A.    Clearly written, that's a G1P1.
13   That means she was pregnant once and had one
14   child.
15         Q.    Got it.
16         A.    Clearly written.
17         Q.    And then above that?
18         A.    No cervical dysplasia.
19         Q.    What significance was that?
20         A.    She had no history of abnormal PAP
21   smears or, you know, I was just being complete.
22   Actually this part, if you can kind of pretend
23   you don't see anything written on the page other
24   than the number one, this other stuff is just
25   standard.  When I meet a patient, there is some
0074
 1   basic questions I ask.
 2               So, pregnancies, put that on.  Have
 3   you had any abnormal PAP smears.  Any family
 4   history of any female cancers.  That's the thing
 5   you are about to ask me about probably. Negative
 6   family history for gynecologic cancer.  That's
 7   what is written there.
 8         Q.    And the endometrial biopsy, you had
 9   lower or midway on the left side of the page was
10   May of '05 and that was within normal limits?
11         A.    Correct.
12         Q.    And then below that, tell me what
13   you have written.
14         A.    By history, had CT at the Cleveland
15   Clinic Foundation, CCF, October '05 but unable
16   to access record.
17         Q.    Got it.  Okay.  Did you initiate a
18   referral then based upon your exam?
19         A.    I did.
20         Q.    And that was then to The Cleveland
21   Clinic?
22         A.    Yes.
23         Q.    Did you discuss with Lillian after
24   reviewing the ultrasounds, going through her
25   history, seizing on the weight loss, seizing on
0075
 1   the bloating and the early satiety --
 2         A.    Early satiety.
 3         Q.    After seizing on that information,
 4   did you share with her your concerns?
 5         A.    I did.
 6         Q.    Do you remember that conversation?
 7         A.    Not completely, but broadly I do.
 8         Q.    Do you recall having, in a general
 9   fashion, the interaction with her and explaining
10   your concerns?
11         A.    Yes.
12         Q.    And her reaction to the concerns?
13         A.    Somewhat.  I mean, I don't
14   remember -- you know, I remember that she didn't
15   become tearful and out of control or anything
16   like that.  But she, you know, in a level way
17   listened to me and I shared my concerns about
18   her.  It's a hard conversation.
19         Q.    Absolutely. Do you have any
20   recollection of her defining for you just how
21   long she had been having the irregular bleeding,
22   if at all, prior to January of 2005?
23         A.    I don't remember that specifically.
24   We did talk about her pain.
25         Q.    And when had she first had an onset
0076
 1   of pain?
 2         A.    I wrote in my note, symptoms of
 3   abdominal and pelvic pain since the middle of
 4   October and I didn't put '05, but that would
 5   have been, you know, the most recent October.
 6         Q.    If you had the bloating, the weight
 7   loss, the increase in the ultrasound findings
 8   and didn't have a complaint of abdominal pain,
 9   would that have caused you to consider or not to
10   consider sarcoma?
11               MR. RIEMENSCHNEIDER:  Objection.  Go
12   ahead.
13         Q.    Do you understand my question?
14         A.    The feature you took out was pain?
15         Q.    Correct.
16         A.    The first two that I told you about
17   before, the weight loss and the bloating and the
18   early satiety, that says probably some kind of
19   cancer to me, but it doesn't tell me what type
20   of cancer that is.
21               I mean, for example, with that
22   history alone, that could be bowel cancer or
23   something, which it would be a lot more common,
24   you know.  So it wouldn't direct me to sarcoma.
25         Q.    Well, was the abdominal pain a
0077
 1   critical fact in your considering that she had a
 2   uterine sarcoma?
 3         A.    Not critical.  A feature, but not a
 4   critical feature.
 5         Q.    Is it fair to say that your clinical
 6   suspicion and perhaps your differential
 7   diagnosis of uterine sarcoma and thus referral
 8   for evaluation wasn't predicated on the fact
 9   that she had pain since the middle of October?
10         A.    The key thing for me was the weight
11   loss and the early satiety and the bloating.
12         Q.    And also, in fairness to you, and
13   correct me if I am wrong, the increase in the
14   uterus comparing the ultrasounds?
15         A.    With normal or not abnormal, let's
16   say, ovaries seen and no free fluid, yes, that's
17   what steered me to a muscular type of a tumor in
18   the uterus.
19         Q.    So the things that really are
20   important on that differential is the increase
21   in the uterus from November of '04 to December
22   of '05, the weight loss, the bloating, the fact
23   that she also had had a negative endometrial
24   biopsy?
25         A.    Uh-huh.  Not in that order, but,
0078
 1   yes.
 2         Q.    And the pain, while it's
 3   interesting, isn't really a significant clinical
 4   factor?
 5         A.    No.
 6               MR. RIEMENSCHNEIDER:  Objection.
 7         Q.    Is that a fair statement?
 8               MR. RIEMENSCHNEIDER: I think he
 9   already told you what the pain was, but go
10   ahead.
11         A.    Well, it's a feature but not a, oh
12   my goodness, because you have pain, you must
13   have cancer.  I don't put it together that way.
14         Q.    Okay.  So you wouldn't say if the
15   patient has an increase or a rapid increase in
16   uterine size and pain, therefore you think
17   uterine sarcoma?
18         A.    No.  Actually, you know, pain is
19   something we see a lot of and what will happen
20   with fibroids under usual conditions is that it
21   outgrows its blood supply and there is an
22   ischemic change that happens, and so you get
23   this ache, this pain, you know, but that's from
24   the fibroid.
25         Q.    So you can actually have a uterine
0079
 1   sarcoma without there being pain associated with
 2   that phenomenon?
 3         A.    I think so.  I don't know, but I
 4   think so.
 5         Q.    Why don't we do this.  I would like
 6   to talk to my associate.  I'm probably three or
 7   four minutes from finishing.  I'll take probably
 8   a minute.
 9               (Recess had.)
10                     - - - - -
11              (Thereupon, STUFFER Deposition
12               Exhibit 1 was marked for
13               purposes of identification.)
14                    - - - - -
15         Q.    Doctor, just for purposes of
16   identification, Plaintiff's Exhibit 1, is this
17   two of the pages from your encounter on December
18   15, 2005 -- recognizing that there are some
19   other pages of printed forms, and then it looks
20   like there may be the referral form that you
21   used to send the patient to the Clinic -- but is
22   Exhibit 1 the nurse's notes, the encounter form
23   and your handwritten notes that we have been
24   talking about?
25         A.    The majority of that is my written
0080
 1   note.
 2         Q.    Now, on the first page of Exhibit 1,
 3   along the left-hand side, this is generated by
 4   the computer based upon the patient's clinical
 5   history?
 6         A.    Prior visits.
 7         Q.    So when you see the patient -- just
 8   to sort of walk through how this document
 9   develops -- Exhibit 1, along the left-hand side,
10   we have her stamp and the date of her visit;
11   then under GYN progress sheet, we would have
12   areas for vital signs to be filled in, and then
13   her age would be filled in by the computer, 56
14   years, three months, and then her primary
15   doctor's name, and then the problem which would
16   go from --
17         A.    The dermatofibroma.
18         Q.    All the way down to --
19         A.    Hemorrhage not otherwise specified.
20         Q.    And all of this information then
21   would be information based upon her clinical
22   history and treatment that had been provided
23   prior to your seeing her; correct?
24         A.    Yes.
25         Q.    And then the next thing that would
0081
 1   happen is your medical assistant would mark down
 2   the reason for the visit, would take the vital
 3   signs, and then you are presented with this form
 4   with whatever information has now been filled
 5   out; is that a fair sort of chronology?
 6         A.    Yes.
 7         Q.    Now, a patient who is in a female
 8   climacteric state -- I may be mispronouncing
 9   that -- that is by definition postmenopausal;
10   correct?
11         A.    Well, it varies by who actually
12   fills out this form.  I mean, climacteric in and
13   of itself means what you said.
14         Q.    Postmenopausal?
15         A.    It means at the time of a last
16   menses.
17         Q.    But by definition -- and I
18   understand that you are not the one that was
19   responsible for --
20         A.    Right.  It could have been a
21   nongynecologist that wrote that done.
22         Q.    But in any event, whether it was a
23   nongynecologist or whoever it was, it would have
24   been information set forth by someone prior to
25   Lillian being seen by you or even by the medical
0082
 1   assistant on that date; correct?
 2         A.    Someone put that there.
 3         Q.    Okay.  And whether it's accurate or
 4   not, what this indicates as we look at the
 5   record when this form is prepared and waiting
 6   for Lillian to be seen, this indicates that the
 7   patient was postmenopausal, correct, not
 8   perimenopausal; true?  Whether it's accurate or
 9   not, that's what it says?
10         A.    That's the thing.  It is listed
11   there.
12         Q.    Okay.  And I'm not quibbling with
13   you, for whatever reason, but it does indicate
14   on the document that when we look at what the
15   definition of this state, climacteric, female
16   climacteric, or climacteric, that means
17   postmenopausal; correct?
18         A.    It means last menses.  Last menses,
19   your climacteric is when you have your last
20   cycle.  It's not synonymous with postmenopausal.
21         Q.    Well, where it says female
22   climacteric state, what is that telling you?
23         A.    In fact, I didn't see this until you
24   are pointing it out to me now, but that phrase
25   doesn't say a lot of anything to me.
0083
 1         Q.    Is it your testimony under oath that
 2   that is or is not used as a phrase to define a
 3   patient who is more than one year since her last
 4   menses?
 5         A.    I don't know that.  Some people
 6   might use it to mean something like that.
 7         Q.    And the reason I ask that is because
 8   earlier on in the deposition, I think you used
 9   that term when I was asking you about
10   perimenopausal and postmenopausal, I think you
11   did use the term climacteric?
12         A.    Right.
13         Q.    So is it fair to say you used the
14   term female in a climacteric state to mean a
15   patient who is postmenopausal?
16         A.    I would use that to note that that
17   patient had had her last cycle.
18         Q.    More than one year previously?
19         A.    No.  That she had just had her -- I
20   have to qualify and say, when I use the term,
21   that means, the climacteric means that's the
22   last cycle that that patient had.
23               You could make that comment, to go
24   further, say that, well, my last cycle was eight
25   months ago or something.  Well, by the
0084
 1   definitions we used before for postmenopausal
 2   that doesn't make her postmenopausal.
 3               Another way of looking at it, that's
 4   the opposite term to menarche.  Menarche is when
 5   a young lady has her first period, her first
 6   cycle, her first menses.
 7         Q.    All right.  In any event, whatever
 8   the definition and whatever the significance of
 9   this, we will leave it to perhaps someone else
10   to interpret.
11         A.    Someone that has a dictionary or
12   something, yeah.
13         Q.    That term and the notation of
14   postmenopausal checked by the --
15         A.    Medical assistant.
16         Q.    -- medical assistant would have been
17   preprinted and checked by her before you asked
18   the patient any questions; correct?
19         A.    That is correct.  That is completely
20   correct.
21         Q.    Now, can we agree that in a
22   perimenopausal woman who has a thickened
23   endometrium, that has increasing uterine
24   fibroids, that is obese, that has abnormal
25   uterine bleeding, that that description may or
0085
 1   may not be consistent with a malignancy?
 2         A.    It's possible.
 3         Q.    That would be an accurate statement;
 4   it may or may not be consistent with a
 5   malignancy?
 6         A.    That's possible.  I mean, that's a
 7   possible presentation of a malignancy, I
 8   suppose.
 9         Q.    And certainly in terms of a
10   differential, that would be something that you
11   would consider -- not necessarily arrive at a
12   definitive diagnosis -- but if you have a
13   patient who is perimenopausal, with a thickened
14   endometrium, with increasing uterine fibroids,
15   that's obese, that has abnormal uterine
16   bleeding --
17         A.    When you say increasing uterine
18   fibroid, you mean increasing uterine fibroid
19   size?
20         Q.    That's correct.
21         A.    That's in the realm of possibility,
22   yes.
23         Q.    And you would include that somewhere
24   in that differential diagnosis; true?
25         A.    Somewhere in there.
0086
 1         Q.    Okay.  Now, in a patient who is
 2   postmenopausal, with or without thickened
 3   endometrium, with uterine fibroids, obese, with
 4   abnormal uterine bleeding, can we agree that
 5   that description from a differential standpoint
 6   is malignancy until proven otherwise?
 7         A.    Right.  The key in that being
 8   postmenopausal, any kind of bleeding.
 9         Q.    Got it.
10         A.    First thought, rule out cancer.
11         Q.    In a perimenopausal obese female?
12         A.    Endometrial cancer, with what I just
13   said.  Endometrial cancer is that first thought
14   to be complete with what I first said.
15         Q.    In a perimenopausal obese woman with
16   abnormal uterine bleeding, with uterine
17   fibroids, is the institution of progestin or
18   Provera, is that within the standard of care?
19         A.    That's a reasonable way to address
20   the problem.
21         Q.    Now, the reason you do that is that
22   you hope that the progestin or the Provera will
23   help with the abnormal uterine bleeding;
24   correct?
25         A.    Control it.  That's a miserable
0087
 1   thing for a patient.  They don't want to bleed.
 2   That's why they come to see you.
 3         Q.    If the patient does not respond to a
 4   progestin in a patient who is defined as
 5   perimenopausal, what is the standard of care in
 6   terms of how long you continue the patient on
 7   the progestin?
 8               MR. RIEMENSCHNEIDER:  Just note an
 9   objection as to the expert opinions.  You are
10   asking him about standard of care issues.  It's
11   a hypothetical without seeing the records and so
12   on and so forth.
13               MR. MISHKIND:  Your objection is
14   noted, Dirk.  Go ahead.
15         A.    There is no -- my opinion, I don't
16   believe there is a typical amount of time that
17   everyone uses before they say the drug therapy
18   has failed and now we need to look at other
19   things.
20               I think a lot of folks would -- I
21   pick three months roughly, but that's the way I
22   do it.  Some people might be a little less, some
23   people a little more.  It varies on the age of
24   the patient and the clinical circumstances.
25         Q.    When you saw this patient in
0088
 1   December, she was still on the progestin?
 2         A.    You know, I don't remember that.
 3   It's listed down here as one of her medications.
 4   But current medications that a patient has
 5   listed, that doesn't mean that she has actually
 6   been taking it.  Maybe she stopped it a month
 7   ago or something, I don't know that part.  I
 8   don't recall that part.
 9         Q.    It doesn't say anything in here
10   about the progestin having been stopped a month
11   earlier, does it?
12         A.    It doesn't on this paper, but I can
13   tell you, you know, back when we did encounters
14   this way -- we do them a little bit differently
15   now -- the medications that are listed are the
16   prescribed medications that a patient has, but
17   whether they are compliant and take it or not,
18   isn't always counted on.
19         Q.    Doctor, do you have any evidence in
20   this case at all to suggest that this patient
21   who had been on progestin was no longer taking
22   the progestin or someone had told her to stop
23   taking the progestin prior to December of 2005?
24         A.    I don't have anything I can point to
25   to prove that one way or the other.
0089
 1         Q.    If a patient who is presumed to be
 2   perimenopausal and is on progestin but yet
 3   continues to bleed, is that of clinical concern
 4   to you?
 5         A.    Yes.
 6         Q.    And what does that suggest to you in
 7   a patient who is on progestin, perimenopausal,
 8   but continues to bleed?
 9         A.    I think we talked about this before.
10               MR. RIEMENSCHNEIDER:  We have.
11         A.    I might be wrong.  But there is a
12   difference between a hormonal etiology for the
13   bleeding -- I call that dysfunctional uterine
14   bleeding -- versus abnormal uterine bleeding;
15   abnormal uterine bleeding being related to an
16   anatomic etiology.
17         Q.    If the patient is on progestin -- to
18   make sure we are clear, because I am not.
19         A.    Okay.
20         Q.    And I'm not sure we did
21   specifically, if the patient is on progestin for
22   four or five months and continues to have
23   abnormal uterine bleeding, is that suggestive of
24   an anatomic problem or is that suggestive of a
25   hormonal problem?
0090
 1         A.    If the patient is compliant with the
 2   medication -- we will presume that -- and still
 3   has bleeding, my thought would be -- this is
 4   after adjusting doses and that kind of thing --
 5   that there was possibly some anatomic reason for
 6   the bleeding.
 7         Q.    In your clinical experience, how
 8   long would you in a post -- in a perimenopausal
 9   patient who is obese, who has thickened uterine
10   fibroids, obese, how long do you believe that it
11   would be reasonable and prudent to have the
12   patient on progestin where the patient continues
13   to have abnormal uterine bleeding without doing
14   something else?
15               MR. RIEMENSCHNEIDER:  Objection.
16   You just asked that question.
17               MR. MISHKIND:  No, I didn't.
18               MR. RIEMENSCHNEIDER:  Yes, you did.
19               MR. MISHKIND:  Dirk, your objection
20   is noted.
21               MR. RIEMENSCHNEIDER: You know what,
22   I'm going to prove it to you because I'll have
23   her read it back.
24               MR. MISHKIND: No, you are not going
25   to do that.  It's my deposition.
0091
 1               MR. RIEMENSCHNEIDER:  Then I'll
 2   instruct him not to answer.
 3               MR. MISHKIND:  Wait a second.
 4               MR. RIEMENSCHNEIDER:  Don't start
 5   raising your voice with me.
 6               MR. MISHKIND:  I did raise my voice
 7   about two octaves.  But I'm asking a question
 8   and let me redefine the question and then we
 9   will have whatever discussion you want to have,
10   Mr. Riemenschneider.
11               I asked him --
12         Q.    If you are treating a patient that
13   has abnormal uterine bleeding that is
14   perimenopausal, that has uterine fibroids, and
15   you personally have prescribed progestin to the
16   patient, yet the patient continues to bleed, in
17   your practice, how long do you continue that
18   patient on the progestin before you personally
19   look to see whether or not it is something --
20   because it's not responding, the bleeding is not
21   stopping -- how long do you continue the
22   progestin?
23               MR. RIEMENSCHNEIDER:  Objection.
24   Asked and answered.  I think you phrased it a
25   little different there, but you asked standard
0092
 1   of care issues of him before.  Go ahead and
 2   answer the question.
 3         A.    If I have an advantage of an
 4   endometrial biopsy that is normal or within
 5   normal limits, then the amount of time for me
 6   realistically will be somewhere between three to
 7   possibly six months.
 8               Because what I do is start on one of
 9   the progestins, medroxiyprogesterone  acetate --
10   that's Provera -- and potentially change it to
11   norethindrone acetate -- that's a different type
12   of progestin -- or consider another drug
13   therapy.  So I hope that answers your question.
14         Q.    It does.  If the patient is
15   postmenopausal and has uterine bleeding, is the
16   use of progestin within the standard of care?
17         A.    If I have the advantage of an
18   endometrial biopsy that is negative, then that's
19   a reasonable thing to do, absolutely.
20         Q.    In a patient who is postmenopausal,
21   that has a thickened endometrium, by ultrasound
22   has increasing uterine fibroids, and has
23   irregular uterine bleeding, is it within the
24   standard of care to give that patient progestin?
25         A.    In my opinion, okay -- I don't know
0093
 1   if I can speak to the standard of care for every
 2   gynecologist in the country -- but I think
 3   that's a reasonable thing to do.  I'll stop at
 4   that.
 5         Q.    Is the length of time that one
 6   would --
 7               (Pager interruption.)
 8         Q.    In a postmenopausal patient, same
 9   characteristics, that you put the patient on
10   progestin, is there a period of time that you
11   would allow the patient to stay on progestin,
12   postmenopausal?  Is it shorter than in a
13   perimenopausal patient?
14               MR. RIEMENSCHNEIDER:  Objection.  Go
15   ahead.
16         A.    The same clinical picture; the
17   difference only perimenopausal or
18   postmenopausal?
19         Q.    Yes, doctor.
20         A.    It depends on kind of what that
21   patient's willing to do.  So I talk about
22   options to folks.
23               Even with Ms. Dailey, with Ms.
24   Dailey, if you look at my plan, I put options
25   reviewed, so I wanted -- and I pushed her -- I
0094
 1   wanted her to get seen by a GYN oncologist, but
 2   I talked about other ways we may have approached
 3   that.
 4               So, likewise, with what you are
 5   saying to me, I individualize it to that
 6   patient.  I'm not skirting you, that's the
 7   truth.
 8               So there is not, you know, three
 9   months and not a day longer with the
10   postmenopausal, six months and not a minute
11   longer with a peri, I can't get that specific
12   with you.
13         Q.    Is it less acceptable to continue a
14   patient on progestin that is postmenopausal that
15   continues to have abnormal bleeding as compared
16   to that same patient that is perimenopausal?
17               MR. RIEMENSCHNEIDER:  Objection.  Go
18   ahead.
19         A.    I think that most folks would look
20   more, have more questions, more interest in a
21   postmenopausal patient versus a perimenopausal,
22   but I can't, you know, I can't make a blanket
23   statement about that.
24         Q.    Okay.
25         A.    Again, I prefaced all those answers,
0095
 1   I know I have a normal endometrial biopsy.
 2         Q.    And with a normal endometrial
 3   biopsy, if you have a postmenopausal woman that
 4   is on progestin but continues to bleed, what is
 5   within your differential that is different than
 6   a perimenopausal patient that has that normal
 7   endometrial biopsy that is on progestin but
 8   continues to bleed?
 9               MR. RIEMENSCHNEIDER:  Objection.  Go
10   ahead.
11         A.    Not an awful lot is different,
12   because my thought with each of them leans more
13   towards, you know, if things aren't working with
14   medical therapy, then, you know, there's a polyp
15   or something like that that's contributing to
16   this bleeding.  I have had patients like that.
17         Q.    You talked about the options.  Was
18   your primary suggestion to her that she be seen
19   by a GYN oncologist because of your concern
20   about potential for sarcoma?
21         A.    Absolutely.
22         Q.    And she followed through on your --
23         A.    She did.  And I think she actually
24   had a sarcoma.
25         Q.    Now, you would have been
0096
 1   responsible, would you not, to have provided
 2   information to the Clinic as it relates to the
 3   patient's clinical history so that when she is
 4   seen at the Clinic, you really would have been
 5   sort of the last connection from Kaiser to the
 6   Clinic by way of history?
 7         A.    Right.  Well, I would be the last
 8   written piece of information that they would
 9   see.  I have seen the patient.  I would make out
10   the referral, but they would have access to all
11   of her prior records too.
12         Q.    Sure, okay.
13               In terms of your visit, outside of
14   the records, is there anything that you recall
15   in terms of your encounter that we haven't
16   talked about during the deposition today?
17   Anything in terms of what you said to her or how
18   she responded?
19         A.    I can't recall anything else.
20         Q.    Okay.  And are there any symptoms or
21   clinical findings that you feel are important to
22   talk about in terms of why you arrived at the
23   diagnosis that you did without doing an exam on
24   that day, why you didn't feel that an exam was
25   necessary beyond what we have already talked
0097
 1   about?
 2         A.    Nothing beyond what we have talked
 3   about.
 4         Q.    Have I given you a fair opportunity
 5   to describe the clinical history and your
 6   findings with Lillian in this case?
 7               MR. RIEMENSCHNEIDER:  Objection.  Go
 8   ahead.
 9         A.    Yes.  I mean, what do I compare it
10   against?
11         Q.    It's okay.
12         A.    That's okay.
13         Q.    I don't want to be accused by anyone
14   of not being fair and not giving you an
15   opportunity to explain things; that's why I'm
16   asking you, have I given you an opportunity to
17   explain things and perhaps even qualify certain
18   things as we are talking about perimenopausal
19   versus postmenopausal?
20         A.    We had an open discussion.
21         Q.    And I have been fair to you?
22               MR. RIEMENSCHNEIDER:  Objection.
23         A.    Yes.
24               MR. MISHKIND: Thank you.  No further
25   questions.
0098
 1               MR. RIEMENSCHNEIDER:  We'll reserve
 2   signature.
 3                      - - - - -
 4         (Deposition concluded at 1:30 p.m.)
 5              (Signature not waived.)
 6                      - - - - -
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10   
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
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23   
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25   
0099
 1                       AFFIDAVIT
 2         I have read the foregoing transcript from
 3   page 1 through 97 and note the following
 4   corrections:
 5   PAGE  LINE     REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17   
                          PHILLIP SHUFFER, M.D.
18   
19   
20     Subscribed and sworn to before me this
21   day of          , 2008.
22   
23   Notary Public
24   
25   My commission expires          .
0100
 1                     CERTIFICATE
 2   
 3   State of Ohio,
 4                      SS:
 5   County of Cuyahoga.
 6   
 7   
 8         I, Vivian L. Gordon, a Notary Public
     within and for the State of Ohio, duly
 9   commissioned and qualified, do hereby certify
     that the within named PHILLIP SHUFFER, M.D. was
10   by me first duly sworn to testify to the truth,
     the whole truth and nothing but the truth in the
11   cause aforesaid; that the testimony as above set
     forth was by me reduced to stenotypy, afterwards
12   transcribed, and that the foregoing is a true
     and correct transcription of the testimony.
13   
           I do further certify that this deposition
14   was taken at the time and place specified and
     was completed without adjournment; that I am not
15   a relative or attorney for either party or
     otherwise interested in the event of this
16   action.  I am not, nor is the court reporting
     firm with which I am affiliated, under a
17   contract as defined in Civil Rule 28 (D).
18         IN WITNESS WHEREOF, I have hereunto set my
     hand and affixed my seal of office at Cleveland,
19   Ohio, on this 5th day of May, 2008.
20   
21   
22   
                     Vivian L. Gordon, Notary Public
23                   Within and for the State of Ohio
24   My commission expires June 8, 2009.
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 1                      INDEX
 2          DEPOSITION OF PHILLIP SHUFFER, M.D.
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 4     BY MR. MISHKIND:              3        7
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 6                       EXHIBITS
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 8     Exhibit 1 was marked          79       12
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