0001 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 MATTHEW CHASE WAGONER, 4 etc., et al., 5 Plaintiffs, JUDGE MICHAEL P. DONNELLY 6 -vs- CASE NO. 497179 7 MARK R. EVANS, M.D., et al., 8 Defendants. 9 10 - - - - 11 Deposition of CARLOS J. SIVIT, M.D., taken as 12 if upon cross-examination before Lynn D. 13 Thompson, a Notary Public within and for the 14 State of Ohio, at Rainbow Babies & 15 Children's Hospital, 11100 Euclid Avenue, 16 Cleveland, Ohio, at 4:40 p.m. on Monday, July 17, 17 2006, pursuant to notice and/or stipulations of 18 counsel, on behalf of the Plaintiffs in this 19 cause. 20 - - - - 21 MEHLER & HAGESTROM Court Reporters 22 CLEVELAND AKRON 23 1750 Midland Building 1015 Key Building Cleveland, Ohio 44115 Akron, Ohio 44308 24 216.621.4984 330.535.7300 FAX 621.0050 FAX 535.0050 25 800.822.0650 800.562.7100 0002 1 APPEARANCES: 2 Pamela Pantages, Esq. Becker & Mishkind, Co., L.P.A. 3 Becker Haynes Building 134 Middle Avenue 4 Elyria, Ohio 44035 (440) 323-7070, 5 On behalf of the Plaintiffs; 6 John T. Bulloch, Esq. 7 Moscarino & Treu 630 Hanna Building 8 1422 Euclid Avenue Cleveland, Ohio 44115 9 (216) 621-1000, 10 On behalf of the Defendant Fairview General Hospital. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 W I T N E S S I N D E X 2 PAGE 3 CROSS-EXAMINATION CARLOS J. SIVIT, M.D. 4 BY MS. PANTAGES 6 5 E X H I B I T I N D E X 6 EXHIBIT PAGE 7 Plaintiffs' Sivit Deposition Exhibit 8 1, two-page 5-17-04 Austria letter to Sivit 5 9 Plaintiffs' Sivit Deposition Exhibit 10 2, one-page 5-30-06 Bulloch letter to Sivit 5 11 Plaintiffs' Sivit Deposition Exhibit 12 3, 49-page Curriculum Vitae of Carlos J. Sivit, M.D., C.P.E., 5 13 Plaintiffs' Sivit Deposition Exhibit 14 4, two-page 9-20-04 Sivit letter to Bulloch 5 15 Plaintiffs' Sivit Deposition Exhibit 16 5, one-page Fairview x-ray interpretation 47 17 Plaintiffs' Sivit Deposition Exhibit 18 6, one-page Fairview x-ray interpretation 60 19 Plaintiffs' Sivit Deposition Exhibit 20 7, one-page Fairview x-ray interpretation 103 21 Plaintiffs' Sivit Deposition Exhibit 22 8, 8-24-99 Parma Community Hospital x-ray 109 23 Plaintiffs' Sivit Deposition Exhibit 24 9, 8-24-99 Fairview Hospital x-ray 110 25 0004 1 E X H I B I T I N D E X C O N T I N U E D 2 EXHIBIT PAGE 3 Plaintiffs' Sivit Deposition Exhibit 10, 8-25-99 Fairview Hospital x-ray 110 4 Plaintiffs' Sivit Deposition Exhibit 5 11, 8-25-99 Fairview Hospital x-ray 110 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0005 1 - - - - 2 (Thereupon, Plaintiffs' Sivit Deposition 3 Exhibit 1, two-page 5-17-04 Austria letter to 4 Sivit, was marked for purposes of 5 identification.) 6 - - - - 7 (Thereupon, Plaintiffs' Sivit Deposition 8 Exhibit 2, one-page 5-30-06 Bulloch letter to 9 Sivit, was marked for purposes of 10 identification.) 11 - - - - 12 (Thereupon, Plaintiffs' Sivit Deposition 13 Exhibit 3, 49-page Curriculum Vitae of Carlos 14 J. Sivit, M.D., C.P.E., was marked for 15 purposes of identification.) 16 - - - - 17 (Thereupon, Plaintiffs' Sivit Deposition 18 Exhibit 4, two-page 9-20-04 Sivit letter to 19 Bulloch, was marked for purposes of 20 identification.) 21 - - - - 22 23 24 25 0006 1 CARLOS J. SIVIT, M.D., of lawful age, called 2 by the Plaintiffs for the purpose of 3 cross-examination, as provided by the Rules of 4 Civil Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as 6 follows: 7 CROSS-EXAMINATION OF CARLOS J. SIVIT, M.D. 8 BY MS. PANTAGES: 9 Q. Could you state your name for the record, please. 10 A. Carlos Jesus Sivit. 11 Q. Last name is S-i-v-i-t? 12 A. Yes. 13 Q. Dr. Sivit, where are we today? 14 A. We are at Rainbow Babies & Children's Hospital in 15 Cleveland, Ohio. 16 Q. In the radiology department? 17 A. In the radiology department. 18 Q. Pediatric radiology department, correct? 19 A. It's actually one combined department. Adult and 20 pediatrics is side by side. 21 Q. And are you an employee of Rainbow Babies & 22 Children's, of UH, some professional 23 organization? 24 A. I'm an employee of University Radiologists of 25 Cleveland, which is a radiology group. 0007 1 Q. So you are an independent contractor with Rainbow 2 Babies & Children's; is that correct? 3 A. With University Hospitals of Cleveland, including 4 Rainbow Babies & Children's. We are a 50-person 5 group. 6 Q. We're here to take your deposition today. You've 7 been identified as a defense expert witness in 8 this case, so I am here to talk to you a little 9 bit about your background and your opinions in 10 this case, those kinds of things. 11 Have you had your deposition taken before? 12 A. Yes. 13 Q. On how many other occasions have you had your 14 deposition taken before? 15 A. I don't know the precise number. Approximately 16 15 to 20 times. 17 Q. And was that as an expert witness or in some 18 other capacity? 19 A. As an expert witness and also in several criminal 20 trials, child abuse trials. 21 Q. Approximately how many depositions have you given 22 as an expert witness? 23 A. The majority. I've only done several criminal 24 trials. So I would say probably around at least 25 15. 0008 1 Q. 15 as an expert witness? 2 A. Yes. 3 Q. And of the 15 depositions that you've given as an 4 expert witness, how many of those have been on 5 behalf of the patient and how many of those have 6 been on behalf of either a hospital or a 7 physician? 8 A. It's probably been a nearly 50/50 split. I don't 9 have the data in front of me. I haven't kept 10 that type of information, but it's about 50/50. 11 Q. All right. For our purposes today, I'm going to 12 be asking you questions. If you don't understand 13 my question as I phrase it, please let me know, 14 and I'll be happy to rephrase it. All right? 15 A. All right. 16 Q. If you answer my question the way that I phrased 17 it without asking me to rephrase it, I'm going to 18 presume that you understood the question the way 19 that I initially phrased it and gave me your best 20 possible response. Okay? 21 A. Very good. 22 Q. If you need to stop the deposition for any 23 reason, let me know, and I'll be happy to 24 accommodate you. 25 And it's important that you verbalize all 0009 1 your responses because our court reporter is 2 writing down everything that you say and I say 3 and it's difficult to transcribe gestures or some 4 other nonverbal responses. Okay? 5 A. Yes. 6 Q. Thank you. 7 Dr. Sivit, I'm going to hand you what I've 8 marked as Plaintiffs' Exhibit No. 3 and ask you 9 if that is a complete and current copy of your 10 curriculum vitae? 11 A. It is. 12 Q. Up in the upper right-hand corner, it says 13 "Revised 7/16/06." That means you revised it 14 yesterday? 15 A. Yes. 16 Q. I'm presuming that nothing important has happened 17 to you professionally between yesterday and 18 today? 19 A. That would be correct. 20 MS. PANTAGES: And I just want to 21 make a record. I don't mean to be 22 difficult, but I've been requesting the 23 copies of defense experts for well over a 24 month now, and I have not -- I've just seen 25 this for the first time now. I haven't 0010 1 seen it yet. And it is a total of 49 2 pages, and I'm not going to take up the 3 time to go through and review it in the way 4 that I typically would before a deposition. 5 Q. We are here to talk about the chest x-rays of 6 Matthew Wagoner. Is that correct? 7 A. Yes. 8 Q. And it's my impression from your report that we 9 are going to be describing -- or I'm sorry. We 10 are going to be focusing on the issue of 11 pneumothorax and pneumomediastinum. Is that 12 correct? 13 A. We can focus on whatever questions you have for 14 me. 15 Q. All right. You have a number of publications 16 here. Have you published any articles or any 17 textbook chapters or done any poster 18 presentations or given any lectures or seminars 19 on issues that you think might be relative to 20 Matthew Wagoner's case? 21 MR. BULLOCH: And, doctor, feel 22 free to take a look at your CV. We don't 23 expect you to remember everything. 24 A. Yes, I have. 25 Q. All right. Can you point those out to me in your 0011 1 CV? 2 A. Yes. And these would be publications or 3 presentations that have to do either with 4 neonatal imaging or with pathology that includes 5 pneumothorax and pneumomediastinum. 6 Q. All right. Can you show those to me, where they 7 appear -- 8 A. I can. If you'll give me one minute. I've been 9 asked this before so I actually have a summary in 10 my office that would expedite things if you -- 11 Q. Great. Thank you. 12 A. They're just some items of the categories. 13 That's all. 14 Q. Okay. 15 A. I mean you're welcome to have this or if you want 16 me to answer the question with this. 17 Q. Why don't you go ahead and -- 18 A. In fact, I can show it to you while we're doing 19 this. 20 All right. So PRP is peer-reviewed 21 publications. There's different categories. So 22 peer-reviewed publications. 23 Q. On Page 14 of the CV? 24 A. No. Articles No. 10, 11, 12 and 57. 25 So 10 is "Efficacy of chest radiography in 0012 1 pediatric intensive care." 2 11 is "Routine chest radiographs in pediatric 3 intensive care: a prospective study." 4 12 is "Chest injury in children with blunt 5 abdominal trauma; the role of CT." So this is 6 obviously trauma related. This was not trauma, 7 but it includes pneumothorax and 8 pneumomediastinum. 9 57 is "Imaging of blunt pediatric thoracic 10 trauma." It includes pneumothoraces and 11 pneumomediastinums. 12 This is -- IP stands for invited 13 publications. So Article 3, "The imaging of 14 pediatric thoracic trauma." 15 BC is book chapters. No. 3, this is 16 "Diagnostic Imaging" in "Pediatric Trauma Care," 17 which includes the category of conditions we're 18 talking about. 19 53 is "Diagnostic Imaging" in 20 "Neonatal-Perinatal Medicine: Diseases of the 21 fetus and infant." Again, it includes those 22 conditions. 23 Q. Is there a reason why that number has an asterisk 24 by it? 25 A. Because it's the most recent one and it's 0013 1 specifically neonatal imaging. 2 Then let's see. 3 If we continue here, there are departmental 4 lectures. I give lectures for -- I'm a lecturer 5 for a pulmonary fellows lecture series on a 6 yearly basis, and those lectures are on how to 7 read a chest radiograph and includes discussion 8 on pneumothoraces and pneumomediastinums, how to 9 pick them up, how to differentiate them. 10 I do the same thing for pediatric residents 11 at Rainbow from 2003 on. So those internal 12 lectures are -- include those such topics. 13 And then if we go to invited lectures, and 14 these are just the number that you would find on 15 a CV. So anything that relates to thoracic 16 trauma would include discussion of pneumothorax 17 and pneumomediastinum. 18 So this lecture in Hawaii included thoracic 19 trauma. So No. 28. 20 No. 34, visiting professor at Mass General 21 was also in pediatric thoracoabdominal trauma. 22 41 was a course in Las Vegas that included 23 imaging thoracoabdominal trauma. Included 24 thoracic trauma. 25 Pediatric chest trauma at the American 0014 1 Society of Emergency Radiology, March, 2001. 2 This was an invited lecture in St. Louis. 3 Imaging -- excuse me. That is -- so that one is 4 not correct. 51 is out. I misread that. 5 And then the last category would be 6 international talks. This one in Chile, that 7 included pediatric thoracic trauma. And this one 8 in Sweden also included pediatric thoracic 9 trauma. 10 So, again, even though the topic is not quite 11 the same, it does have a significant overlap that 12 includes discussion on how to diagnose and make 13 imaging findings associated with thoracic air 14 leak, including pneumothorax and 15 pneumomediastinum. 16 Q. So of the peer-reviewed publications -- because 17 I'm not sure that you said all the numbers so I'm 18 going to read these for the record. 19 The peer-reviewed publications were 12, 57, 20 10 and 11. 21 Invited publications, No. 3. 22 BC stands for? 23 A. Book chapters. 24 Q. Book chapters is 3 and 53, which is asterisked 25 because it's the most recent one. 0015 1 And in terms of lectures, the invited 2 lectures are Nos. 28, 34, 41 and 42. And the 3 international invited lectures are Nos. 3 and 4. 4 Is that correct? 5 MR. BULLOCH: Just for the record, 6 there's two internal lectures that he also 7 discussed. 8 A. Right. And those were not numbered since they 9 were not numbered on the CV. 10 Q. All right. And again for the record, since I 11 haven't had -- I don't even know what these 12 numbers refer to. I'm going to reserve my right 13 to reopen this deposition in the event that once 14 I do have an opportunity to go back, I'd like to 15 have an opportunity to talk to you about your 16 publications. 17 MR. BULLOCH: And just for the 18 record, we're going to object to that on 19 the basis we believe the CV of Dr. Sivit 20 was timely provided and the fact that 21 counsel is not ready to go forward with it 22 despite being given the opportunity to look 23 at the CV in any detail or length of time 24 that she needs to do so today, she's 25 refused to do so. 0016 1 MS. PANTAGES: Well, no, I haven't 2 refused to do so. I left my office at 3:30 3 today and was standing by the fax machine 4 because of the representation that your 5 secretary was faxing it to me, and I 6 couldn't wait any longer because I didn't 7 want to be late for this deposition. 8 And it's a 49-page CV, and the 9 doctor is sitting here, and I'm not going 10 to take the time to go through a 49-page CV 11 and take up this physician's time. 12 MR. BULLOCH: Again, that's your 13 option. 14 Q. Well, but you're charging me for this time, 15 Dr. Sivit, are you not? 16 A. Yes. 17 Q. So you would be charging me for the time that I 18 would be taking to review your 49-page CV, would 19 you not? 20 A. That would probably be correct if I am in the 21 room I would assume. 22 Q. While we're on that topic, what is the time 23 that -- your charge for your deposition time? 24 A. My charge is $400 an hour. 25 Q. And you say that in such a way that that leads me 0017 1 to believe that's a global time. That time for 2 reviewing cases, drafting reports, preparing for 3 depositions, attending depositions, is it all 4 $400 an hour? 5 A. It is the same charge regardless. My usual 6 charge for a deposition, which I waived in this 7 case because of the -- we changed the timing 8 and -- I usually charge a four-hour minimum 9 because I usually have to take a day off from 10 work. Back in June, I had sent a list of half 11 days, and somehow that didn't get communicated 12 back to me in time that this was scheduled today. 13 So since I'm doing it after I've actually 14 finished work, I'm just charging by the hour. 15 But normally, I would charge a four-hour minimum. 16 Q. Thank you. 17 Trial appearance, do you charge a different 18 rate for trial appearance? 19 A. As with deposition, I charge at least a half-day 20 minimum. If it's local and I can work half a 21 day, then that's what I would charge. Otherwise, 22 if it goes beyond a half day, then I would charge 23 for my time, including travel time. 24 Q. All right. 25 And that's -- if it's a half day, recognizing 0018 1 the four-hour minimum, that's $400 an hour as 2 well? 3 A. That is correct. 4 Q. Going back to the itemization of the relevant 5 publications and other events on your CV, with 6 respect to the lectures that we talked about, are 7 there notes or PowerPoint presentations or a 8 syllabus that you lecture from relevant to the 9 topic that we're talking about today? 10 A. Well, all the lectures are in PowerPoint. 11 However, these are lectures that I've given over 12 a ten-year period. So many times, what I do is I 13 either -- lectures evolve, and I refine them. Or 14 if I stop giving lectures, I don't keep those on 15 file forever. 16 So I don't have -- the only talks I keep on 17 file are active talks that I am still giving, 18 that I would have recently given or that I'm 19 going to be giving. If I don't think I'm going 20 to use something anymore, I no longer keep that 21 data. 22 In terms of a syllabus, many of these courses 23 had course syllabi. However, again, that would 24 depend. I probably have a few, but I don't make 25 it a practice to keep all the course syllabi. 0019 1 Q. With respect to any of the documents that we've 2 been talking about, the publications, the book 3 chapters, the lecture materials that you have, do 4 you have any -- are any of those specifically 5 relevant to the issue of how to radiographically 6 distinguish a pneumomediastinum from a 7 pneumothorax? 8 A. Well, that's a difficult question to answer 9 because I would have to go through each 10 individual paper and lecture to answer that 11 question accurately. Off the top of my head, I 12 don't know. Because some of the talks overlap 13 and they contain differing material. 14 I know that the -- for instance, the 15 PowerPoint lecture that I give for the residents 16 and the pulmonary fellows goes specifically 17 through that distinction because that's a more 18 basic talk geared toward physicians being able to 19 make that distinction. Some of the other talks 20 focus more on CT and differences in how CT can 21 contribute to those diagnoses and others in the 22 thorax. 23 So there may be less material specifically on 24 how to differentiate or identify pneumothoraces 25 and pneumomediastinums, but without having them 0020 1 in front of me, you know, I can't tell you which 2 ones cover the topic well and which ones don't. 3 Q. You were not asked to review anything in this 4 case except chest x-rays; is that correct? 5 A. That is correct. 6 Q. Did you see the reports from the chest x-rays? 7 A. Yes, I did. 8 Q. So the full extent of the materials that you 9 reviewed in this case would be the chest x-rays 10 that are itemized in your report and the 11 associated reports themselves; is that correct? 12 A. Yes. 13 Q. Have you had the opportunity to review any other 14 of Matthew's medical records? For example, any 15 of the vital signs or any of the other clinical 16 information that was documented in the chart 17 around the time that these chest x-rays were 18 done? 19 A. No. 20 Q. Did you ask to see those? 21 A. No. 22 Q. Would that be important to your opinion in this 23 case in any way? 24 A. No. 25 Q. So with respect to those items on your CV that 0021 1 have to do with CT scans, pneumothorax or 2 pneumomediastinum, those really aren't -- those 3 particular documents on your CV would not be 4 relevant to your opinions in this case? 5 A. Well, some would. Because, for instance, you 6 know, I have one of those manuscripts on the CT 7 of thoracic trauma, but it actually compares 8 plain films and CTs in a large number of cases 9 where we have both. And the point of it is that 10 you pick up a lot more abnormalities on CTs than 11 you do on chest radiographs. But a big part of 12 that article is the actual chest radiograph. 13 Many of them are -- some of the review articles 14 on trauma focus on CT but also include material 15 on plain films. So it depends. 16 Q. Have you ever testified -- strike that. Let me 17 start back before that. 18 Have you testified in trial before today as 19 an expert witness? 20 A. Yes. 21 Q. On how many occasions have you testified in 22 trial? 23 A. At least two. I've testified -- this does not 24 include criminal cases, right? 25 Q. I'm just talking about medical-legal cases. 0022 1 A. Medical-legals, that's two that I can recall. 2 Q. And were those in Cleveland or were those 3 someplace else? 4 A. No. One was in Florida. One was in Michigan. 5 Q. Were those cases cases that you were a defense 6 expert or a plaintiff's expert? 7 A. In both of those cases, I was a plaintiff expert. 8 Q. All right. In either of those cases where you 9 testified in a courtroom, did you use any 10 materials, any -- well, let me ask another 11 question before I ask that. 12 Did either of those cases have anything to do 13 with pneumothorax or pneumomediastinum? 14 A. No. 15 Q. One of the things that I would like to ask you 16 today, Dr. Sivit, is if in the event you do 17 testify at trial in this case and you are going 18 to take any materials either from your 19 publications or from your lecture materials to 20 use as demonstrative evidence or pieces to -- 21 materials to teach the jury some type of element 22 of either pneumothorax or pneumomediastinum, if 23 you would let Mr. Bulloch know in advance so that 24 I can have an opportunity to review those 25 materials. Okay? 0023 1 A. Yes. 2 Q. Along the same line, if -- as you sit here today, 3 if you can identify any of the lectures where you 4 know for a fact that you have or you may have 5 demonstrative materials that teach the difference 6 between the diagnosing of a pneumomediastinum or 7 a pneumothorax on imaging studies, could you 8 identify those for me? 9 A. Yes. 10 Q. Okay. Can you do that while we're sitting right 11 here? 12 A. The one that comes to mind is a lecture I gave to 13 the pulmonary fellows and pediatric residents on 14 how to read a chest x-ray. 15 Q. And which number would that be? 16 A. It's not a number. It's just listed. It would 17 be these two categories, "Lecturer, Pulmonary 18 fellows lecture series, Rainbow Babies & 19 Children's Hospital, 2003 to present. Lecturer, 20 Didactic and case conferences for pediatric 21 residents." Among those lectures are two 22 lectures on basic chest radiography. 23 Q. And that's on Page 38 of Exhibit 3, correct? 24 A. Correct. 25 Q. Would it be a burden to you, Dr. Sivit, for you 0024 1 to pull that part of the lecture and reproduce 2 the part of the lecture that demonstrates the 3 difference between a pneumothorax and a 4 pneumomediastinum? 5 MR. BULLOCH: Well, I'd be 6 willing, if Dr. Sivit has it available, to 7 give you the whole lecture. I don't know 8 that I'm going to ask him to spend my 9 money, my clients' money to find specific 10 reference to that for you, Pam. 11 MS. PANTAGES: Well, that's my 12 question. 13 Q. Would it be a burden for you to do that? 14 A. No. I could print out the whole PowerPoint 15 lecture. 16 Q. Okay. Great. Thank you. I would ask you to do 17 that, please. 18 A. Do you want me to do that now? It would take me 19 two minutes. 20 MR. BULLOCH: No. 21 A. It might save you some time in all your exam. 22 MR. BULLOCH: I get an opportunity 23 to look at anything first so -- 24 THE WITNESS: Okay. Very well. 25 Q. Before we go any further with questioning, we've 0025 1 marked some other items as exhibits in addition 2 to the Plaintiffs' Exhibit 3, which is your CV. 3 Plaintiffs' Exhibit No. 1 is a letter to you 4 from Moscarino & Treu, the Moscarino & Treu law 5 firm dated May 17th, 2004, correct? 6 A. Correct. 7 Q. Is that the first piece of correspondence that 8 you received in this case? 9 A. That is correct. 10 Q. And that basically sets forth materials that were 11 sent to you and also sets forth four questions 12 for you to answer. Correct? 13 A. Correct. 14 Q. Those four questions that are on the May 17, 2004 15 correspondence, are those essentially the 16 questions that summarize what you were asked to 17 do in this case? 18 A. Yes. 19 Q. Did you have a telephone conference with anybody 20 before you got this letter from Moscarino & Treu 21 that you recall? 22 A. That is possible, because usually people don't 23 send me materials in the mail without first 24 contacting me, but it was a cursory conversation 25 if it occurred. It wasn't, you know, a 15 or 0026 1 30-minute conversation. It might have been, you 2 know, "We'd like to send you materials on a case. 3 Would this be an area where you feel it's within 4 your general area of expertise?" 5 Q. Prior to May 17, 2004, had you reviewed any other 6 cases for the law firm of Moscarino & Treu? 7 A. Now, that I don't know. 8 Q. Or for the law firm of Arter & Hadden? 9 A. You know, I don't keep those types of records of 10 which firms I work with. I just don't have that 11 information. 12 Q. Since the letter of May 17, 2004, have you 13 reviewed any other cases for Moscarino & Treu? 14 A. Same answer. I could not answer accurately. I 15 don't categorize or keep that good a track of 16 these cases. 17 Q. Did you know anything about the case when you 18 received this letter? 19 A. No. 20 Q. Because the letter doesn't really give a factual 21 summary of any nature, correct? 22 A. Well, it's got specific questions that they're 23 asking. I'm not sure what you mean. 24 Q. That you can draw certain conclusions from the 25 nature of the questions that are being posed, 0027 1 correct? 2 MR. BULLOCH: Objection. 3 A. Correct. 4 Q. Beyond the information that's contained in the 5 individual questions, were you provided any other 6 information about the case? 7 A. No. 8 Q. Have you reviewed any deposition testimony? 9 A. On this case? 10 Q. Yes. 11 A. No. 12 Q. Have you been provided any summaries with respect 13 to what any of the people who have been deposed 14 in this case have said? 15 A. No. 16 Q. Do you know a Dr. Lilien? 17 A. Lilien is the last name? 18 Q. Yes. 19 A. Not to my recollection. What field of -- 20 Q. He's a neonatologist -- or he was a neonatologist 21 at Fairview Hospital. 22 A. No, I do not. 23 Q. Were you provided any information at all as to 24 what Dr. Lilien testified to at his deposition? 25 A. No. 0028 1 Q. Or what he noted in the child's hospital record 2 for that matter? 3 A. No. 4 Q. Did you know what the radiologist who interpreted 5 these films originally at Fairview Hospital -- 6 what that radiologist's interpretation was of the 7 films that you reviewed from Fairview? 8 A. I was shown the radiology reports. 9 Q. That's right. You did tell me that. I'm sorry. 10 Exhibit 2 is another letter that you received 11 from Moscarino & Treu on some scheduling issues. 12 Is that correct? 13 A. That is correct. 14 Q. Are you scheduled to testify at trial in this 15 case? 16 A. We have talked about a trial testimony. I 17 haven't been -- I don't think you specifically 18 schedule someone until the trial date is more 19 certain, but they have discussed the possibility 20 of me testifying at trial, yes. 21 Q. But as you sit here today, you haven't confirmed 22 a trial appearance with the law firm? 23 A. No. 24 Q. Okay. And then Plaintiffs' Exhibit No. 4, is 25 that a copy of the report that you drafted for 0029 1 this case? 2 A. Yes. 3 Q. Are there any other drafts of this report? 4 A. No. 5 Q. Is this -- with respect to the content of it, is 6 it the original or have there been any editing 7 changes applied to the report that you originally 8 drafted? 9 A. No. 10 Q. I want to just get some definitions from you 11 before we proceed. 12 Can you tell me what your definition is of a 13 pneumothorax? 14 A. It's air in the pleural space. 15 Q. Now, I did some medical research before your 16 deposition today, and I also saw referenced in 17 some of the pediatric literature the term "air 18 leak." 19 A. Uh-huh. 20 Q. What is an air leak, and how is it significant to 21 a pneumothorax? 22 A. The air leak is how the air gets into the pleural 23 space or by that token, into the mediastinum. 24 Air in the lungs is normally within the airways, 25 and the airways are the trachea, the main stem 0030 1 bronchi, the smaller bronchi and then the 2 terminal air sacs which are called the alveoli. 3 These are the most -- think of it as a highway. 4 The roads get narrower and narrower, and then the 5 alveoli is the cul-de-sac. So that's kind of the 6 end of the road. 7 So normally when you breath in and out or if 8 you're on a ventilator, the ventilator is moving 9 air in and out of your lungs, that's where the 10 air should stay, within your airways. An air 11 leak means that you actually have a leakage of 12 air from somewhere in your airways out to where 13 it shouldn't be. 14 Typically, that occurs in the most distal 15 airway, the alveoli. So what you have is 16 alveolar rupture, the little sac kind of bursts, 17 and there are millions of alveoli in the lungs. 18 So this can happen in an individual alveoli or 19 several dozen or a hundred. 20 But once the air gets out of this little 21 terminal sac, it dissects out first into the 22 interstitium of the lung, which is the lining 23 surrounding the airways normally made up of 24 connective tissue. The air can dissect back 25 usually right next to the airway. So it dissects 0031 1 out of alveoli and then it follows this highway 2 of airways back into the mediastinum, and then 3 typically leaks into the mediastinum and then it 4 can leak out into the pleural space. Pleural 5 space and mediastinum are two different spaces, 6 but they can at times communicate. So you can 7 end up with pneumonia without pneumomediastinum, 8 pneumonia without pneumothorax or 9 pneumomediastinum and pneumothorax. 10 But the general term "air leak" really refers 11 to air leaking out of the airways somewhere and 12 getting out into an area that it shouldn't be. 13 And, again, it's typically alveolar rupture, but 14 it can also occur elsewhere. 15 For instance, we know that in trauma, you can 16 rupture the trachea, and that's a huge hole 17 because it's a larger structure. In most 18 nontraumatic cases, it's typically the smaller 19 airways, the alveoli, that rupture. 20 Q. And is that true of what's typically seen in a 21 35-week newborn? 22 A. What is typical? 23 Q. That it's -- the breach occurs in the alveoli as 24 opposed to some other place? 25 A. Yes. 0032 1 Q. Does it occur anywhere else along the airway? 2 A. It theoretically could, but by far, the most 3 likely site is the distal airway. 4 Q. And that air leak if it's significant enough can 5 result in either a pneumothorax or a 6 pneumomediastinum. Is that correct? 7 A. Correct. 8 Q. And a pneumothorax you defined for me as air in 9 the pleural space? 10 A. That's it. 11 Q. That's the full extent? 12 A. That's it. 13 Q. And what does that mean exactly? 14 A. Well, there normally is -- the pleural space is 15 really made up of two different linings. There's 16 the visceral pleura, v-i-s-c-e-r-a-l, and then 17 there's the parietal pleura. The visceral pleura 18 is against the lung. The parietal pleura is 19 against the chest wall. 20 Normally, the two -- and they're very thin 21 membranes. I mean you wouldn't be able to really 22 see it well if we laid it out on this table. 23 It's thinner than that piece of paper. 24 Normally -- 25 Let me just turn this off. Excuse me. 0033 1 Normally, the two are opposed against one 2 another and there's nothing between them. It's 3 just a potential space. So what happens is when 4 air leaks out and gets in here, air accumulates 5 between these two layers, the visceral and 6 parietal pleura. 7 So yes, that's basically the definition. Air 8 gets into this pleural space. There should not 9 be any air in that space. 10 Q. And that's a definition of a pneumothorax, air 11 between these two pleura that you've described? 12 A. Correct. 13 Q. And what is your definition of a 14 pneumomediastinum? 15 A. Air in the mediastinum. 16 Q. And explain that to me in a little more detail. 17 A. The mediastinum is a portion of the thorax, of 18 the chest, that typically contains the heart, the 19 great vessels, such as the aorta, the inferior 20 vena cava. It contains the trachea, the 21 esophagus. It contains lymph node chains. So it 22 contains these structures, these organs, but 23 typically nothing else. Generally, all these 24 organs are usually just opposed to one another, 25 but, again, there is a potential space there 0034 1 where air can accumulate. 2 And the mediastinum extends from the thoracic 3 inlet, which is at the level of the clavicles, 4 really all the way down to the diaphragm. But 5 normally, there's no air whatsoever in the 6 mediastinum, but air can leak out of the airways 7 and track into the mediastinum and collect 8 anywhere in the mediastinum. It can collect 9 between the heart and the thymus. The thymus is 10 another mediastinal structure between the great 11 vessels. 12 So of all the mediastinal structures that I 13 named, if air collects in that area that is 14 normally a potential space, it doesn't have air, 15 then air will outline all these structures. 16 Q. Where it appears black on a film? Or white? 17 A. Would appear -- on a conventional radiograph 18 would appear black. 19 Q. Now, we know you agree that Matthew Wagoner had 20 one or more pneumothoraces in this case? 21 A. No. I think he had pneumomediastinum. 22 Q. Did he have a pneumothorax? 23 A. On the films that I was shown, on those four 24 films, I do not see a pneumothorax. 25 Q. So it's your opinion in this case that there was 0035 1 no pneumothorax at all as opposed to a unilateral 2 pneumothorax or a pneumothorax on one side 3 followed by a pneumothorax on another side or a 4 pneumothorax on both sides occurring at the same 5 time? 6 A. Could you ask that question again? 7 Q. Sure. 8 If I'm understanding your testimony in this 9 case, it's your opinion in this case that the 10 complication or one of the complications that 11 Matthew Wagoner had was a pneumomediastinum. Is 12 that correct? 13 A. That is correct. 14 Q. And you're aware from your review of the 15 interpretation of the chest films at Fairview by 16 the radiologist interpreting those chest films 17 that a diagnosis of a pneumothorax was made. Is 18 that correct? 19 A. A diagnosis was made by the radiologist at 20 Fairview of pneumothorax? 21 Q. Yes. 22 A. Yes, I am aware of that. 23 Q. And you disagree with that diagnosis? 24 A. Yes. 25 Q. You think that the diagnosis is wrong? 0036 1 A. I disagree with that diagnosis, yes. 2 Q. You think it's wrong? 3 A. Yes. 4 Q. It is not your opinion in this case, if I'm 5 understanding you, that there was a pneumothorax 6 or two pneumothoraces that were accompanied by 7 pneumomediastinum. Is that correct? 8 A. With one caveat. Of the four AP chest x-rays 9 that I was sent, one is -- they're all copies, 10 but three are adequate copies that I can read it 11 quite well. One of the films is a bit dark so I 12 cannot be entirely a hundred percent sure that 13 there wouldn't be a small, very small 14 pneumothorax. I could not see one on the film, 15 but, again, it's a dark copy so I would want to 16 see the original. 17 But if there was any, it would have to be 18 very small. So, again, that's more of a matter 19 of the quality of the copy that I was sent. On 20 the film that I was sent, I do not see a 21 pneumothorax. I do see pneumomediastinum. 22 Q. All right. 23 A. So that's one issue. 24 The other issue is that I can't assess 25 whether a pneumothorax had been present before 0037 1 the chest tube was placed. Because I have three 2 films that I reviewed from Fairview. Another one 3 was from Parma. And on one film from Fairview, 4 there are no chest tubes and there's no 5 pneumothorax or pneumomediastinum. The first 6 film from Fairview that shows a 7 pneumomediastinum, and I don't see a pneumothorax 8 on that film, also has a right-sided chest tube. 9 So it's theoretically possible that the child may 10 have had a pneumothorax on the right prior to 11 that chest tube being placed. But on the film 12 that was taken, I do not see a pneumothorax. 13 Q. All right. So we need to modify your opinion -- 14 or I want to clarify your opinion, not modify. I 15 want to clarify your opinion. Is not your 16 opinion in this case that Matthew Wagoner never 17 had a pneumothorax? 18 A. That is correct, from the standpoint I can only 19 evaluate what's on the film. 20 Q. All right. And one of the things that can happen 21 when a child or an infant has a pneumothorax, 22 sometimes because of the clinical situation of 23 the child, the care providers who are attending 24 to the child at the time may make the clinical 25 diagnosis of a pneumothorax and because of the 0038 1 urgency and the danger posed to the child as a 2 result of the pneumothorax, place the chest tube 3 before getting a chest x-ray to confirm the 4 diagnosis of pneumothorax, correct? 5 MR. BULLOCH: Objection. 6 A. Well, I'm a radiologist. So in terms of what 7 actually -- what were the clinical practices -- 8 although I can certainly -- you know, I interact 9 with my clinical colleagues all the time. I 10 think that would be a question better addressed 11 by an intensive care specialist. 12 Q. Okay. What is a tension pneumothorax? 13 A. A tension pneumothorax is a large pneumothorax 14 that results in -- because of its size and the 15 pressure generated by the air in the pleural 16 space, it causes a shift of mediastinal content, 17 including the heart and the great vessels. The 18 tension implies to the pressure being generated 19 that causes displacement typically across the 20 midline of these structures. And so, No. 1, 21 you're typically talking about a large 22 pneumothorax. 23 No. 2, the clinical significance of a tension 24 pneumothorax is because its displacing and 25 kinking all these vascular structures, it can 0039 1 impair either cardiac output or venous return, 2 and, therefore, it can create a hemodynamic 3 emergency. 4 Q. Could a tension pneumothorax appear similar to a 5 pneumomediastinum on a plain chest x-ray? 6 A. Typically, in the vast majority of situations, 7 they look very different. 8 Q. You sound like there might be a qualification to 9 that opinion. 10 A. Well, I think in medicine, there's always a 11 qualification in terms of never. I mean there 12 are certain situations in radiology that can have 13 a very atypical appearance, and we cannot be 14 certain a hundred percent of the time with most 15 situations. But there are certain findings that 16 if we see them, allow us to make a diagnosis of 17 one or the other with certainty. 18 Q. How would a tension pneumothorax and a 19 pneumomediastinum be similar on a plain chest 20 x-ray? What would be the commonality between 21 those two entities? 22 A. There are no commonalities. They typically have 23 a very different appearance. The problem may 24 arise, particularly if you have a patient that 25 may have other thoracic abnormalities or if the 0040 1 air collection is large enough, that you're not 2 sure whether it's originating from the 3 mediastinum or the pleural space. Sometimes, 4 there can be so much air filling the thorax that 5 you may have trouble with some normal landmarks. 6 You know, I suppose there's other specific 7 unique situations that I haven't brought up. To 8 me, that really wasn't an issue in this case 9 because when I look at the films, it's showing 10 typical qualities of a pneumomediastinum. 11 Q. And, again, the first set of chest x-rays that 12 you have to review at Fairview include films that 13 show the insertion of a right chest tube, 14 correct? 15 A. I have films from Fairview before the chest tube 16 was placed. 17 Q. How long before? 18 A. It would probably be easier to put the films up. 19 Q. Sure. 20 A. Okay. Shall I start with -- 21 Q. Sure. 22 A. Okay. So we have -- the first film is actually 23 an AP and lateral film from Parma Community 24 Hospital dated 8-24-99. I can't tell exactly -- 25 I think the time was 1430 hours. There's a 1430 0041 1 here which may be the time. I'm not a hundred 2 percent sure of that. 3 Then the next film is also from 8-24-99, and 4 that was taken at Fairview Hospital, and it's 5 timed 2126 hours. That's an AP film. 6 Then we have an AP film from Fairview 7 Hospital dated 8-25-99 timed 1924 hours, and then 8 we have another AP film from Fairview Hospital 9 from 8-25-99 dated -- or timed 2352 hours. 10 And while we're on the subject of these 11 films, these are all copies, but the one film 12 that is a bit dark is this third film from 13 8-25-99, 1924 hours. It's adequate enough for me 14 to see that there's a pneumomediastinum here, but 15 it's dark enough that it is possible that if a 16 small pneumothorax was present, it would be 17 difficult to see on this copy. But there 18 certainly is not any significant pneumothorax on 19 this third film. 20 Q. All right. 21 So you start with the film from Parma 22 Community Hospital, right? 23 A. Correct. 24 Q. And did you see the radiology report for that 25 film? 0042 1 A. I did, but I think it probably would be easier to 2 just let me look at it if you're going to ask me 3 questions about it. 4 Q. Do you disagree with the interpretation of 5 Dr. Klatte at Parma Community Hospital? 6 A. I would probably have dictated it as I have in my 7 report, but I don't have any major disagreement 8 with his report. 9 Q. What issue do you have with the way that he 10 dictated this report? 11 A. Well, I would -- one, I use the term "ground 12 glass." I would use ground glass rather than 13 fine granular, but I think both are appropriate. 14 I would describe the asymmetry -- 15 I thought I turned this off. There we go. 16 I would describe the asymmetry in the 17 appearance of the lung fields. I think there is 18 asymmetrically greater disease in the upper lung 19 zones. I also -- whenever we see this 20 radiographic pattern, we can't really distinguish 21 between hyaline membrane disease and neonatal 22 pneumonia, so I would -- I always put that 23 differentiation, hyaline membrane disease versus 24 neonatal pneumonia. Those would be the main 25 differences. But I don't think that it is an 0043 1 inaccurate report. It's more certain wording. 2 Q. In Plaintiffs' Exhibit 1, you were asked "What is 3 the severity of Matthew Wagoner's hyaline 4 membrane disease (mild, moderate, severe) from 5 the Parma chest x-rays?" 6 Are you able to answer that question? 7 A. No. I believe that in my expert report, I 8 characterize radiographic severity of disease. I 9 do not think that that needs to equate with 10 clinical severity. So I think what I can assess 11 is radiographic severity of disease. 12 Q. And you've characterized it as moderate. Is that 13 correct? 14 A. In the upper lung zones. Again, if you were to 15 look in the middle and lower lungs, it's mild. 16 Q. When you refer to patchy ground glass opacities, 17 what are you referring to? 18 A. Patchy means that it's in an uneven distribution 19 so that there are areas that are more involved, 20 involved more severely than others. It's not a 21 homogeneous or symmetrical distribution. 22 So if you look at this film, you see more 23 white in the upper part of the thorax. So that's 24 kind of a patchy appearance to me as opposed to 25 the second film, which is a diffuse, everything 0044 1 looks pretty even throughout. It's pretty 2 symmetrical, even looking film. 3 Q. Is the finding of patchy ground glass opacities 4 diagnostic of any particular disease process? 5 A. No. 6 Q. You were asked -- or you suggested that it might 7 be hyaline membrane disease, it might be 8 pneumonia. Did I understand you correctly? 9 A. That is correct. 10 Q. Do you have an opinion as to which is more 11 likely, the hyaline membrane disease or the 12 pneumonia? 13 A. No. 14 Q. Comparing the Parma x-ray to the subsequent 15 x-rays, did you rule in or rule out hyaline 16 membrane disease versus pneumonia? 17 A. No. In fact, I will add to that. I stated again 18 in this letter that it's consistent with 19 respiratory distress syndrome, also called 20 hyaline membrane disease. And I say "The same 21 radiographic pattern may be seen in association 22 with neonatal pneumonia." 23 I restricted the differential in my report 24 here because with this clinical setting at this 25 age, those would be by far the most likely 0045 1 scenarios. 2 But in terms of radiographic appearance, you 3 can have other things that look like that. 4 Pulmonary edema can look like that. Pulmonary 5 hemorrhage can look like that. But generally -- 6 and, you know, we have a large nursery here so I 7 see a lot of these films every day. This is the 8 usual working differential for neonatologists and 9 us when you have this type of pattern in a 10 newborn. 11 Q. And would you then defer to the clinicians to 12 clinically corroborate either hyaline membrane 13 disease or pneumonia? 14 A. Oh, absolutely. 15 Q. So you aren't making a diagnosis by virtue of 16 this chest x-ray of hyaline membrane disease or 17 pneumonia? 18 A. No. 19 Q. That's correct? 20 A. That is correct. 21 Q. All right. Tell me a little bit about your 22 practice, doctor. You said that you review a lot 23 of these types of films on a regular basis. Is 24 that correct? 25 A. Well, yes. We have a large neonatal intensive 0046 1 care unit here. There's four of us pediatric 2 radiologists. But we -- between the four of us, 3 we read all of the films from the neonatal 4 intensive care unit, which probably is 20 to 25 5 films on an average day. We round with the 6 neonatologists every morning. They'll come down 7 as a team and review all the radiographs from the 8 last 24 hours. 9 So we -- I have a chance on a daily basis to 10 put together the imaging findings with what's 11 going on with the patient and, you know, you both 12 learn a lot about each other's areas that way. 13 Q. Are you a chest radiographic specialist or do you 14 read all types of imaging studies for the NICU? 15 A. I'm a pediatric radiologist. So I read all of 16 the studies except the neuroimaging, the head CTs 17 and head MRs, but everything else we read. 18 Q. And who does that, the head CTs and head MRs? 19 A. The neuroradiologists. 20 Q. Is that here at Rainbow? 21 A. There are five or six neuroradiologists here. 22 Q. All right. So you can comment on the 23 radiographic severity of the disease process and 24 you can name some various disease processes that 25 this picture is consistent with, but with respect 0047 1 to either offering a diagnosis of the actual 2 disease process or offering a diagnosis of the 3 severity of that specific disease process, that's 4 beyond what you're capable of doing given the 5 information that you have. Is that correct? 6 A. Correct. 7 Q. Okay. 8 Then you have the second chest x-ray, and 9 that's a Fairview chest x-ray, correct? 10 A. Correct. 11 MS. PANTAGES: I'd like to mark 12 this as an exhibit. 13 - - - - 14 (Thereupon, Plaintiffs' Sivit Deposition 15 Exhibit 5, one-page Fairview x-ray 16 interpretation, was marked for purposes of 17 identification.) 18 - - - - 19 Q. We have marked the Fairview interpretation as 20 Plaintiffs' Exhibit 5. Okay? 21 A. Yes. 22 Q. Now, how does -- and I'll give you a minute to 23 review that, Dr. Sivit. 24 How does your interpretation differ from the 25 Fairview interpretation? 0048 1 A. Well, we both describe ground glass opacities. I 2 quantified -- attempted to quantify the 3 radiographic severity, which is just something I 4 did. They did not. We both included hyaline 5 membrane disease or respiratory distress syndrome 6 in our differential. I guess I didn't continue 7 to include the differential on every report 8 because it was the same radiographic pattern. 9 But they also mention respiratory -- RDS 10 stands for respiratory distress syndrome, and 11 people use that term synonymously with hyaline 12 membrane disease. 13 The radiologist also mentions congestion in 14 the differential, and I would interpret 15 congestion to mean pulmonary edema. And as I 16 mentioned to you earlier, that would have the 17 same radiographic appearance. So I would agree 18 with what they're saying. 19 And in terms of sepsis, sepsis is a 20 generalized infection. So you'd have to assume 21 that what they meant by sepsis in the lungs would 22 be pneumonia. So assuming that that's what the 23 radiologist meant, I would agree with the report. 24 Q. Is there anything you disagree with in the 25 report? 0049 1 A. Well, I probably would not have used the term 2 "sepsis." So I probably would have -- if I would 3 have given a differential, I would have said 4 respiratory distress syndrome versus pneumonia 5 versus pulmonary edema. So my wording would have 6 been different. 7 Q. All right. And, again, you can't make a 8 diagnosis of infection from this chest x-ray; is 9 that correct? 10 A. That is correct. 11 Q. And the only -- and the only difference that you 12 have, such as it is, with the radiologist's at 13 Fairview's interpretation of this film is the use 14 of the term "sepsis" as opposed to the word 15 "pneumonia." Is that correct? 16 A. Yes. And I would have used pulmonary edema 17 rather than congestion, although I understand 18 what they're trying to say and I think the terms 19 are pretty similar so some people would consider 20 them the same. 21 Q. Do you know Dr. Carey? 22 A. No. 23 Q. And there's no description on the Fairview 24 interpretation of pneumothorax or 25 pneumomediastinum, correct? 0050 1 A. Correct. 2 Q. Okay. Between the Parma Community chest x-ray 3 and the first Fairview chest x-ray, has the 4 disease process gotten better, gotten worse or 5 stayed the same? 6 A. It's gotten worse. 7 Q. And in what respect has it gotten worse? 8 A. Before, the lower lobes, the -- on the left lung, 9 the mid and lower lobes, and on the right, the 10 lower lobe, you can see that it's blacker. That 11 means that more alveoli were air filled. Now 12 it's hazier and denser throughout so there's less 13 alveoli that are air filled. So they're either 14 collapsed or filled with pus or filled with 15 water. The film looks lighter, it looks denser, 16 and that means that -- the less black the film 17 looks, it typically implies that less of the 18 alveoli, or terminal air sacs, less of them are 19 air filled. 20 Q. And on the second film, meaning the first 21 Fairview film, the child has an ET tube in place, 22 correct? 23 A. That is correct. 24 Q. And the significance of that is what? 25 A. Well, I'm sure there was some clinical 0051 1 significance, that typically the -- and, again, I 2 have not seen any of the medical records in this 3 child so this is all speculation based on our 4 standard practice, but -- and what I've seen 5 done. 6 But generally, when people are intubated and 7 put on a respirator, it's because they are in a 8 greater degree of respiratory distress. They're 9 not able to oxygenate and ventilate adequately 10 without ventilator support, which whatever the 11 underlying condition, it generally means that 12 they're sicker. 13 Q. Did you know from any source in your review of 14 this case that he was born at 35 weeks gestation? 15 A. No, I did not. 16 Q. Does that impact on your opinion at all? 17 A. It doesn't -- no, not to what I was asked to do 18 here. It has no bearing on my opinion. 19 Q. All right. Can you and I agree that a 35-week 20 gestation infant is at a greater risk for 21 pneumothorax than a child of term pregnancy -- 22 MR. BULLOCH: Objection. 23 Q. -- or gestational age? 24 A. I would not agree to that. I would not agree or 25 disagree. I don't know the actual data on that. 0052 1 Q. 35-week-old infants are at risk for pneumothorax, 2 are they not? 3 A. And so are term infants. 4 Q. And whether one has a greater risk than another, 5 you don't know one way or another? Or you don't 6 have an opinion on one way or another? 7 A. I do not have an opinion, yes. 8 Q. Are you familiar with the use of surfactant? 9 A. Yes. 10 Q. Do you know what surfactant is used for? 11 A. Yes, I do. 12 Q. What is it used for? 13 A. To treat respiratory distress syndrome. 14 Q. Do you know what the indications for surfactant 15 are? 16 A. The actual clinical criteria I could not tell 17 you, but I know that it has -- it factors in the 18 overall clinical condition of the child and 19 probably the radiographic appearance as well. So 20 it's probably used in the setting of respiratory 21 distress, particularly in the premature infant, 22 and after they've excluded cardiac disease or 23 other causes. If they are thinking that 24 respiratory distress syndrome is a primary or the 25 consideration, they would use it, but the actual 0053 1 clinicals that they would use I could not tell 2 you. 3 Q. Do you know if there's any age of infant after 4 which point in time surfactant is no longer 5 indicated? 6 MR. BULLOCH: Objection. 7 A. It's not part of my practice to make those 8 decisions so no, I do not know. I don't know 9 that answer. 10 Q. Can you and I agree though here at your 11 institution, surfactant is routinely given to 12 premature infants who have respiratory distress 13 syndrome? 14 MR. BULLOCH: Objection. 15 A. It is given. I cannot -- that wording 16 "routinely," no, I cannot -- I don't know the 17 answer to that because I'm not upstairs and I 18 don't know what percentage of infants with 19 suspected respiratory distress syndrome get it. 20 Q. Can you agree that surfactant is commonly given 21 to premature infants with respiratory distress 22 syndrome? 23 MR. BULLOCH: Objection. 24 A. Yes, I would agree to that. 25 Q. And what is the purpose of surfactant? 0054 1 MR. BULLOCH: Objection. 2 Q. What does it do? 3 A. Okay. Well, respiratory distress syndrome, 4 otherwise known as hyaline membrane disease, is 5 also termed by some people surfactant deficiency 6 disease. The feeling is that infants -- fetuses 7 begin to produce surfactant late in fetal life. 8 So newborns, near term newborns for the most part 9 are born with adequate surfactant on board. So 10 the premature infants to a greater degree are 11 deficient in surfactant. 12 Surfactant helps maintain the surface tension 13 in the alveoli. So without adequate surfactant, 14 the alveoli, instead of staying open, collapse. 15 So the reason that these films look hazy and 16 ground glass like this is because what really -- 17 what makes the lungs look black on a chest x-ray 18 is all these millions of alveoli being filled 19 with air. 20 So if the alveoli are filled with pus as with 21 pneumonia, if they're filled with water as with 22 pulmonary edema or if they're just collapsed as 23 with respiratory distress syndrome, the lungs 24 will look whiter. 25 So the thinking then is when there's 0055 1 surfactant deficiency on board -- it's known that 2 the body -- the babies will start producing 3 surfactant on their own after about 48 to 72 4 hours. The problem is in that first 48 to 72 5 hours that if -- without surfactant, all these 6 alveoli are collapsed and you can't ventilate 7 them. 8 So the thinking then is you give surfactant 9 usually through the endotracheal tube in order to 10 expedite the process to get the alveoli to open 11 up. 12 MR. BULLOCH: Move to strike. 13 Pam, you know, we've got four 14 neonatologists on this case, experts. One 15 from this institution on the defense side. 16 I really don't think it's appropriate to 17 ask this doctor, who is a pediatric 18 radiologist, questions about when you're 19 giving surfactant. 20 MS. PANTAGES: I asked him if he 21 was familiar, and he said he was, so I 22 think that's fair. 23 MR. BULLOCH: Well, there are a 24 lot of probablies qualifying some of those 25 answers. So let's move on. 0056 1 MS. PANTAGES: Let's -- that's 2 correct. 3 Q. And you noticed a worsening of the whiteness on 4 the film between the Parma Community film and the 5 first Fairview film, correct? 6 A. In the lower half of the lungs, yes. 7 Q. And hypothetically, from a radiographic 8 standpoint, I want you to assume that in these 9 two pictures, the reason why these films are 10 white is because the alveoli are collapsing on 11 themselves in a manner that's consistent with the 12 way that you describe respiratory distress 13 syndrome. 14 MR. BULLOCH: Objection. 15 Q. All right? Assume that for my question. Okay? 16 A. Can you just restate that? 17 Q. Sure. 18 I want you to assume that in those two first 19 radiographs that we're talking about, the reason 20 why they're white is not related to an edema or 21 fluids; the reason why they're white has to do 22 with the fact that it's respiratory distress 23 syndrome in this infant and they're collapsing in 24 the manner that you described. All right? 25 A. Okay. 0057 1 Q. I want you to assume that between the time of the 2 Parma Community radiograph and the time of the 3 first Fairview radiographic, surfactant was 4 given. 5 A. So between here and here? 6 Q. Right. 7 How would the second radiograph look 8 different from the first one? Or would it look 9 the same as what we have in front of us? 10 MR. BULLOCH: Objection. 11 A. If surfactant was given? 12 Q. Yes. 13 A. That's not a question I can answer because 14 there's no -- there's not a predictable response 15 that we see radiographically. In many cases, but 16 I can't give you any percentage, we actually see 17 some improvement. But, you know, there's a 18 reasonable number of cases also that we see no 19 change or we see worsening. And I know that that 20 is well established in the literature. 21 Q. What is well established in the literature? 22 A. That there's a variable pattern on chest 23 radiography following surfactant. 24 Q. But the reason why it's given is with the hope 25 that you are going to see some improvement, 0058 1 correct? 2 MR. BULLOCH: Objection. 3 A. Well, the reason that it's given is with the hope 4 that you'll see clinical improvement. We also 5 know whether surfactant is given or not -- and 6 that's why I was very careful to qualify this as 7 a radiographic severity. Because radiographic 8 severity does not always equal clinical severity. 9 And we see this with pulmonary edema, we see this 10 with respiratory distress syndrome. We can see 11 clinical improvement, and we can see the 12 radiographic changes lag, and they can lag for 13 12, 24 hours. 14 So just because -- the x-ray may look worse, 15 but the patient may be doing better. Or vice 16 versa. Many times, they parallel each other. 17 But it's not unusual to have some divergence. 18 Q. All right. 19 And then you referenced the third film from 20 Fairview, and if I'm understanding your testimony 21 in this case, this third film is suboptimal. Is 22 that correct? 23 A. Well, the film isn't suboptimal. The copy that I 24 was sent is a bit dark. 25 Q. Do you think that the original might be a better 0059 1 depiction of what's going on? 2 A. Well, original films are always better than 3 copies. 4 Q. But whether the original film was dark or not, 5 you can't really tell one way or another having 6 not seen it? 7 A. Correct. 8 Q. It might be dark. It might not. You don't know. 9 Is that right? 10 A. I don't know, correct. 11 Q. Have you asked to see the original? 12 A. No. 13 Q. Do you know where the originals are? 14 A. No. 15 Q. What can you tell me from the third film? Let 16 me -- just going back to the original Fairview, 17 we talked about your opinions with respect to the 18 first Fairview film. And as I understand it, the 19 only difference that you take with Dr. Carey is 20 the use of the term "congestion" and the use of 21 the term "sepsis" and you would have substituted 22 pulmonary edema and pneumonia. Is that correct? 23 A. Yes. 24 Q. Otherwise -- 25 A. Yes. And I generally try to quantify the 0060 1 severity of radiographic disease. But, again, 2 that's not disagreement. You know, I would have 3 just used another term to quantify it as moderate 4 to severe. 5 Q. Then on to the third film. 6 - - - - 7 (Thereupon, Plaintiffs' Sivit Deposition 8 Exhibit 6, one-page Fairview x-ray 9 interpretation, was marked for purposes of 10 identification.) 11 - - - - 12 Q. I'm going to hand what you we've marked as 13 Plaintiffs' Exhibit No. 6, doctor. And that is 14 Dr. Carey -- the same radiologist at Fairview -- 15 Dr. Carey's interpretation of the next film, 16 which is dated August 25th, 1999. Is that 17 correct? 18 A. That is correct. 19 Q. All right. And I take it you disagree with 20 Dr. Carey's interpretation of this film? 21 A. Let's see. I would disagree with the sentence 22 that states "There is evidence of pneumothorax 23 bilaterally." 24 Q. Anything else? 25 A. Well, the sentence "The thymus is outlined by 0061 1 surrounding pneumothorax." 2 That's it. 3 Q. Anything else that you disagree with? 4 A. No major change. I think the endotracheal tube 5 is actually a little higher than he describes. 6 He says it's possibly at the level of the aortic 7 arch. I can't see where the aortic arch is. So, 8 again, I would not have used that description, 9 but that's not really pertinent to this case. 10 Q. He also goes on to say "There is a right sided 11 chest tube, with its tip extending almost to the 12 midline at the level of the mid chest." 13 Would agree with that? 14 A. Yes. I don't have any other disagreements with 15 this report. 16 Q. All right. 17 The fact that there is a right-sided chest 18 tube in this case, you don't as a matter of 19 treating pneumomediastinum insert chest tubes, 20 correct? 21 MR. BULLOCH: Objection. 22 A. That is correct. 23 Q. All right. So presumably in addition to 24 Dr. Carey concluding that this child had 25 pneumothorax bilaterally, some other physician 0062 1 likewise concluded that there was a pneumothorax 2 by virtue of the fact that this child has a chest 3 tube inserted. 4 MR. BULLOCH: Objection. 5 Q. Is that correct? 6 A. Not necessarily. 7 Q. Well, for what other purpose would there be a 8 chest tube in this child? 9 A. You can make the diagnosis of a pneumothorax with 10 other means other than a chest x-ray. 11 Q. I don't understand your answer. I'm sorry. 12 A. You can try to establish the diagnosis of a 13 pneumothorax by other means other than a chest 14 x-ray. 15 Q. And by what other means? 16 A. Again, you know, this is out of my area of 17 expertise so I would defer to clinicians, but I 18 think if you have physical examination findings 19 that suddenly, you have marked asymmetry of 20 breath sounds in the lungs or if there's some 21 obvious change in the patient's physical exam. 22 Clinicians can also try to transilluminate 23 the thorax with a light to see if they see -- I 24 don't do any of those things because I'm a 25 radiologist, but I know that there are. 0063 1 The takeaway message from what I'm trying to 2 say is that there are other means other than 3 chest x-ray for a clinical caregiver to diagnose 4 a pneumothorax. 5 Q. And I want to make sure that I understand what 6 you're telling me. Are you telling me that 7 you're not -- it's not your opinion in this case 8 that this child didn't have a pneumothorax? Are 9 you telling me that it's your opinion in this 10 case by virtue of the chest films that you have 11 in front of you that you can't confirm a 12 pneumothorax by these films? 13 A. I don't think that's what I said at all. And I 14 may need to break up your statement right now 15 into components because I think that it was very 16 long and may have contained several ideas. 17 Q. Okay. 18 A. I do not see a pneumothorax on this film. I see 19 a pneumomediastinum. I think we started off with 20 you asking me -- I believe the gist of your 21 question was that whether the -- someone else 22 other than the radiologist thought that there was 23 a pneumothorax also. 24 Q. Because there's a chest tube in the chest. 25 A. Because there's a chest tube. And my answer to 0064 1 you was that you can use -- a clinician might 2 potentially use other means than a chest x-ray to 3 diagnose a pneumothorax. So that doesn't 4 necessarily mean that someone else other than the 5 radiologist thought there was a pneumothorax. 6 They may not have based their decision on these 7 x-rays. I don't know. 8 Q. Oh, that's not my question. 9 A. Then I misunderstood what you're asking. 10 Q. I'm not saying that someone looked at this x-ray 11 and agreed with Dr. Carey that this x-ray showed 12 a pneumothorax. My question is that -- as to the 13 issue concerning whether or not this child did in 14 fact have a pneumothorax. We know that someone 15 else made that conclusion by whatever method 16 because there's a right chest tube in place. 17 Isn't that the conclusion that we draw as to why 18 that chest tube is there? 19 MR. BULLOCH: Objection. You're 20 asking him to assume what some other doctor 21 was thinking, and you're asking him to 22 assume that that doctor was -- 23 A. Correct. They might have been wrong. There 24 might not have been a pneumothorax. 25 MS. PANTAGES: Thank you, John. 0065 1 MR. BULLOCH: You're welcome. 2 A. Yeah, I would draw no conclusion about that. 3 That really is not what I was asked to do in this 4 case. I was not even shown any of the medical 5 records. I don't know what occurred, what 6 transpired on the floor. Even if I had, I'm a 7 radiologist; I'm not an intensivist. So I can't 8 guess what people were thinking. 9 Yes, this film has a pneumomediastinum, does 10 not have a pneumothorax that I can see, and it 11 has a right-sided chest tube. So yes, somebody 12 did put a right chest tube in there, but what 13 their rationale was I could not tell you. 14 Q. And it's not a complicated question, and I don't 15 mean to make it complicated. 16 As a radiologist, can you draw the conclusion 17 that this child probably had a diagnosis of a 18 pneumothorax because there's a right chest tube 19 in place or do you not place any significance at 20 all on the fact that there's a right chest tube? 21 A. Well, I place -- the significance is somebody 22 thought there was a pneumothorax present. 23 Q. That's exactly my -- that's what I was trying -- 24 maybe I didn't phrase my -- 25 A. But I mean what they based their decision on I 0066 1 can't -- I thought you were asking me that 2 someone else thought there was a pneumothorax 3 present on this x-ray. 4 Q. No. That's not my question. Someone else made 5 the diagnosis of pneumothorax in this child and 6 because of that, put a right chest tube in place. 7 A. But again, you know, I will also tell you that 8 pneumothoraces -- chest tubes are also placed at 9 certain specific times for other reasons. For 10 instance, we know that following many thoracic 11 surgeries, they're put in routinely just to help 12 drain. 13 So all I can really tell you is that there's 14 a chest tube in there. I can't really come up to 15 you with the precise rationale of why and who did 16 this for what reason. 17 Q. Let's back up a little bit so that -- I just want 18 to talk to you a little bit. And maybe you could 19 sit down because I'm -- 20 A. Okay. 21 Q. Let's just talk just really briefly about the 22 difference between pneumothorax and 23 pneumomediastinum in a 35-week newborn. Okay? 24 Of 35 weeks gestation. 25 A. Okay. Yes. 0067 1 Q. Can you tell me -- and I'm going to take it 2 through a methodology, and maybe we can just do a 3 brief distinction between the two. 4 As between pneumothorax and 5 pneumomediastinum, what are the risk factors or 6 potential causes of that in a 35-week infant? 7 A. Probably the same causes and risk factors. 8 Because as I said earlier, they usually result 9 from an air leak. Alveolar rupture. Air tracks 10 back up the bronchoalveolar sheath usually to the 11 mediastinum, and then it can either be confined 12 there or it can progress on to the pleural space. 13 Q. Respiratory distress syndrome in a premature 14 infant, is that a risk factor for both 15 pneumomediastinum and pneumothorax? 16 A. When you say a risk factor, can it be associated 17 with? 18 Q. Yes. 19 A. There is -- you're going to find an association. 20 I can't give you any -- you know, any data in the 21 literature in terms of any percentages, but 22 any -- probably any disease that results in 23 respiratory distress and requires mechanical 24 ventilation is going to have pneumothorax and/or 25 pneumomediastinum as a risk factor. 0068 1 Q. Is a pneumomediastinum an entity that is a 2 precursor to pneumothorax? It's a separate 3 entity. They're associated somehow in the way 4 they develop in a child. How are they related in 5 any way? 6 A. Well, we know they're related because they 7 probably have the same basic mechanism, but 8 they're not related in the sense that they have 9 to be seen together. Even though they result 10 from air leaking out of small airways and in many 11 cases, passing through the mediastinum, we see a 12 number of cases. I would say the majority of 13 times, we will see one or the other. We can see 14 them together, but I think it's more likely, more 15 common to see either a pneumothorax or a 16 pneumomediastinum. 17 Q. But they can occur together? 18 A. Or they can occur together, yes. 19 Q. All right. Do you know -- do you have an opinion 20 as to whether or not the use of surfactant 21 decreases the risk or the complication of 22 pneumothorax or pneumomediastinum? 23 MR. BULLOCH: Objection. 24 A. I don't have an opinion. 25 Q. All right. Do you have an opinion as to the 0069 1 distinction between the clinical signs and 2 symptoms of pneumothorax versus 3 pneumomediastinum? 4 MR. BULLOCH: Objection. 5 A. I do not have an opinion. 6 Q. Would you agree with me that the more profound 7 effects on the child's vital signs, on the 8 child's arterial blood gases, on the child's 9 ability to move air is with a pneumothorax as 10 opposed to a pneumomediastinum? 11 MR. BULLOCH: Objection. 12 A. Well, again, I'm not involved in clinical 13 caregiving. So to answer that question, I would 14 have to answer it from a radiologist's viewpoint. 15 And part of our training and then part of my 16 teaching is that when we diagnose a pneumothorax, 17 that needs to be communicated with a great 18 urgency immediately because that has the 19 potential for more severe complications. 20 Whereas a pneumomediastinum, although we will 21 also want to communicate that, that typically 22 does not have anywhere near the same clinical 23 implications that a pneumomediastinum -- 24 pneumothorax. It typically does not -- and I say 25 typically. I think you can probably go into the 0070 1 literature and find isolated case reports, but 2 the vast majority of pneumomediastinums do not 3 result in cardiovascular compromise. 4 Q. And pneumothorax is known to potentially 5 compromise a child from a cardiovascular 6 standpoint, correct? 7 MR. BULLOCH: Objection. 8 A. It can theoretically if large enough. 9 Q. And it can also compromise the perfusion to the 10 child's brain as well, can it not? 11 A. Again, that is going beyond my level of 12 expertise. You know, again, I know that 13 globally, it can affect the function of the 14 heart, but in terms of specific organ systems, 15 you know, you would want to address that with an 16 intensivist. 17 Q. And from a clinical standpoint, if you know, a 18 pneumomediastinum can be asymptomatic, correct? 19 A. Well, again, I don't know how I can answer that 20 question. I'm a radiologist so I'm not around 21 patients. 22 Q. All right. 23 Are you aware that children with a 24 pneumothorax appear sicker than children with a 25 pneumomediastinum? 0071 1 MR. BULLOCH: Objection. 2 A. I really don't have any opinion on that. 3 Q. But at least from a radiographic standpoint, if 4 you make the diagnosis of a pneumothorax, you 5 understand that that's an urgent and emergent 6 situation, that you're supposed to pick up the 7 phone and call somebody and let them know that 8 you've made that diagnosis radiographically, 9 correct? 10 A. Correct. 11 MS. PANTAGES: Can we take a real 12 fast break? 13 MR. BULLOCH: Sure. 14 - - - - 15 (Thereupon, a recess was had.) 16 - - - - 17 Q. Let's go to the fourth film. 18 A. We never looked at the third. 19 Q. Oh, okay. 20 A. I mean I can look at whatever you want. 21 Q. No. Go ahead. Give me your interpretation of 22 the third. 23 A. Well, we discussed the report, and I mentioned 24 that I disagreed with the presence of bilateral 25 pneumothorax because what I see here is a 0072 1 pneumomediastinum. And the reason I can say that 2 is because they look different. 3 A pneumomediastinum is air in the mediastinal 4 space. So by definition, you're going to see air 5 outlining the different mediastinal components. 6 And we see that here. We see here, which looks 7 as this black area on the film, separating out 8 the thymus in the upper mediastinum from the 9 heart. And this is a unique finding that you 10 only see in pneumomediastinum. 11 And it's actually described by some -- you'll 12 see it in some textbooks described as the thymic 13 sail sign. Because when the thymus is separated 14 from the heart and you have air under it, if you 15 use your imagination, it looks a little bit like 16 a sail. So that's a sign of a pneumomediastinum. 17 Again, dark film, but if you get up close, 18 you can also see that there's air just adjacent 19 to the right heart border here. So there's air 20 medially in the thorax around the heart, and 21 that's what you see with a pneumomediastinum also 22 because it's outlining the mediastinal 23 structures. 24 If you had a pneumothorax, what you would see 25 is the air in the pleural space would tend to be 0073 1 laterally, and you'd see air between -- lateral 2 to the lung. In fact, you would be able to see 3 the visceral pleura, which show up as a line, and 4 then the lung. And if it's large enough, the 5 mediastinal structures like the heart would be 6 pushed over to the midline. 7 If you notice, this endotracheal tube -- the 8 child is intubated -- is also perfectly midline. 9 It almost is perfectly over this vertebra and 10 looks exactly like it did on the previous film. 11 It's a little bit off to the midline because it's 12 not perfectly centered, but it's pretty close to 13 the midline. 14 Again, if you had a large pneumothorax, that 15 would be off shifted to one side or the other. 16 Depends on which side the pneumothorax was. But 17 this is a pneumomediastinum based on the location 18 of the air and the appearance of the air relative 19 to the mediastinal organs. 20 Q. And I want you to -- just one more time. The 21 significant finding on this film, the third film, 22 in terms of what you believe is consistent with a 23 pneumomediastinum is? If you could just run 24 through it one more time. 25 A. Okay. No. 1, air separating the thymus and the 0074 1 heart. And that finding is also referred by some 2 as the thymic sail sign. 3 Q. And when you're referring to the thymus and the 4 heart, they are -- essentially the thymus is on 5 the top right in the area of where the ET tube 6 is, and this area of the heart is the whiter area 7 below? 8 A. This is the heart. This is the thymus. If you 9 want to see what they -- normally, the two 10 structures are superimposed. So look at this 11 film or this film. The thymus is sitting up 12 here. The heart is sitting right here. But you 13 can't differentiate them. They blend together. 14 Q. You're referring to the second film? 15 A. The second film. Because they're set up like 16 this with my right hand being the heart, my upper 17 hand being the thymus. Now, when air accumulates 18 in the mediastinum, it kind of separates. It 19 collects between the heart and the thymus, and 20 this whole area then will be black. So that's 21 one finding for the pneumomediastinum. You have 22 air between the thymus and the heart separating 23 the two. 24 And then we also see air medially in the 25 chest immediately surrounding the right edge of 0075 1 the heart. That's also where mediastinal air 2 collects. 3 Q. All right. And if this was -- well, strike that. 4 You don't know Dr. Fachtna, F-a-c-h-t-n-a, do 5 you? 6 A. Dr. Fachtna. No, I do not. 7 Q. Are you critical of Dr. Carey for his 8 interpretation -- or her interpretation of this 9 film? 10 MR. BULLOCH: Objection. 11 A. Critical? What do you mean by "critical"? 12 Q. Well, would a reasonably careful and cautious 13 radiologist interpreting this film describe a 14 bilateral pneumothorax or pneumothoraces or would 15 a reasonably careful and cautious radiologist 16 interpreting this film describe or interpret this 17 film as showing a pneumomediastinum? 18 MR. BULLOCH: Objection. 19 Q. Or stated another way, because you've been an 20 expert witness before in medical-legal cases, did 21 Dr. Carey deviate from radiologic standards of 22 care in missing the pneumomediastinum and in 23 erroneously describing pneumothorax bilaterally? 24 MR. BULLOCH: Objection. 25 A. That would be -- I would have to say that I 0076 1 disagree with her finding, that I think her 2 finding is in error, but I don't know that I 3 would go as far as to say that it would be below 4 the standard of care. 5 Q. Well, is this a difficult chest x-ray to 6 interpret or is this fairly elementary? 7 A. I don't think it's difficult. 8 Q. So you would expect a reasonably competent, 9 careful and cautious radiologist to make the 10 finding of pneumomediastinum. 11 MR. BULLOCH: Objection. 12 Q. Correct? 13 MR. BULLOCH: Asked and answered. 14 A. The difficulty here is that this thymic sail sign 15 is really a finding that you would see with a 16 pneumomediastinum only in children. Because 17 adults -- even teenagers no longer have a 18 significant thymus. So a radiologist that 19 doesn't read many pediatric films may not be as 20 familiar with this sign. 21 Q. All right. And if I'm understanding our 22 discussion of your background at the beginning of 23 this deposition, you are a pediatric radiologist, 24 correct? 25 A. Correct. 0077 1 Q. And you review -- you routinely as part of your 2 daily work review the imaging studies from day of 3 life one to 18 years of age, 21 years of age? 4 How far up do you go? 5 A. Really beyond that sometimes. Because there are 6 some -- there are some young adults that have 7 pediatric diseases that are still being followed 8 by their pediatric subspecialist. So 95 percent 9 plus of my work is birth to 18. 10 Q. And what percentage of those cases are chest 11 x-rays? 12 A. I don't know that I can answer that because I 13 read so many different studies. It's a 14 significant number, but I would be pulling it 15 from the air. 16 Q. Do you do head ultrasound? 17 A. Yes. 18 Q. But you do not do head CTs or head MRIs? 19 A. Right. The only thing I can't do. I do body 20 CTs. I do body MRs. I do all ultrasound. I do 21 fluoroscopy studies, plain films. 22 Q. If I understood your testimony earlier, as part 23 of your practice, do you routinely interpret 24 children's films with their clinical doctors? 25 Would you, for example, sit down with a 0078 1 neonatologist and discuss what you see on a chest 2 x-ray together? 3 A. I don't know if I understand your question 4 correctly. 5 Q. As part of your practice, do you often sit down 6 with the neonatologists at Rainbow and look at 7 the films of the patients together? 8 A. Well, when I sit down to dictate films, which I 9 do throughout the day, I'm not doing that in 10 conjunction with a clinician. I'm sitting down 11 at the workstation and dictating. 12 We have conferences with certain subspecialty 13 groups that vary in frequency. Neonatologists, 14 we round with them Monday through Friday. It's a 15 30-minute conference, 8:30 to 9:00 every weekday. 16 Q. Do you find that neonatologists are competent to 17 interpret chest x-rays? 18 A. That's a generalization. I only work with the 19 ones here. And even here, there are some that 20 are better than others. So it's -- you know, it 21 probably varies from place to place. 22 Q. Do you think that there are certain 23 neonatologists who feel that they're competent to 24 review a child's -- their patient's chest x-rays? 25 MR. BULLOCH: Objection. You're 0079 1 asking him to know what's in a 2 neonatologist's mind? 3 A. I can't -- I can tell you that, you know, there's 4 no formal requirement for radiology training in a 5 neonatology fellowship curriculum. So anything 6 they pick up they're going to pick up in a 7 setting like what we have here. And, you know, 8 it's going to vary from institution to 9 institution. So I don't know. 10 Q. Are there neonatologists that you work with in 11 this institution that routinely ask to see their 12 patient's films? Particularly when they're chest 13 x-rays? 14 A. Well, when you say ask to see their patient's 15 films, we review -- we don't have films anymore. 16 So they actually can see the images as soon as we 17 can see them. So we can all see them together on 18 different workstations up on the floor. And when 19 we dictate them, they can see the report right 20 away. 21 So we meet with them for 30 minutes a day, 22 but we don't have a lot of other discussion -- 23 contact throughout the day. They may call 24 occasionally, either for a specific film that 25 someone's having a problem with or to get advice 0080 1 on what study to do, but other than that 30 2 minutes per day, there's not a lot of dialogue 3 ongoing during the day. But that's because we 4 can read these studies on line during the day and 5 they can see it at the same time we're seeing it. 6 And once I've dictated something, they'll see the 7 study and the report. 8 Q. I wasn't envisioning that. So now I understand 9 what you're saying. And without having to come 10 down to the radiology department, if a 11 neonatologist wanted to see one of the 12 radiographic studies of one of his or her 13 patients, they could just go to the computers and 14 pull it up? 15 A. That's the usual scenario now. Somebody will 16 call and say "I'm looking at this abdominal film, 17 and I think I see this. What do you think?" 18 That's the kind of scenario. 19 Q. And, Dr. Sivit, do you accept as a general 20 proposition that there are other physicians 21 besides radiologists who are competent to read 22 chest x-rays? For example, an emergency 23 physician? 24 A. If you were to ask any of the emergency 25 physicians here, they would tell you they're not 0081 1 because they -- all of the emergency room studies 2 here are read by an attending, by a radiology 3 attending or a resident after it's taken. 4 No. I think there are many physicians who 5 may read, you know, films in a situation for 6 varying reasons, but I can't assess anybody -- 7 any individual's competence. But I can tell you 8 that radiology is the only field that has 9 specific dedicated training in how to read 10 different imaging modalities. Anybody else has 11 picked up some skills through their clinical 12 practice, but that's going to vary greatly from 13 individual to individual, and it would not be for 14 me to be able to generalize about whether they're 15 competent or not. 16 Q. And you raise another point, that there is the 17 element of clinical correlation with what a chest 18 x-ray would show. 19 A. Well, that's true. Although we're provided a 20 clinical history with every film. 21 Q. And that's why what you're being asked to do in 22 this case is out of the realm of your own 23 personal practice, correct? 24 MR. BULLOCH: Objection. 25 Q. Because you as a general matter in your own 0082 1 practice here at RB&C don't review films without 2 having any information at all about the patient, 3 correct? That's not how you do things? 4 MR. BULLOCH: Objection. 5 A. I would not review films without -- well, 6 occasionally, I do. Because occasionally, images 7 are taken where appropriate history is not 8 available at the time that I read it. To bill 9 for a case, we have to provide a clinical 10 history. So our system is such that we tell our 11 schedulers, our technologists that if the history 12 isn't provided to try to obtain it when they're 13 getting the film. Occasionally, a rare film 14 falls through the crack. But yes, my standard 15 practice, what I do day to day, is to have some 16 clinical history when I read the film. 17 Now, having said that, it's usually -- it can 18 be a fairly cursory history. You know, I could 19 get a film on a baby in the nursery, and it may 20 say 32 weeker with respiratory distress. There 21 may be a lot more history that is known about 22 that patient than I have. 23 Q. Well, you didn't even have that information in 24 this case? 25 A. That is correct. 0083 1 Q. So this is a very unnatural setting -- 2 A. Well, to answer that, can I see the exhibit of 3 the letters that I was sent? Because I do 4 have -- I do have whatever was on the 5 documentation. I just don't recall what was on 6 that. 7 Q. Here's Exhibit 2. 8 A. Okay. That doesn't have much. 9 But I think the letter that had the specific 10 questions -- I've forgotten exactly -- 11 Q. Here's Exhibit 6. 12 A. That's not it. 13 Q. That's your report. 14 Here we go. I've found it. 15 A. Yeah. I did not have anything beyond what was on 16 these films. 17 Q. So this was an entirely unnatural read for you 18 because, No. 1, you were reading copies of chest 19 x-rays, one of which was not a good copy, right? 20 A. Well, it wasn't unnatural in the sense that 21 virtually every -- well, every legal case I've 22 ever been involved with, it's been copies. I 23 don't get sent the originals. So I'm used to 24 reading copies. And I read copies in my practice 25 here because we get kids that are transferred 0084 1 from outside hospitals and I read copies there. 2 Q. Do you know who Mr. Bulloch represents and 3 Moscarino & Treu represents in this case? 4 A. They represent either Fairview Hospital or 5 physicians associated with Fairview. 6 Q. So presumably, they would be in a good position 7 to get the original films, correct? 8 A. Presumably. 9 Q. All right. So if you wanted to see the original 10 films in this case, they could have been made 11 available to you, correct? 12 A. I suppose. 13 Q. But you didn't ask for the originals even though 14 you were aware that one of the three -- I'm 15 sorry -- one of the four films you were provided 16 was a very dark reproduction? 17 A. I had mentioned that it was a dark reproduction, 18 but I did not feel that it was a significant 19 factor because it would not change my opinion 20 that there's a pneumomediastinum present and that 21 that's a pneumomediastinum versus a pneumothorax. 22 The only thing it could have changed would 23 have been with a very good quality film, that 24 whether I might have been -- whether I may be 25 able to see a very small pneumothorax. That 0085 1 would be it. Separate from this. In this case, 2 one could argue that if it was very small that it 3 may not have been clinically significant. And 4 plus, we have a film from a few hours later that 5 is a good quality film and shows again classic 6 findings of a pneumomediastinum and no 7 pneumothorax. 8 Q. Well, but you are essentially criticizing another 9 radiologist here in the community, correct? 10 MR. BULLOCH: Objection. I don't 11 think he criticized him. 12 Q. Of course you're criticizing. You're saying that 13 this radiologist that read those two films is 14 wrong, aren't you? 15 A. I don't think I ever criticized anyone. I 16 disagreed with their interpretations. 17 MR. BULLOCH: If you go back and 18 read the transcript, in all fairness, Pam, 19 he did not criticize. He used that word 20 very carefully. He did not criticize the 21 doctor. He said he didn't agree with him, 22 but he didn't criticize. Despite the fact 23 you want him to say he violated the 24 standard of care, he wouldn't even do that 25 for you. 0086 1 Q. I thought you told me that a reasonably competent 2 and careful radiologist would be able to read 3 that this is a pneumomediastinum? 4 A. I said that it could be challenging to a 5 physician -- I don't know whether I used the word 6 "challenging," but I did bring into the 7 discussion when you asked me that that this might 8 be difficult for someone who doesn't read a lot 9 of pediatric films because of the fact that one 10 of the principal findings here is separation of 11 the thymus from the heart, the thymic sail sign, 12 and adults and even teenagers aren't going to 13 have a thymus so you wouldn't see that sign. 14 So that was my way of really trying to state 15 to you that I think it's entirely possible that a 16 radiologist who practices general radiology, 17 doesn't practice a lot of pediatric radiology, 18 could look at this film, could see this abnormal 19 air collection, there's an abnormal air 20 collection in the chest, and could reach a 21 conclusion that this is a pneumothorax and not a 22 pneumomediastinum. I don't think I ever told you 23 that it was below -- that I thought it was below 24 the standard of care. 25 Q. Well, maybe you did; maybe you didn't. I mean 0087 1 that's not really the point, doctor. The point 2 is that we're here for -- 3 MR. BULLOCH: Well, no. 4 MS. PANTAGES: Come on, John. 5 Q. We're here for the truth. And the truth of the 6 matter is that this baby was transferred from 7 Parma Community Hospital to Fairview Hospital 8 because Fairview had a NICU and while the baby 9 was a patient in the NICU, this radiologist was 10 reviewing this baby's radiographic studies, and 11 presumably other patients in the NICU as well. 12 And are you telling me that this is a radiologist 13 at Fairview who is interpreting films for NICU 14 babies who doesn't know what to look for on a 15 premature infant's chest x-ray? 16 MR. BULLOCH: Objection. 17 Argumentative. 18 MS. PANTAGES: It's not 19 argumentative. 20 MR. BULLOCH: It is argumentative. 21 Pam, it didn't make any difference anyway. 22 So what? 23 MS. PANTAGES: John, you're 24 testifying. 25 A. I really can't assess their thought process, what 0088 1 they used to make the decision. I mean you say 2 we are here to seek the truth. I think the one 3 truth about this that I can tell you is that this 4 is a pneumomediastinum. 5 Q. So that's the truth. Why are you balking when I 6 say you're being critical of the radiologist who 7 actually read these films during the child's 8 hospitalization at Fairview? There's nothing 9 false in that statement. You're critical of this 10 interpretation that's in this child's record, are 11 you not? 12 A. I didn't say I was critical. I said that I 13 disagreed with the interpretation, that I think 14 the name it was given is incorrect. 15 Q. You think the radiologist is wrong, correct? 16 A. That what the radiologist stated in the report is 17 incorrect. 18 Q. So when someone tells you that you're wrong, do 19 you take that as criticism? I know I do. 20 A. Only my wife does it. 21 Q. I don't understand why we're belaboring this 22 issue. Criticism is criticism. We're all 23 grownups. We're all doing tough work. I mean 24 why are you reluctant to say you're critical? 25 You're critical. That's true, isn't it? 0089 1 MR. BULLOCH: I know you know the 2 answer to that. 3 MS. PANTAGES: I do. 4 Q. And I'd like you to be truthful as well. 5 MR. BULLOCH: I think the doctor 6 is being truthful. 7 A. I think that an error doesn't equate to something 8 falling below the standard of care. 9 Q. All right. 10 A. I mean in short, that's -- that's as short as I 11 can state it. I mean many hospitals now, many 12 radiology departments have quality improvement 13 programs. The American College of Radiology, for 14 instance, has a program that they've put out 15 where radiologists are able to evaluate each 16 other and evaluate their readings and second 17 readings of films throughout the department, and 18 many departments that do that find that there's 19 about a three to five percent discrepancy in how 20 one radiologist reads a study versus another. 21 I don't think that in the hospitals that do 22 that, it would be perceived as criticism to have 23 one radiologist disagree with another. I think 24 there are multiple reasons why people can 25 disagree. And, again, I think just because 0090 1 there's a disagreement doesn't mean you're being 2 critical of someone or criticizing someone. 3 Q. And someone can disagree with you in terms of 4 your interpretation of a film, correct? 5 A. Sure. 6 Q. And that isn't necessarily criticism, and it 7 isn't any other statement other than the fact 8 that they disagree with you, correct? 9 A. In general, yes. 10 Q. So you are of the opinion that the radiologist 11 who made the finding of the bilateral 12 pneumothorax in this child was incorrect; is that 13 correct? 14 A. That is correct. 15 Q. All right. I'm going to read to you from the 16 discharge summary that was dictated by 17 Dr. Lilien, who was the neonatologist who was 18 attending this child. 19 "Final diagnosis. No. 1. 2305-gram 35-week 20 infant, respiratory distress requiring 21 intubation. Extubated on 9-7 or day 15. 22 Received one dose of surfactant, period. 23 Bilateral pneumothorax requiring bilateral chest 24 tubes." 25 Dr. Lilien is incorrect also; is that true? 0091 1 A. Well, we do not have radiographic evidence in 2 this case of bilateral pneumothorax. 3 Pneumothoraces. So that part is the one part I 4 can disagree with. 5 Q. Is it your opinion in this case that there could 6 have been a bilateral pneumothorax, just not 7 documented on any of these films? 8 A. Yes. It would have to have -- that's the only 9 scenario I can see. 10 Q. And in your experience here at Rainbow, are 11 neonatologists competent to make the diagnosis of 12 a pneumothorax? 13 A. That is a generalization that I don't believe I 14 can answer. Because pneumothoraces can range 15 from small to large, and they have 15 or 20 16 neonatologists on staff here. And I think the 17 smaller the pneumothorax, the more difficult it 18 may be for some to diagnose. The larger the 19 pneumothorax, probably the easier it would be for 20 more people to diagnose. 21 Q. Because there's a clinical presentation -- there 22 are clinical signs and symptoms of a 23 pneumothorax, correct? 24 A. You're asking me are there clinical signs and 25 symptoms? 0092 1 Q. Yes. 2 MR. BULLOCH: Objection. 3 A. I can't tell you with any specificity what they 4 are, but I know that you can probably go to a 5 textbook and find specific signs and symptoms. 6 It's not something I deal with in my day-to-day 7 practice. 8 Q. I guess that's my question. Can you -- or are 9 you aware that a physician can make a clinical 10 diagnosis of pneumothorax? 11 A. They can attempt to make a clinical diagnosis. 12 They may not be correct. I think x-ray, it is 13 our gold standard. Although even there, we can 14 miss some. 15 I think if you were to compare the diagnostic 16 sensitivity and specificity through clinical 17 means alone and then you would compare it to 18 x-ray, you would find that it's less sensitive 19 and less specific. But I'm sure that it is at 20 times made that way. How often they overcall or 21 undercall I don't know. 22 Q. And you accept in this case that it's possible 23 that Dr. Lilien or other of the treating 24 clinicians of Matthew Wagoner had the capability 25 to make a clinical diagnosis of a pneumothorax? 0093 1 A. Well, I know none of the clinical record in this 2 case. So all I'm saying is it's theoretically 3 possible. Because I don't know what was done. I 4 don't know what was in their thinking and what 5 they did. I haven't even read any of the 6 clinical records. And even if I did, it may not 7 present everything that went through their minds. 8 So it's theoretically possible, but I have no 9 reason to think that that's why they did it or 10 not. 11 Q. And it's not your position or your opinion in 12 this case that just because there was no 13 radiographic evidence in your opinion of a 14 pneumothorax that pneumothorax didn't occur in 15 this case, correct? 16 MR. BULLOCH: Objection. 17 A. Could you reask that question? 18 Q. Sure. 19 Just because you don't have radiographic 20 evidence in your opinion of a pneumothorax in 21 Matthew Wagoner, it's not your opinion in this 22 case that he didn't have a pneumothorax, correct? 23 A. It is not my opinion -- I do not have the 24 opinion -- I do not have an opinion that he 25 didn't have a pneumothorax. I have an opinion 0094 1 that there is no radiograph that demonstrates a 2 pneumothorax. 3 Q. And whether or not he actually did have a 4 pneumothorax, you don't have an opinion one way 5 or another, correct? 6 A. Well, I don't have any opinion on something I 7 have no knowledge of. 8 Q. And are you aware that there is a different 9 clinical presentation of a pneumothorax versus 10 the clinical presentation of a pneumomediastinum? 11 A. Well, if you go to a textbook, that's what they 12 will state. 13 Q. And whether or not Matthew's clinical 14 presentation was more consistent with a 15 pneumothorax or whether his clinical presentation 16 was more consistent with a pneumomediastinum, you 17 don't have an opinion one way or another? 18 A. I do not have any opinion. 19 Q. All right. 20 Have you ever changed your impression or your 21 interpretation of a chest x-ray with respect to 22 the presence of a pneumothorax based upon the 23 clinical input that you got from the patient's 24 doctors? 25 A. I do not recall of a specific instance where I 0095 1 did based on that reason. 2 Q. Have you ever changed your interpretations of a 3 film in any circumstance radiographically when 4 you got additional clinical information from the 5 patient's doctor? 6 MR. BULLOCH: Objection. 7 A. I have amended reports, put addendums to them for 8 a variety of reasons over the years. It's 9 usually related to -- some of it is just 10 technical snafu. Somebody put the wrong label on 11 a film, right versus left, or there were more 12 images that I didn't see. Occasionally, someone 13 will bring to my attention that there was a 14 finger that wasn't described. You know, this 15 happens all the time in radiology practices. And 16 I can't give you a precise breakdown of reasons, 17 but I have amended reports. 18 Q. And is one of the explanations for Dr. Lilien's 19 conclusion in the final diagnosis in the -- well, 20 strike that. Let me ask the question a different 21 way. 22 You are of the opinion that Dr. Carey -- in 23 the interpretations of the chest x-rays where Dr. 24 Carey found evidence of bilateral pneumothorax, 25 those interpretations in your mind were 0096 1 incorrect; is that true? 2 A. That the interpretation of pneumothoraces? 3 Q. Yes. 4 A. Yes. 5 Q. With respect to Dr. Lilien's conclusion that 6 there were bilateral pneumothoraces in this child 7 that required bilateral chest tubes, is it -- 8 would you say that Dr. Lilien is incorrect or 9 would you accept that possibly Dr. Lilien is 10 correct because Dr. Lilien has clinical 11 information that you don't have? 12 MR. BULLOCH: Objection. You 13 don't know what Lilien was basing that on, 14 Pam. Come on. 15 A. I have no idea why he made that statement. So I 16 don't know. 17 Q. Well, I'm not sure that I understand the 18 objection. When a child is a patient at Rainbow 19 Babies & Children's, it's routine, is it not, for 20 someone who was involved in the child's care to 21 write a discharge summary? Correct? 22 A. Correct. 23 Q. And many babies are -- just as this baby was are 24 patients at Rainbow for unfortunately weeks at a 25 time, correct? 0097 1 A. Correct. 2 Q. So there's going to be a summary of all of the 3 findings at the end of the multiple-week period 4 where the final diagnoses are listed with some 5 specificity, correct? 6 A. Well, with some specificity is correct. The 7 question is what is specificity. I've read 8 discharge summaries before for research reasons 9 where I've disagreed with some of the things that 10 were put in there because they were at a conflict 11 with things that I had said. So I can't begin 12 to -- you know, to read somebody's thoughts with 13 respect to why they said what they said. 14 I mean I'm trying -- what I'm trying to do is 15 present the facts as I see them. And that really 16 goes into what do I think somebody else is 17 thinking. I don't know what purpose that serves. 18 Q. Oh, I'm not asking you what is Dr. Lilien 19 thinking. 20 MR. BULLOCH: Sure, you are. 21 MS. PANTAGES: John, you're being 22 obstructive, and that's not really 23 necessary. Let me ask my questions so we 24 can get this done and we can go home. 25 Q. You work in a very fine institution; do you not? 0098 1 Rainbow Babies & Children's, that's listed 2 routinely as one of the top children's hospitals 3 in the country, correct? 4 A. Okay. I will agree with that. 5 Q. And you're familiar with the recordkeeping and 6 the documentation requirements and everything 7 else that this institution places on you as one 8 of the physicians who has privileges here, 9 correct? 10 A. Correct. 11 Q. And the documentation responsibility that this 12 institution places upon you is that you be as 13 accurate and as complete and as truthful as 14 possible to the extent that you can with the 15 information that's made available to you when 16 you're charting something on one of your 17 patients, correct? 18 A. Well, the only thing I chart on one of my 19 patients is the radiology report. I don't do any 20 other charting. 21 Q. And my question stands as to that responsibility. 22 You understand that this institution expects you 23 when you chart to be complete and accurate and 24 truthful, correct? 25 A. Correct. 0099 1 Q. Do you think that that responsibility applies to 2 all of the physicians who practice at this 3 institution? 4 A. I would assume so. 5 Q. And would you hope that that expectation applies 6 to the physicians who are practicing at Fairview? 7 A. I would hope so. 8 Q. That in their charting, they are complete and 9 accurate and truthful to the extent they can be 10 with the information that they have? 11 A. That would certainly be the goal. 12 Q. Thank you. 13 How would the third film that we've been 14 talking about look different if there was a 15 pneumothorax? 16 MR. BULLOCH: I'm going to object 17 only because he's answered this already, 18 Pam. But go ahead. 19 MS. PANTAGES: Well, I didn't 20 understand the answer. 21 Q. So in lay terms, how -- you gave some medical 22 terms I think. In lay terms, how would the third 23 film look different? 24 A. Okay. I'm going to answer your question by 25 pointing out the fourth film because it's the 0100 1 same finding on both films, and it's a little 2 easier to show you on this film because it's a 3 little better quality. 4 So air in places that it shouldn't be, 5 whether it's the mediastinum or the pleural 6 space, is going to look black. Air in the lungs 7 looks black, too, but it looks different. When 8 air collects in the mediastinum, it's going to 9 surround mediastinal structures. So it separates 10 the thymus from the heart, surrounds the heart. 11 You can see it's darker, more lucent around the 12 heart on the right, a little bit on the left but 13 more so on the right. 14 When air is in the pleural space as it would 15 be in a pneumothorax, it's going to collect 16 around the periphery, around the periphery of the 17 lungs, and that's where it typically is. So what 18 it's going to do is if it's on one side alone, 19 it's going to collect laterally right next to the 20 ribs, which are these, you know, slender 21 structures, and it's going to displace lung 22 medially. So you're going to see air along the 23 periphery of the chest pushing lung and, if it's 24 big enough, pushing all other structures to the 25 other side. So if air collects along the medial 0101 1 aspects of the chest, that's what you see with a 2 pneumomediastinum. When you have a pneumothorax, 3 it collects laterally. 4 Also, when air collects symmetrically across 5 the midline -- so we have right and left, 6 thymus -- this is a pretty symmetrical 7 distribution of air across the midline, across 8 from one side to the other. That is also what 9 you get with a pneumomediastinum. 10 When you have a pneumothorax, it typically 11 collects on one side. You can have bilateral 12 pneumothoraces which can collect bilaterally, but 13 that is less common, and usually, you have 14 bilateral pneumothoraces. They tend to be 15 asymmetric. Usually, it's bigger on one side 16 than the other just through sheer chance alone. 17 Because when air is leaking into the 18 mediastinum, it's collecting in a central space 19 so it's going to have a symmetrical look. It's 20 going to look the same on the right as the left. 21 When air is leaking out into the pleural space, 22 just statistically, the chances of the same 23 amount of air collecting on both sides being 24 equal would be very low because it would have to 25 be a different process. It has to track with a 0102 1 different route. 2 So the symmetry of this, if you look at right 3 and left, it looks like you're seeing about the 4 same amount of lucency on both sides. That also 5 argues for a pneumomediastinum. Pneumothorax, 6 asymmetric. A lot more lucency or blackness on 7 one side. 8 So, again, to reemphasize, we have air 9 tracking, air separating mediastinal structures, 10 thymus, heart, air surrounding mediastinal 11 structures, heart, symmetrical air on both sides 12 of the midline. All those things argue for 13 pneumomediastinum. 14 What I would have expected to see with a 15 pneumothorax is I would want to see the air 16 laterally pushing the lung medially, seeing a 17 pleural line, and if it's bilaterally, if it's 18 bilateral, I would expect to see some asymmetry 19 from right to left. I'm not seeing any of those 20 things. 21 Also, if you have a big pneumomediastinum, 22 you start to get mass effect. It starts to push 23 stuff over. Nothing's being pushed. The heart's 24 right in the middle. The endotracheal tube's 25 right in the middle. So there's nothing being 0103 1 pushed. So there's not -- there's not any 2 question in my mind whatsoever that we're dealing 3 with pneumomediastinums here. That's what we 4 have. That's what we have. 5 Q. If you transilluminate a chest when there is a 6 pneumomediastinum, is it a positive 7 transilluminate or a negative transilluminate? 8 A. I have never transilluminated a chest myself. 9 That's not something that we radiologists do. So 10 I don't know the answer to that. 11 Q. So whether or not there was positive bilateral 12 transillumination in this case has no impact on 13 your opinion one way or another? 14 A. No. 15 - - - - 16 (Thereupon, Plaintiffs' Sivit Deposition 17 Exhibit 7, one-page Fairview x-ray 18 interpretation, was marked for purposes of 19 identification.) 20 - - - - 21 Q. Plaintiffs' Exhibit No. 7 is Dr. Carey's 22 interpretation of the fourth film that you just 23 interpreted for us, and I want to ask you if you 24 think that Dr. Carey's interpretation is correct 25 or incorrect? 0104 1 A. I think the following sentence is incorrect. 2 "There is residual pneumothorax, most pronounced 3 medially on the right, which is less pronounced 4 than on the earlier study of the same day." 5 So I disagree with that statement because I 6 believe we are dealing with a pneumomediastinum. 7 I do agree in the sense that I think the 8 pneumomediastinum is smaller. So in that 9 respect, the degree of air leak out into the 10 mediastinum is less. But, again, he or she is 11 characterizing this as a pneumothorax, and I'm 12 characterizing it as a pneumomediastinum. 13 Q. Whatever the process is, you and I can agree that 14 it's bilateral, correct? 15 A. We don't refer to pneumomediastinum as bilateral. 16 By definition, it is usually bilateral. It 17 straddles -- a pneumomediastinum straddles 18 midline and just by the nature of how that air 19 collects. 20 So we generally -- when we're reporting a 21 pneumomediastinum, we don't describe it as 22 unilateral or bilateral. It's accepted that if 23 it's a pneumomediastinum, you usually, but not 24 always, will see air on both sides of the 25 midline. 0105 1 Q. And that process on the third radiographic study 2 and on the fourth radiographic study crosses the 3 midline. The disease process is in both the 4 right and left lung fields, correct? 5 A. The pneumomediastinum is seen across both sides 6 of the midline. I would not characterize it as 7 you would because it actually doesn't -- the air 8 is not in the lungs themselves. So I wouldn't 9 call it in the lung fields. But you see it on 10 both sides of the midline. You see it to the 11 right of midline and to the left of midline. 12 Q. And you and I can agree hypothetically -- and I 13 understand that you disagree with the 14 interpretation, but hypothetically, if this is in 15 fact a pneumothorax that's visible on the third 16 and the fourth images, hypothetically, if that's 17 what we're seeing, it would be a bilateral 18 pneumothorax, correct? 19 A. There's no way that that could be a pneumothorax. 20 Q. I understand that. But hypothetically, if it 21 were a pneumothorax, it's not in one lung; it's 22 in two, right? 23 MR. BULLOCH: Objection. If I was 24 the Pope, I'd be in Rome. Come on. 25 THE WITNESS: Well, you could be 0106 1 traveling. 2 A. But, you know, that's not -- I don't like that 3 question because you're saying if it's this, 4 which is something I obviously disagree that it's 5 not. I'm not sure what -- 6 Q. Well -- 7 A. It's not a pneumothorax. 8 Q. I understand that. But I'm allowed to ask you 9 hypothetical questions. 10 A. Sure. 11 MR. BULLOCH: And he's allowed to 12 answer the way he wants, and that's what 13 he's doing. 14 A. Ask me the hypothetical question again. 15 Q. Hypothetically, if what we are seeing as a 16 disease process in terms of its location on the 17 third and the fourth radiographic studies -- 18 hypothetically, based on its location alone, 19 would you agree that that would be a bilateral 20 pneumothorax? 21 A. I would disagree. Because based on the location 22 alone, that could not be a pneumothorax. 23 Q. All right. So you can't accept under any 24 circumstances a hypothetical with respect to a 25 pneumothorax in either of those positions? 0107 1 A. No. 2 Q. And you and I can at least at a minimum agree 3 that it's a disease process that is present on 4 both sides of the midline, correct? 5 A. Correct. 6 Q. Are you aware from your own experience as a 7 radiologist from what you know about the disease 8 entity of a pneumothorax that a bilateral 9 pneumothorax is much more severe and poses much 10 greater risks to a child than a single 11 pneumothorax? 12 MR. BULLOCH: Objection. 13 A. No. I disagree with that also. Because I have 14 seen small bilateral pneumothoraces that aren't 15 even treated, and I've seen plenty of unilateral 16 large pneumothoraces that cause mass effect and 17 tension and can be very serious. So I think the 18 significance of the possible consequences of a 19 pneumothorax has to do with its size and not 20 whether it's on one side versus two. 21 Q. So if it's a big bilateral pneumothorax, would 22 you agree that that's worse than a big unilateral 23 pneumothorax? 24 A. Well, I would say a big pneumothorax is 25 potentially worse than a small pneumothorax. 0108 1 Q. Yes. And how about a big pneumothorax that's 2 present in both the right and the left lung at 3 the same time versus a big pneumothorax that's 4 present on just one side? 5 A. I am just not aware of literature that backs that 6 up. There may be, but it's just not in the 7 mainstream of what would be published in 8 radiology literature. So I don't know whether 9 that's a correct statement or not. 10 Q. You can't comment on it one way or another? 11 A. Correct. 12 Q. I'd like to mark these as exhibits if we can. 13 These are from your file, correct? 14 A. Yes. 15 Q. I think, if you don't have any objection, I'd 16 like to put exhibit stickers on them and then 17 I'll just give the films back to you. 18 MR. BULLOCH: I'm going to object. 19 I don't understand why you feel you need to 20 mark these as exhibits, Pam. 21 MS. PANTAGES: Because we've been 22 talking about them generally as the first, 23 second and third and fourth of the series, 24 and I just want to have them 25 chronologically marked. 0109 1 MR. BULLOCH: And he's identified 2 those earlier, what dates and where those 3 films were from. If these films go 4 anywhere, then they're going to go on to 5 the court reporter and then back to me to 6 give back to Dr. Sivit. They're not going 7 to come in your possession at any time. I 8 would have to have that agreement. 9 MS. PANTAGES: I never -- I said 10 I'll mark them with stickers and give them 11 back to you. 12 MR. BULLOCH: Okay. That's fine. 13 MS. PANTAGES: Isn't that what I 14 said? At least that's what I thought I 15 said. If I didn't say it clear, that's 16 what I thought. 17 MR. BULLOCH: And if you did, I 18 apologize. 19 MS. PANTAGES: That's all right. 20 Lynn, can we do that? Can we mark 21 the four films? 22 - - - - 23 (Thereupon, Plaintiffs' Sivit Deposition 24 Exhibit 8, 8-24-99 Parma Community Hospital 25 x-ray, was marked for purposes of 0110 1 identification.) 2 - - - - 3 (Thereupon, Plaintiffs' Sivit Deposition 4 Exhibit 9, 8-24-99 Fairview Hospital x-ray, 5 was marked for purposes of identification.) 6 - - - - 7 (Thereupon, Plaintiffs' Sivit Deposition 8 Exhibit 10, 8-25-99 Fairview Hospital x-ray, 9 as marked for purposes of identification.) 10 - - - - 11 (Thereupon, Plaintiffs' Sivit Deposition 12 Exhibit 11, 8-25-99 Fairview Hospital x-ray, 13 was marked for purposes of identification.) 14 - - - - 15 Q. Doctor, could you identify for us those exhibits 16 that we've marked, please. 17 A. Okay. We have Exhibit 8, which is an AP chest 18 x-ray from 8-24-99 from Parma Community Hospital. 19 There's a number written here, 1430, which may be 20 the time it was taken. I'm not sure. 21 Exhibit 9 is a film from 8-24-99, 2126 hours 22 from Fairview Hospital, another AP chest. 23 Exhibit 10 is an AP chest from Fairview 24 Hospital dated 8-25-99, 1924 hours. 25 And Exhibit 11 is an AP chest x-ray from 0111 1 Fairview Hospital dated 8-25-99, 2352 hours. 2 Q. And would you agree with me that Plaintiffs' 3 Exhibit No. 5 corresponds to Plaintiffs' 4 Exhibit No. 9? That's the report for that film? 5 A. Let's see. 8-24. 6 Yes. 7 Q. And Plaintiffs' Exhibit 6 corresponds to 8 Plaintiffs' Exhibit No. 10 in terms of that's the 9 report for that film? 10 A. Yes. 11 Q. And Plaintiffs' Exhibit 7 corresponds as the 12 report for Plaintiffs' Exhibit 11, correct? 13 A. That is correct. 14 Q. And would you agree with me that of those three 15 reports, Dr. Carey was the radiologist who 16 interpreted all three reports? 17 Or I'm sorry. Let me ask the question again. 18 I said it wrong. 19 You would agree with me that Dr. Carey is the 20 radiologist at Fairview who had interpreted all 21 three of those films, Exhibit 9, Exhibit 10 and 22 Exhibit 11? 23 A. That is correct. 24 Q. Dr. Sivit, have we discussed all of the opinions 25 that you hold in this case or have I omitted to 0112 1 ask you any questions? 2 A. I believe we've discussed them all. 3 Q. Do you want to take a moment to review your 4 report and just make sure that we've talked about 5 all of the issues in the case? 6 A. Yes. We've discussed all the opinions that I 7 stated in my report and all of the opinions that 8 I have on this case. 9 Q. All right. And to the extent that you formulate 10 any new opinions between now and the time of 11 trial, I'd like you to let Mr. Bulloch know so I 12 have the opportunity to reopen this deposition. 13 And to the extent that I reserve the right 14 with respect to the issues raised with your CV, I 15 believe that I'm finished. 16 MR. BULLOCH: Okay. Doctor, you 17 have the right to review this deposition 18 transcript. I would recommend that you do 19 that. 20 THE WITNESS: Yes. 21 22 _________________________ CARLOS J. SIVIT, M.D. 23 24 25 0113 1 C E R T I F I C A T E 2 3 The State of Ohio, ) SS: County of Cuyahoga.) 4 5 I, Lynn D. Thompson, a Notary Public within 6 and for the State of Ohio, authorized to administer oaths and to take and certify 7 depositions, do hereby certify that the above-named witness was by me, before the giving 8 of their deposition, first duly sworn to testify the truth, the whole truth, and nothing but the 9 truth; that the deposition as above-set forth was reduced to writing by me by means of stenotypy, 10 and was later transcribed into typewriting under my direction; that this is a true record of the 11 testimony given by the witness; that said deposition was taken at the aforementioned time, 12 date and place, pursuant to notice or stipulations of counsel; that I am not a relative 13 or employee or attorney of any of the parties, or a relative or employee of such attorney or 14 financially interested in this action; that I am not, nor is the court reporting firm with which I 15 am affiliated, under a contract as defined in Civil Rule 28(D). 16 IN WITNESS WHEREOF, I have hereunto set my 17 hand and seal of office, at Cleveland, Ohio, this _____ day of ______________, A.D. 20_____. 18 19 ____________________________________________ Lynn D. Thompson, Notary Public, State of Ohio 20 1750 Midland Building, Cleveland, Ohio 44115 My commission expires January 24, 2010 21 22 23 24 25