1 1 IN THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, PENNSYLVANIA 2 DAVID RAY, et al., CIVIL DIVISION 3 Plaintiffs, 4 vs. CASE NO. 185632 5 KIM STEARNS, M.D., 6 et al., DEPOSITION TRANSCRIPT OF: 7 Defendants. DEAN G. SOTEREANOS, M.D. 8 9 DEPOSITION DATE: April 6, 2001 10 Friday, 8:00 a.m. 11 12 PARTY TAKING DEPOSITION: Plaintiffs 13 14 COUNSEL OF RECORD 15 FOR THIS PARTY: Tobias J. Hirshman, Esq. 16 LINTON & HIRSHMAN Hoyt Block, Suite 300 17 700 West St. Clair Avenue Cleveland, Ohio 18 44113-1230 19 20 REPORTED BY: JoAnn M. Brown, RMR 21 Notary Public AKF Reference No. JB64513 22 23 24 25 2 1 DEPOSITION OF DEAN G. SOTEREANOS, M.D., a witness, called by the Plaintiffs for examination, 2 in accordance with the Ohio Rules of Civil Procedure, taken by and before JoAnn M. Brown, RMR, a Court 3 Reporter and Notary Public in and for the Commonwealth of Pennsylvania, at the offices of 4 Dean G. Sotereanos, M.D., Kaufmann Building, Suite 1010, 3471 Fifth Avenue, Pittsburgh, Pennsylvania 5 15213, on Friday, April 6, 2001, commencing at 8:25 a.m. 6 7 - - - - 8 APPEARANCES: 9 FOR THE PLAINTIFFS: 10 Tobias J. Hirshman, Esq. LINTON & HIRSHMAN 11 Hoyt Block, Suite 300 700 West St. Clair Avenue 12 Cleveland, Ohio 44113-1230 216-781-2811 13 FOR THE DEFENDANTS: 14 Ronald M. Wilt, Esq. BUCKINGHAM DOOLITTLE & BURROUGHS, LLP 15 1375 E. 9th Street Suite 1700 16 Cleveland, Ohio 44114 216-621-5300 17 18 19 20 21 22 23 24 25 3 1 * I N D E X * 2 Examination by Mr. Hirshman - - - - - - - - - - 4 3 Certificate of Court Reporter - - - - - - - - - 69 Errata Sheet - - - - - - - - - - - - - - - - - - 70 4 Notice of Non-Waiver of Signature - - - - - - - 71 5 6 7 8 9 10 * INDEX OF EXHIBITS * 11 Deposition Exhibit 1 - - - - - - - - - - - - - - 21 12 Deposition Exhibit 2 - - - - - - - - - - - - - - 22 Deposition Exhibit 3 - - - - - - - - - - - - - - 23 13 Deposition Exhibit 4 - - - - - - - - - - - - - - 34 Deposition Exhibit 5 - - - - - - - - - - - - - - 53 14 15 16 17 18 19 20 21 22 23 24 25 4 1 - - - - 2 DEAN G. SOTEREANOS, M.D., 3 having been duly sworn, 4 was examined and testified as follows: 5 - - - - 6 EXAMINATION 7 - - - - 8 BY MR. HIRSHMAN: 9 Q. Good morning. 10 A. Good morning. 11 Q. I'm Toby Hirshman, and I represent the 12 plaintiffs in this medical malpractice case 13 that you've been retained as an expert in. I'm 14 going to be asking you a series of questions 15 about this case and your review of it, if I 16 may. 17 Let's start by having you state on 18 the record what your full name is. 19 A. Dean George Sotereanos. 20 Q. And your profession? 21 A. Orthopedic upper extremity surgery. 22 Q. And when you say upper extremity surgery, what 23 does that entail? 24 A. That entails surgery from the fingertip to the 25 shoulder as well as occasional procedures that 5 1 I do on the hip involving microvascular free 2 tissue transfer for avascular necrosis which is 3 a different topic altogether. 4 Q. Okay. I'm looking -- we're sitting in your 5 office, I take it? Is this your office? 6 A. Yes. 7 Q. Okay. So these books that I'm looking at on 8 your shelves are books that you consult from 9 time to time in your practice? 10 A. When necessary, yes. 11 Q. I see is it Piemer up there, Surgery of the 12 Hand and Upper Extremity? 13 A. Yes. 14 Q. That's a book that you will consult from time 15 to time in your practice? 16 A. I wrote a chapter in that book. It was given 17 to me. 18 Q. Okay. And The Journal of Hand Surgery is a 19 publication that you will refer to from time to 20 time? 21 A. Correct. Yes. 22 Q. And I also see you have Herndon's text up 23 there, Surgical Reconstruction of the Upper 24 Extremity. Is that a text that you will refer 25 to from time to time? 6 1 A. I also wrote a chapter in that book, so it was 2 given to me. 3 Q. Okay. Hunter, I saw it, now I've lost it, you 4 have a text up there as well that you're in 5 possession of, I believe. What's the name of 6 that text? 7 A. Rehabilitation. 8 Q. Hunter Rehabilitation? 9 A. Yes. 10 Q. Where is that? I lost it. 11 A. My residents are always pulling my books. 12 Q. Well, they haven't been in here since I saw it, 13 so it's got to be up there somewhere. 14 A. Right here. Rehabilitation of the Hand. 15 Q. Do you consult that from time to time as well? 16 A. Very rarely do I consult that book. 17 Q. How about Green's Operative Hand Surgery? 18 A. Quite frequently for unusual cases. 19 Q. And Ulnar Peripheral Nerve Problems, is that a 20 text that you consult? 21 A. When necessary. All of these text I consult 22 when necessary. 23 Q. Okay. Let's talk a little bit about your area 24 of subspecialization which is upper -- you're 25 an upper extremity specialist. Is that an 7 1 appropriate way to describe your area of 2 subspecialization? 3 A. Yes. 4 Q. Okay. Tell me a little bit about what, if any, 5 insight your area of subspecialization gives 6 you in dealing with issues such as ruptures of 7 the biceps tendon in patients that present to 8 you as opposed to the ordinary run-of-the-mill 9 orthopedics? 10 A. Well, my practice is somewhat unique in that I 11 trained in hand and microvascular surgery, but 12 I've always retained an interest in general 13 orthopedics, and biceps ruptures are a general 14 orthopedist-type of procedure. It's not a 15 subspecialist-type of procedure. 16 Q. So there is nothing in your specific training 17 as an upper extremity specialist that gives you 18 insights and competence in dealing with these 19 problems that a general orthopedist wouldn't 20 have? 21 A. Most general orthopedists -- in fact, I would 22 venture to say all general orthopedic surgeons 23 do biceps tendon repairs. An upper extremity 24 specialist such as myself, some upper extremity 25 surgeons do not do biceps tendon repairs 8 1 because it's outside of the hand. So it varies 2 from individual to individual. 3 Q. I note that you've done a significant number of 4 these repairs, at least -- I've been able to 5 establish that you've done at least 18. I see 6 18 that you've done from 1992 to 1996, and I 7 presume you've continued to do them since 1996. 8 Can you give me some -- well, first of all, let 9 me ask you this: I presume you're familiar 10 with your article that discusses this repair? 11 A. Correct. 12 Q. Using -- 13 A. Anchors. 14 Q. -- anchors. Suture anchors. You discuss some 15 18 cases in that time span that I mentioned. 16 Is that the entire experience that you had in 17 that particular time span with this rupture? 18 A. I take it it probably was, yes. 19 Q. Okay. So all the ruptures that you repaired -- 20 A. There may have been some people not included 21 because we couldn't find them for follow-up. 22 Q. So this was a follow-up study? 23 A. Yes. 24 Q. This was not in any way a double-blind 25 randomized study? This was a collection -- 9 1 A. Retrospective study. 2 Q. -- retrospectively? Okay. So, to the best of 3 your knowledge, from 1992 to 1996, you had 18 4 biceps ruptures that you repaired operatively? 5 A. Correct. 6 Q. And all of this were repaired with this suture 7 anchor approach? 8 A. Yes. 9 Q. Have you ever utilized -- and the suture anchor 10 approach, as I understand it, is a 11 single-incision approach, but it's not the 12 traditional single-incision approach? 13 A. Correct. 14 Q. All right. And the difference is with the 15 suture anchors, you're not required to do 16 anywhere near as much retraction of tissue in 17 order to tunnel through the arm in order to get 18 to the tuberosity of the radius and drill 19 holes? 20 A. It's less dissection, correct. 21 Q. Okay. And with less dissection, you have found 22 that there is indeed less -- in fact, you've 23 had no experience of an injury to the posterior 24 interosseous nerve associated with the cases 25 that you've done; is that a fair statement? 10 1 A. I personally have not had any injuries to the 2 nerve, although the literature -- in the old 3 literature, one of the criticisms was that it 4 did create injury. So there is controversy 5 about that, but I have not had any myself. 6 Q. When you say the old literature, you're 7 referring to the literature that precedes the 8 use of suture anchors where holes were drilled 9 in the radius and an additional amount of 10 retraction needed to be done? That's the 11 literature that documents a risk of posterior 12 interosseous nerve palsy, correct? 13 A. Correct. 14 Q. Okay. So, with your approach being the use of 15 suture anchors in a single-incision approach, 16 you have not found there to be any injuries in 17 the patients that you've treated to the 18 posterior interosseous nerve? 19 A. That's correct. 20 Q. All right. And indeed that's probably one of 21 the reasons why you've chosen to use that 22 procedure? 23 A. I've done it every way that there is. There's 24 different reasons why people have problems. 25 Q. Okay. So you've done it -- you've done repairs 11 1 to the distal biceps -- you've done repairs of 2 complete ruptures to the distal biceps tendon 3 using the traditional single-incision approach; 4 you've done them using the approach of Boyd and 5 Anderson, which is a two-incision approach? 6 A. I would say the Boyd and Anderson approach is 7 the traditional approach in orthopedics, and 8 the one-incision approach is the untraditional 9 approach in orthopedics. 10 Q. Well, prior to Boyd and Anderson, they were 11 using the single-incision approach, I take it? 12 A. That was a guy named Dobie in 1962, although he 13 had a high incidence of nerve injuries. 14 Q. All right. And Boyd and Anderson's approach 15 which precedes the suture anchors, I presume -- 16 is that a fair statement? 17 A. Yes. 18 Q. Boyd and Anderson's approach was implemented, 19 in large part, to avoid the injuries to the 20 posterior interosseous nerve that were 21 associated with the prior single-incision 22 approach, fair statement? 23 A. Correct. 24 Q. And the Boyd and Anderson approach is what was 25 used in this case by Dr. Stearns, is that your 12 1 understanding? 2 A. Correct. 3 Q. And the Boyd and Anderson approach that was 4 used by Dr. Stearns, has been documented to be 5 an approach which is successful without causing 6 injury to the posterior interosseous nerve? 7 A. That's not correct. 8 Q. It's not? 9 A. There can be injuries to the posterior 10 interosseous nerve even with the Boyd and 11 Anderson approach. There's no procedure in the 12 elbow that is guaranteed not to create nerve 13 injury. 14 Q. There aren't any guarantees in medicine, fair 15 statement? 16 A. Correct. 17 Q. There's no guarantee in medicine that you won't 18 have a negligent act performed during the 19 course of a procedure, correct? 20 A. I'm sure in some circumstances, correct. 21 Q. In fact, I'm looking at your article entitled 22 Simplified Method for Repair of Distal Biceps 23 Tendon Ruptures which you published in the year 24 2000. I presume you're familiar with it? 25 A. Yes. 13 1 Q. In there on page 227 you said, Boyd and 2 Anderson describes the two-incision technique 3 for reinsertion of the biceps tendon to the 4 radial tuberosity. I'm in column 2 of the 5 first page. 6 A. Um-hum. 7 Q. The results were excellent for -- the results 8 were excellent with no neurologic sequelae. 9 A. Correct. 10 Q. You don't dispute what you wrote there, I take 11 it? 12 A. I don't dispute what I said about Boyd and 13 Anderson. Correct. 14 Q. Okay. And other studies have confirmed that as 15 well, that the results that should be 16 anticipated with the Boyd and Anderson approach 17 are excellent without injury to the posterior 18 interosseous nerve? 19 A. The Boyd and Anderson approach has some very 20 well-known complications such as synostoses 21 between the radius and the ulna proximally, and 22 there are some other -- there are neurologic 23 complications as well with the Boyd and 24 Anderson approach. 25 Q. None that you've had? 14 1 A. Not that I've had, no. 2 Q. How many Boyd and Anderson cases have you done? 3 A. I did many as a resident. 4 Q. You did your residency in, I think, was it 5 Duke? 6 A. I did my fellowship at Duke and my residency 7 here at the University of Pittsburgh. 8 Q. So approximately how many distal biceps tendon 9 rupture repairs have you done during your 10 residency and thereafter? 11 A. Through my whole residency, probably 10 or 11. 12 Q. Ten or 11 with the two-incision approach? 13 A. Two-incision. 14 Q. And in none of those did you have a permanent 15 palsy of the posterior interosseous? 16 A. Not that I'm aware of, although, as a resident, 17 you're not privy to follow-up. So you're in 18 the OR a lot of times and the case is 19 completed, and you don't see the patient again. 20 Q. Okay. 21 A. Depending on what service you're on. 22 Q. Well, if a permanent injury to the posterior 23 interosseous nerve were to have resulted from a 24 case that you were involved in performing 25 surgery on, I presume, within the ordinary 15 1 course of your training, that would be 2 something that you would anticipate having 3 brought to your attention, if for no other 4 reason, so that you could try to rehash how you 5 did it and learn from it. Fair statement? 6 A. That's correct. 7 Q. All right. So in any sort of a competent 8 training program, which I'm sure yours was, the 9 likelihood is that that type of an injury 10 during a biceps tendon repair would have been 11 brought to your attention? 12 A. Correct. 13 Q. All right. 14 A. Well, not would have been brought to my 15 attention. The likelihood is that there won't 16 be a nerve injury, but there are circumstances 17 where you will have nerve injury even without a 18 negligent act. 19 Q. But had that occurred during the course of your 20 training -- 21 A. Not in my experience, no. 22 Q. And you would have anticipated that if that had 23 occurred, one way or the other, it would have 24 been brought to your attention? 25 A. Not necessarily. I don't always go to my 16 1 residents and say we had a complication during 2 the procedure. It may be that I don't see the 3 resident again for six months, and the 4 patient -- it just dissolves in time. 5 Q. So this much we can say: You're not aware of 6 any such injuries having occurred while you 7 were performing a biceps tendon repair using 8 the two-incision approach of Boyd and Anderson? 9 A. That's correct. 10 Q. And you can say also that you've had no such 11 injuries occur while using your technique that 12 you've described in this article we're looking 13 at? 14 A. That's correct. 15 Q. Okay. And you've also done single-incision 16 approaches without suture anchors, or no? 17 A. I believe earlier in my career I did, yes. 18 Q. Can you tell me about how many of those you 19 did? 20 A. Maybe five or six. 21 Q. And do you recall having any such posterior 22 interosseous nerve injuries from those 23 traditional single-incision procedures that you 24 performed? 25 A. I personally had no posterior interosseous 17 1 nerve injuries in any of the procedures that I 2 personally have performed, although I've 3 treated posterior interosseous nerve injuries 4 referred in from other people. 5 Q. All right. 6 A. For both approaches performed. 7 Q. Both approaches meaning which? 8 A. One-incision and two-incision. 9 Q. And I presume from time to time you treat 10 patients who have been treated in what you 11 would regard as substandard care as well? 12 A. It's hard to say when you're not there. 13 Q. Okay. If you were to give me the total number 14 of distal biceps tendon ruptures that you've 15 repaired over your career, what would that 16 number be? 17 A. I would approximate 40 to 50. 18 Q. Okay. In the universe of distal biceps tendon 19 ruptures, would it be fair to say that there 20 are few orthopedic surgeons who have had that 21 many cases? 22 A. Yes. 23 Q. So you have certainly more than you would 24 expect the typical general orthopedic surgeon 25 to see? 18 1 A. That's correct. 2 Q. Can you tell me why that would be if this isn't 3 an area that's within the area of expertise of 4 upper extremity orthopedists? 5 A. Well, I do three to four times the number of 6 cases that the average orthopedic surgeon does, 7 which could be one reason. 8 Q. Okay. 9 A. And the other reason is my focus is only on 10 upper limb surgery. 11 Q. Would you -- do you have any insight into the 12 local figures, I guess is all I can ask you 13 for, something you'd be familiar with, as to 14 what percentage of these ruptures are done by 15 upper extremity specialists as opposed to 16 general orthopedists? 17 A. Based on my experience, they're done by general 18 orthopedists. Quite often as a resident, 19 that's who thought me how to do it. 20 Q. Aside from the initial let's call it the 21 traditional single-incision approach, the Boyd 22 and Anderson two-incision approach and the 23 suture anchor approach that we've discussed, 24 are there any other operative approaches that 25 you've used to deal with this entity? 19 1 A. There's variations of both of those, but there 2 are no other approaches that I'm aware of. 3 Q. Okay. So those would be the three types of 4 procedures you performed in doing your 40 to 50 5 cases? 6 A. Correct. 7 Q. What have you had an opportunity to review in 8 preparing your opinions in this case? 9 A. I've reviewed the records that were sent to me 10 by Attorney Wilt. 11 Q. Do you have them in front of you? 12 A. Yes. 13 Q. Can I take a look at what it is that you've had 14 an opportunity to review? 15 A. Right there. 16 Q. Okay. I'm looking at some yellow tabs that 17 appear in the records. Are those tabs that you 18 placed? 19 A. Yes. 20 Q. So you've had an opportunity to look at the 21 medical records from Elyria Medical Clinic, 22 Lutheran Hospital, John Gerace, Kim Stearns and 23 the Crystal Clinic which are Dr. Keljka's 24 records, correct? 25 A. Yes. 20 1 MR. WILT: He does not have 2 Dr. Keljka's most recent report, and I will 3 provide that to him, but he's not reviewed that 4 at this time. 5 Q. All right. You've also had an opportunity to 6 look at your own report. The deposition of 7 David Ray, have you reviewed that? 8 A. Yes. 9 Q. Any other depositions that you reviewed? 10 MR. WILT: Dr. Stearns. 11 A. Yes, Dr. Stearns as well. 12 Q. Any others? 13 A. Not that I'm aware of. 14 Q. Okay. You've also had an opportunity to look 15 at the Lutheran medical records for Mr. Ray's 16 rehab, but I think that may be -- 17 MR. WILT: It's duplicative. 18 Q. All right. I also note an article entitled 19 Distal Biceps Tendon Injuries: Diagnosis and 20 Management by Matthew Ramsey, M.D. 21 A. Those were not provided to me. I placed those 22 there by accident. I reviewed some of the 23 recent literature. 24 Q. Okay. Can you tell me what it is that you 25 reviewed in the recent literature? 21 1 A. Just a few of the most recent articles that 2 came out, one of which was from Dr. Ramsey from 3 the University of Pennsylvania. 4 Q. This is from the American Academy of 5 Orthopedic -- this is from the Journal of the 6 American Academy of Orthopedic Surgery? 7 A. Correct. 8 MR. HIRSHMAN: I'll mark this as 9 Sotereanos Exhibit 1 if I could. 10 - - - - 11 (Deposition Exhibit No. 1 marked for 12 identification.) 13 - - - - 14 A. I also reviewed some abstracts. 15 Q. You indicated you reviewed some abstracts. Do 16 you have those here? 17 A. Not all of them. I have a few of them. 18 Q. Can I see what it is you have in terms of other 19 literature besides the Ramsey article? 20 A. There are papers that I reviewed in journals 21 that I didn't copy, but that's some of the 22 extra ones. 23 Q. In other words, you actually looked at the 24 journal articles? 25 A. Correct. 22 1 Q. But copied the abstracts off the Internet? 2 A. Yes. 3 Q. Besides these abstracts, do you have any other 4 literature that you reviewed? 5 A. No. 6 MR. HIRSHMAN: Let's mark these as 7 Exhibit 2 through whatever. 8 - - - - 9 (Deposition Exhibit No. 2 marked for 10 identification.) 11 - - - - 12 BY MR. HIRSHMAN: 13 Q. Rather than mark each of the abstracts 14 separately, I've asked the Court Reporter to 15 mark them collectively as Sotereanos Exhibit 2. 16 I'm going to show you a document 17 that's dated October 10, 2000, and it's a 18 letter from Ron Wilt which we will have marked 19 as Exhibit 3. Is that the initial letter that 20 you received from Mr. Wilt? 21 A. Yes. 22 Q. And is that your underlining there? 23 A. I believe it is. I'm not positive of that. 24 MR. WILT: I can assure you it's not 25 mine. 23 1 A. Yes. 2 MR. WILT: Actually, that's not even 3 my signature, so there's some bad grammar in 4 there that I do not take credit for. 5 A. I don't recall if I specifically underlined 6 that or not, but it's -- 7 Q. Does anybody in your -- 8 A. My secretary screens my mail. Sometimes I ask 9 her to get to the bottom line of things since 10 I'm very busy, and she'll underline something, 11 but it's not always correct. 12 Q. So you can't tell me whether that is your 13 secretary or you that underlined that? 14 A. I can't tell you for certain. It's probably 15 me, but I can't tell you for certain. 16 MR. HIRSHMAN: Let's mark that as 17 Exhibit 3. 18 - - - - 19 (Deposition Exhibit No. 3 marked for 20 identification.) 21 - - - - 22 BY MR. HIRSHMAN: 23 Q. Did you review any of your own writings as it 24 relates to this case? 25 A. No. 24 1 Q. And you have in front of you still a set of 2 documents that looks like your notes. Is that 3 what that is? 4 A. Yes. 5 Q. Can I look at those for a moment? 6 A. Yes, you may. These are notes that I scratched 7 out. You may not be able to read them. 8 Q. Okay. When did you write these? 9 A. At the time when I reviewed some of the 10 original records. 11 Q. Do you know Dr. Stearns? 12 A. No. 13 Q. Have you ever worked with Mr. Wilt before? 14 A. No. 15 Q. Have you ever done a fascia lata graft? 16 A. Yes. 17 Q. On how many occasions? 18 A. I did one yesterday. 19 Q. Maybe I should be more clear in my question. 20 Have you ever done a fascia lata 21 graft to repair a distal biceps tendon rupture? 22 A. Yes. 23 Q. Is that what you did yesterday? 24 A. Yesterday we used a fascia lata allograft. 25 Q. Meaning? 25 1 A. Meaning something from a cadaver. 2 Q. Right. To fix a biceps tendon rupture? 3 A. Yes. 4 Q. Chronic, I presume? 5 A. Correct. 6 Q. How many chronic -- I notice in your 7 writings -- 8 A. It was about eight in our paper. Eight 9 chronics. 10 Q. In fact, it was ten. 11 A. Well, there were two that we didn't do repairs 12 on that we just transferred to the brachialis 13 in that series. 14 Q. There was a series of 16 cases. 15 A. Sixteen that we actually performed the repairs. 16 Q. And 18 that you saw? 17 A. Correct. 18 Q. Actually, it was 18 that you operated on. Ten 19 of them were chronic. 20 A. Two of which we did transfers on. 21 Q. Correct. 22 A. Correct. 23 Q. Ten of them were chronic; eight of them were 24 acute? 25 A. Yes. 26 1 Q. And you defined acute, if I understood your 2 article correctly, as anything less than six 3 weeks? 4 A. Six weeks. 5 Q. That's your definition that you work with 6 within your practice? 7 A. Well, it depends on -- by the literature 8 standards, six weeks is acute, less than six 9 weeks. In biceps tendon, some people even 10 write two weeks. In my experience, if the 11 tendon is present when I go in and repair it, 12 I'll repair it without any allograft, and I've 13 been able to accomplish that, my series, very 14 often without the use of allograft, even with 15 people up to eight months out from the injury. 16 Yesterday was a patient that was nine months 17 out that had no tendon left, so we had to use 18 an allograft. 19 Q. But in your paper describing your experience 20 with 18 patients, you were able to achieve a 21 primary repair in all but two of the patients 22 you saw, correct? 23 A. Correct. 24 Q. And of those that were described as acute, 25 those were people -- 27 1 A. Less than six weeks. 2 Q. -- less than six weeks. All of them you were 3 able to repair primarily, correct? 4 A. Yes, except for the two that we did transfers 5 on to the brachialis muscle. 6 Q. The two that you did transfers on, if I 7 understood your paper correctly, were not the 8 acute but the chronic? 9 A. They were chronic. Yes. 10 Q. Right. And those chronic ones -- so eight out 11 of ten -- the two that you couldn't repair, you 12 didn't just open and close, you took their 13 tendon and attached it to where, to the 14 brachialis? 15 A. To the brachialis muscle. That's a known 16 procedure mainly to alleviate pain, but knowing 17 that you won't restore motion or power. 18 Q. Can you tell me how stale, how far out those 19 two cases were that you had to treat in that 20 fashion? 21 A. Both were greater than a year out. 22 Q. All right. 23 A. And they weren't interested. Their problem was 24 mainly pain in the antecubital fossa, and they 25 didn't care. They weren't employed in a 28 1 capacity that required them to do repetitive 2 pronation and supination, so they didn't want 3 allografts or anything done. 4 Q. Had they wanted to achieve a greater amount of 5 function, how would you have approached those 6 cases differently, those two? 7 A. I would have done some type of graft procedure. 8 Q. Either a fascia lata graft or some other type 9 of grafting? 10 A. Yes. 11 Q. And you've done that in other patients who have 12 had similar problems in the past? 13 A. Yes. 14 Q. With what type of success? 15 A. It's varied success. Using a tissue that's not 16 biceps tendon, obviously, isn't as good as 17 using biceps tendon, but there can be good 18 success. I would say 75 percent successful. 19 Q. Right. Successful being defined as being able 20 to achieve a close approximation to their 21 pre-injury function? 22 A. Yes. 23 Q. So, in your study, there were two patients over 24 a year out who opted not to have any more 25 functionality-producing operation done of those 29 1 other eight from the ten chronic patients, and 2 you were able to achieve satisfactory results 3 in all eight? 4 A. Yes. 5 Q. Notwithstanding the fact that they were more 6 than -- and sometimes very significantly more 7 than six weeks out? 8 A. That's correct. Although the chronic patients 9 had slightly less power than the acute 10 patients. 11 Q. I think 15 percent less, is that correct? 12 A. Thirteen percent flexion and seven percent 13 supination. 14 Q. You would agree that that's essentially or 15 substantially a complete recovery of function? 16 A. Close to it. 17 Q. Okay. Do you have an opinion as to what the 18 nature of Mr. Ray's recovery in this case would 19 have been had he not sustained an injury to his 20 posterior interosseous nerve? 21 A. If all else was normal, it should have been 22 fairly normal. 23 Q. From what you see -- you've reviewed the 24 records, you've reviewed the rehab records, 25 you've reviewed Dr. Hunt's records, you've 30 1 reviewed Dr. Stearns' records -- is it your 2 opinion that the reason for -- well, first of 3 all, is it your opinion that Mr. Ray's result 4 was less than substantial recovery of function? 5 MR. WILT: Wait a minute. Now, when 6 we're talking about function, are we talking 7 about the function from the biceps repair or 8 function from the interosseous nerve injury? 9 MR. HIRSHMAN: We'll get into that in 10 a second. 11 MR. WILT: I think there's a 12 distinction that needs to be made. 13 MR. HIRSHMAN: Well, there would be. 14 MR. WILT: Okay. 15 BY MR. HIRSHMAN: 16 Q. Starting with the overall result that he has 17 achieved, do you feel that he has a functioning 18 left arm? 19 A. It certainly is functioning, yes. 20 Q. Is it functioning up to pre-rupture capacity? 21 A. No. 22 Q. All right. And do you have an opinion as to 23 why it is not functioning up to pre-rupture 24 capacity? 25 A. Because he sustained a posterior interosseous 31 1 nerve injury. 2 Q. All right. So the lack of function that 3 Mr. Ray has in his left arm is as a result of 4 the posterior interosseous nerve injury? 5 MR. WILT: Just let me object to 6 including all the function in his arm. I mean, 7 we talked about this with your expert. There's 8 different types of function. 9 MR. HIRSHMAN: I understand. I think 10 the Doctor understands what we're talking about 11 too. There's no trick here. 12 BY MR. HIRSHMAN: 13 Q. You may answer the question. 14 A. He is functioning well from everything other 15 than the posterior interosseous nerve injury. 16 He still has excellent hand function. He still 17 has excellent elbow motion. What he cannot do 18 is extend his fingers fully, and that is the 19 deficit which he has. 20 Q. All right. And that's your opinion to a 21 reasonable medical probability? 22 A. Yes. 23 Q. But for the damage to the interosseous nerve, 24 it's your opinion that Mr. Ray would have a 25 fully functioning left upper extremity? 32 1 A. If he did not damage the posterior interosseous 2 nerve, he would have complete extension of his 3 fingers rather than half-full extension of his 4 fingers. 5 Q. Okay. And since that is the injury that you -- 6 that is the sole injury that you have stated he 7 still has, if he didn't have that posterior 8 interosseous nerve injury, he would have a 9 fully-functioning left hand and arm, correct? 10 A. Correct. 11 Q. You've reviewed the operative note of 12 Dr. Stearns? 13 A. Yes. 14 Q. Do you find it to be a comprehensive and 15 detailed operative note? 16 A. Yes. 17 Q. Okay. Let me finish reading here a little bit 18 more from your notes, and then we'll get back 19 to that note, so you may want to take another 20 look at it while I'm reading here. 21 Do you know Dr. Hunt, by the way? 22 A. Yes. 23 Q. How do you know him? 24 A. He introduced himself to me at a meeting once. 25 Q. Is that the only occasion you've had to meet 33 1 him? 2 A. I may have spoken to him twice in my life. 3 Q. I'm looking at your notes here, and it says 4 care taken to protect radial, underlined, and 5 interosseous nerve? 6 A. That's what he said in his operative note. 7 Q. Do you see that in his operative note? 8 A. Yes. 9 Q. Where does he say that? Actually, I know where 10 he says it. You don't have to find it for me. 11 But you've just read that note. 12 A. I've read the note several times. 13 Q. Okay. What is your understanding as to what he 14 is describing when he says care was taken to 15 protect those nerves? Was he describing his 16 conduct within the anterior incision or his 17 conduct within the -- 18 A. The lateral incision. 19 Q. -- the lateral incision? 20 A. The lateral incision. 21 Q. The lateral. Is it fair to say that care needs 22 to be taken in both incisions to protect those 23 nerves? 24 A. Well, it's always fair to say that care should 25 be taken in any incision, but the majority of 34 1 injuries normally occur with the lateral 2 approach, because the radial nerve is close to 3 the radius through the lateral approach, 4 although it can be injured through any 5 approach. 6 Q. Okay. And in the traditional single-incision 7 approach, obviously the injuries occurred 8 during the performance of the operation during 9 the anterior portion of the procedure since 10 that was the only portion of the procedure? 11 A. That's correct. 12 MR. HIRSHMAN: Let's mark these notes 13 and the letter that's attached to them and the 14 phone message that's also attached as Exhibit 15 4. 16 - - - - 17 (Deposition Exhibit No. 4 marked for 18 identification.) 19 - - - - 20 BY MR. HIRSHMAN: 21 Q. When you do this procedure, what text do you 22 consult before performing it? 23 A. I don't consult any text. 24 Q. You don't need to because of the experience 25 that you've had with this procedure? 35 1 A. I'm very familiar with this procedure. 2 Q. And this procedure meaning repairs of the 3 distal biceps tendon by whatever method you 4 choose? 5 A. Yes. 6 Q. Can you tell me what the percentage is of 7 permanent posterior interosseous nerve injuries 8 associated with a distal biceps tendon repair 9 from the traditional anterior approach? 10 A. From the traditional two-incision approach? 11 Q. No. The anterior approach that preceded Boyd 12 and Anderson's approach? 13 A. I can't tell you the exact number, but it was 14 fairly high in the old literature. 15 Q. When you say fairly high, obviously between one 16 study and another, that the numbers tend to 17 change as people's experiences change, but can 18 you give me a range as to what those numbers 19 were? 20 A. I don't recall the range, but I know it was 21 less than 20 percent, but certainly it varied 22 from study to study. 23 Q. Now, with the Boyd and Anderson two-incision 24 approach, are you aware of any literature that 25 describes the risk of posterior interosseous 36 1 nerve injury with that approach? 2 A. Well, the literature states that it's less. 3 Posterior interosseous nerve injury is less and 4 relatively very low, although there are notes 5 in the literature of posterior interosseous 6 injuries from the dual and single approach as 7 well. 8 Q. Can you cite me to any of that literature? 9 A. I can cite you the person who has actually 10 popularized that approach recently, Bernie 11 Morrey, who is one of the most accomplished 12 upper extremity elbow surgeons in the world who 13 even had an injury to a posterior interosseous 14 nerve in his own series through two-incision 15 biceps approach, which he put in the 16 literature. It was a transient nerve palsy, 17 but it lasted for six months. Now, he's 18 supposedly the best in the world. If it can 19 occur to him, I believe it certainly can occur 20 to anybody. 21 Q. Dr. Morrey, did he give any explanations as to 22 how it occurred in his case? 23 A. No. He had 79 cases and had one posterior 24 interosseous nerve injury in his 79, which is 25 greater than a one percent incidence, but 37 1 that's from the best elbow surgeon in the 2 world. 3 Q. Okay. Are you aware of any other reports of 4 posterior -- 5 A. There are isolated reports of posterior 6 interosseous nerve injuries as well. Isolated. 7 There's no specific article, but there are -- 8 when you review the literature and you read 9 about cases performed, there's certainly an 10 incidence of nerve injury. 11 Q. Where does Morrey report this injury? Do you 12 recall whether it was in his text or whether it 13 was an article that he wrote? 14 A. It was from the year 2000 Journal of Bone and 15 Joint Surgery. 16 Q. Do you -- have you looked at that recently? 17 A. Yes. 18 Q. And did you look at it in anticipation of 19 either rendering your opinions or testifying in 20 this case? 21 A. No. I read the literature routinely, 22 especially the subjects of interest to myself. 23 Q. What do you tell patients about the risk of 24 nerve injury before doing surgery on them? 25 A. Well, knowing that there's such a high 38 1 incidence of malpractice that's breaking the 2 State Fund in Pennsylvania, I tell them 3 everything there is to tell them. I tell them 4 they can have nerve injuries, arterial 5 injuries, synostosis, lack of function, 6 infection, and everything else that can 7 possibly occur. I give them every possible 8 complication that you could think of and make 9 them understand that every surgery is a risk, 10 and every surgery is a risk, as well as the 11 risk of anesthesia, and I also say that these 12 complications aren't limited to what I've told 13 you. 14 Q. Okay. When one goes -- let's talk about risk 15 for a moment. I'd like to talk about it in a 16 more general way if we could. 17 You would agree that there are risks 18 associated with all sorts of behavior, 19 including getting in your car? 20 MR. WILT: Objection. 21 A. There's much more risk having a surgical 22 procedure than getting into your car. 23 Q. Now, when one gets into their car, there are 24 certain risks associated with that, I presume 25 you'd agree? 39 1 MR. WILT: Objection. 2 Q. Or do you not agree? 3 A. I agree that there are certain risks. I won't 4 agree that they're anywhere near the risks of 5 having a surgical procedure. 6 Q. But when you get in a car, one of the risks is 7 that you might die, I presume? 8 MR. WILT: Can I just have a standing 9 objection to this whole line of car questions? 10 MR. HIRSHMAN: Sure. 11 MR. WILT: I think it's totally 12 irrelevant and has nothing to do with this 13 case. 14 Q. Do you agree? 15 A. Yes. 16 Q. All right. And one of the reasons for that 17 risk is because when you get into a car, one of 18 the things that might happen is that somebody 19 might drive in a fashion that fails to comport 20 with the law of the road, correct? 21 A. Someone or yourself, yes. 22 Q. You would agree that when you as a surgeon give 23 risks to a patient, part of what you're 24 describing is the risk that somebody will do 25 something inappropriate in a procedure? 40 1 A. That certainly is a risk, but that's not always 2 the reason why bad things happen. 3 Q. No doubt about that. I agree with that. But 4 it's one of the reasons, correct? 5 A. Correct. 6 Q. If you had been -- based on what you've read, 7 what you've read both in the deposition of 8 Dr. Stearns and in his operative note, if you 9 had been performing -- let me ask you a little 10 bit different question. 11 What do you understand to be the 12 mechanism by which the injury occurred to the 13 posterior interosseous nerve of Mr. Ray's left 14 arm? 15 A. My understanding would be that this would be a 16 traction injury. Pulling on the tissues led to 17 the nerve problem. 18 Q. And traction at what point in the surgery? 19 A. Probably while passing the tendon between the 20 radius and the ulna. 21 Q. In other words, traction through the -- 22 A. Traction during the exposure. 23 Q. During which exposure? 24 A. During the exposure of where you're going to 25 pass your instrument to get through the two 41 1 bones. 2 Q. In other words, traction that was sustained 3 during the anterior incisional approach? Is 4 that what you're saying? 5 A. Yes. 6 Q. Now, using that approach, in other words, it's 7 your feeling that -- or your opinion that the 8 injury occurred after the fascia lata graft had 9 been fashioned? 10 A. That's not what I said. 11 Q. I'm not suggesting it. I'm just trying to 12 explore what it is you're saying in more 13 detail. 14 A. What I'm saying is that the tissues ulnar to 15 the radius had to be retracted to get exposure 16 to the interosseous membrane where the 17 instrument is passed between the radius and the 18 ulna, and while that retraction is occurring, 19 the nerve is being stretched, and stretching a 20 nerve can lead to a palsy. 21 Q. And that stretching would have been necessary 22 whether or not a fascia lata graft had been 23 utilized? 24 A. A fascia lata graft is irrelevant here. 25 Q. All right. And as a result, the delay is 42 1 irrelevant as it relates to the injury to the 2 posterior interosseous nerve? 3 A. The only reason the delay could create more 4 difficulty is that it would create more 5 scarring. So going in, there would be more 6 scar that you would have to clean up, in 7 layman's terms, to see the structures that you 8 have to expose. 9 Q. So if I understand what you're saying, do you 10 see any description of scarring as having 11 caused an additional set of difficulties in 12 this procedure as described in the operative 13 note? 14 A. No. 15 Q. Do you see anything in Dr. Stearns' deposition 16 that describes scarring as having caused any 17 additional difficulties? 18 A. No, but I can tell you from my own experience 19 that there is more scarring in chronic cases 20 than there are in acute cases. 21 Q. So if I understand you correctly, you're not 22 saying that you have an opinion to a reasonable 23 probability that scarring is responsible for 24 the posterior interosseous nerve injury in this 25 case? 43 1 A. I'm just saying that it's a factor in the 2 dissection. 3 Q. And it could have, but you're not saying that 4 it did, to a reasonable probability? 5 A. That's correct. 6 Q. And you obviously have had plenty of experience 7 with chronic cases given what we've read in 8 your literature? 9 A. Yes. I think most of the literature will point 10 out that the chronic cases have a higher 11 incidence of complications than the acute 12 cases. 13 Q. Nevertheless, you have never permanently 14 injured the posterior interosseous nerve 15 notwithstanding the fact that you've seen a 16 significant number of chronic cases? 17 A. I have not, but, once again, going back to 18 Dr. Morrey's article, who is the world expert 19 in it, he did note that there are higher 20 incidences of complications in the chronic 21 cases than in the acute cases. 22 Q. Do you recall whether his one out of 79 cases 23 which resulted in a temporary posterior 24 interosseous nerve injury of six months 25 duration was in an acute or chronic case? 44 1 A. I don't believe it's specified. He had other 2 nerve injuries as well. He had a 30 percent 3 complication rate, remember. 4 Q. Meaning all sorts of complications from -- 5 A. From the two-incision approach. 6 Q. Some of those complications were probably 7 the -- 8 A. Some of them were sensory nerves. He had five 9 sensory nerve injuries, he had heterotopic bone 10 formation, ossification and other problems as 11 well. 12 Q. I want you to assume that Dr. Stearns did not 13 retract the brachial radialis muscle. Can you 14 assume that for me? 15 A. Yes. 16 Q. I want you to assume that he did not retract 17 the brachialis muscle either. 18 A. Okay. 19 Q. I want you to further assume that he did not 20 retract the biceps muscle, and that he never 21 visualized the radial nerve or the posterior 22 interosseous nerve. 23 Can you assume those and still 24 envision this procedure being done -- those 25 facts and still envision this procedure being 45 1 done? 2 A. Dr. Morrey doesn't expose the radial nerve or 3 posterior interosseous nerve either when he 4 does this procedure. 5 Q. And he doesn't retract the brachial radialis 6 muscle, the brachialis muscle or the biceps 7 muscle? 8 A. I just heard him speak a couple of months ago 9 at the academy, and I know Dr. Morrey as well. 10 We both spoke at a meeting in Philadelphia in 11 early March of this year. He makes an incision 12 no more than two centimeters long at the 13 anterior, so he doesn't expose the nerve, 14 doesn't look for the nerve, simply does it by 15 passing his instrument between the two 16 membranes, the radius and the ulna, and makes 17 most of his incision over the radius, the 18 lateral approach. 19 Q. So he's basically doing an arthroscopic 20 procedure in the front? 21 A. Not arthroscopic, but very minimal dissection. 22 Just finds the tendon that's ruptured and 23 passes it through blindly almost. Of course, 24 he knows the anatomy very well and has been 25 there many times. 46 1 Q. And what kind of an incision do you make? 2 A. I make a long -- not long, but six to seven 3 centimeter anterior incision. I also do not 4 identify the nerve. I do this simply by 5 knowing the anatomy and extending down to the 6 radial tuberosity and passing my instrument. 7 Q. Have you seen the incisions in this case? 8 A. I have not. 9 Q. Would it be fair to say that the larger the 10 incision, the greater the likelihood that 11 retraction is being done in the anterior 12 operative field? 13 A. I would like to think that the larger the 14 incision, the less likely theoretical nerve 15 injury would occur. 16 Q. Because it's giving you a wider field with 17 which to visualize what you're doing? 18 A. Correct. 19 Q. So when Dr. Morrey does his two-centimeter 20 incision, the size of that incision, the small 21 size of that incision makes his procedure, as 22 you've already, I think, used the term, 23 somewhat of a blind procedure as it relates to 24 the anterior approach? 25 A. Correct. 47 1 Q. Okay. What's your understanding as to when the 2 nerve injury became apparent? 3 A. It became apparent several weeks after the 4 operation. I believe it was the 24th of 5 November when he first noted it. 6 Q. When he first noted it, meaning when 7 Dr. Stearns first noted it? 8 A. Yes. 9 Q. Meaning when he first noted it in his records? 10 A. Correct. 11 Q. You've read the deposition of Mr. Ray. Do you 12 recall what he says as to when Dr. Stearns 13 first noted it? 14 MR. WILT: Do you mean his testimony 15 as to when not noted, but when he believes 16 Dr. Stearns was first aware, because I don't 17 think there's any testimony that Dr. Stearns 18 noted anything prior to November 24? 19 MR. HIRSHMAN: Well, we're using the 20 term noted in two different ways. 21 MR. WILT: Right. 22 MR. HIRSHMAN: And we'll clarify 23 that. 24 A. I don't recall when Mr. Ray said he first noted 25 it. 48 1 Q. Let's assume that Mr. Ray says -- well, let's 2 assume facts rather than assume testimony. I 3 want you to assume that it was observed the 4 very next day, postoperative day one, that 5 Mr. Ray did not have extension of his fingers, 6 and this was observed on postoperative day one 7 by Dr. Stearns before Mr. Ray left the 8 hospital. All right? 9 A. Yes. 10 Q. If one assumes that to be the case, what 11 conduct, if any, did reasonable standards of 12 care require to be done at that time? 13 A. If it were myself, I would have done nothing. 14 I would just told him we have a nerve injury, 15 and we should wait this out and see if it comes 16 back. 17 Q. I'm asking you this because -- and it's very 18 rudimentary, but my rudimentary understanding 19 of the decisions that need to be taken at that 20 point in time suggest that to the extent that 21 one is of the belief that one is dealing with a 22 temporary nerve injury, one presumably wouldn't 23 want to go in and disturb the operative field 24 any further. However, to the extent that one 25 is dealing with a permanent nerve injury, the 49 1 longer one waits, the less available 2 exploration becomes as a curative measure. 3 A. Exploration for posterior interosseous nerve 4 injury is fraught with failure, very low 5 incidence of success by repairing the nerve -- 6 Q. All right. 7 A. -- itself. 8 Q. So it's really a non-issue? 9 A. It's really a non-issue. Most everyone would 10 do tendon transfers to regain function here as 11 opposed to going back in and repairing that 12 particular nerve, and furthermore, the injury 13 here is extremely unlikely laceration of the 14 nerve. It is much more likely that it's a 15 traction injury. 16 Q. And exploration has absolutely no relevance to 17 traction injuries in the posterior interosseous 18 nerve? 19 A. There are certain pain syndromes that would 20 benefit from exploration, but in terms of a 21 traction injury, I'm not sure what role 22 exploration would have. I've never gone back 23 in, being an upper extremity surgeon, to 24 explore a posterior interosseous nerve traction 25 injury. 50 1 Q. So the long and the short of it is that 2 re-exploration of this nerve was never a viable 3 approach for this patient? 4 A. That's pretty much correct within a reasonable 5 degree of medical certainty. 6 Q. Now, tendon transfers have nothing to do with 7 regaining function of the nerve. They're a 8 means by which ones attempts to hook up a new 9 set of muscles to the tendons that aren't 10 providing function to the fingers, correct? 11 A. Correct. 12 Q. And that's something that can be done at any 13 time? 14 A. Correct. 15 Q. Even years after, correct? 16 A. Yes. 17 Q. And when one does a tendon transfer, what's a 18 reasonable set of expectations that a patient 19 should have as to the extent to which they will 20 succeed in providing function to the fingers? 21 A. It's an extremely successful operation. 22 Q. Successful in providing complete? 23 A. Almost complete normal function. 24 Q. Complete normal function. 25 MR. WILT: Toby, just so you're 51 1 aware, I am going to ask him at trial whether 2 or not that's a viable option for Mr. Ray, 3 given his injury, and whether or not he would 4 expect to have recovery of good function if he 5 had a tendon transfer operation. I think 6 Dr. Hunt and everybody else has recommended 7 that, but I'm going to ask him that question. 8 MR. HIRSHMAN: Is it in your report? 9 MR. WILT: I'm letting you know now. 10 I think it's in the medical records, and I 11 can't remember if it's specifically stated in 12 the report or not. 13 MR. HIRSHMAN: I'll have to take a 14 look. 15 MR. WILT: Actually, I think it is. 16 MR. HIRSHMAN: I don't think it is, 17 but why don't we find out for sure. Let's look 18 at the report. 19 MR. HIRSHMAN: I don't see it in the 20 report. 21 MR. WILT: Well, two things: One, I 22 do have a report from him that does state it 23 that I just got a week ago. Second, I can't 24 believe you would object to that given the fact 25 that I just got a report from Dr. Keljka a week 52 1 or two ago. 2 MR. HIRSHMAN: You got it more than 3 30 days before trial is when you got it. 4 MR. WILT: What? 5 MR. HIRSHMAN: You got it more than 6 30 days before trial. 7 MR. WILT: I got it 40 days before 8 trial. 9 MR. HIRSHMAN: That's right. 10 MR. WILT: Big deal. Forty days or 11 30 days, you're going to object about that? 12 MR. HIRSHMAN: All I'm doing is 13 telling you what the rule says in Cuyahoga 14 County. We don't have to fight about it now. 15 We can fight about it later. 16 MR. WILT: Here's his report. 17 MR. HIRSHMAN: I just looked at his 18 report. 19 MR. WILT: No. This is a report that 20 was sent to me on March 30 after he reviewed 21 the deposition of Mr. Ray. 22 MR. HIRSHMAN: Is this my copy? 23 MR. WILT: You can keep it. 24 MR. HIRSHMAN: Was that on the 25 record? 53 1 THE REPORTER: Yes. 2 MR. HIRSHMAN: Let's make this an 3 exhibit. 4 - - - - 5 (Deposition Exhibit No. 5 marked for 6 identification.) 7 - - - - 8 BY MR. HIRSHMAN: 9 Q. I'm handing you what's been marked as Exhibit 10 5. It's a letter dated March 30, 2001, I 11 believe, is it not? 12 A. Yes. 13 Q. It was written by you to Mr. Wilt, correct? 14 A. Yes. 15 Q. And it's got some fax dates at the top. Can 16 you tell me what those are? 17 A. He said he did not -- he persists to have a 18 nerve palsy. 19 Q. There's some fax dates up here at the top I'm 20 asking you. There's an April 2, 2001 fax, and 21 there's an April 5 fax at the top as well. Is 22 one of those yours from your office? 23 A. I have no idea. This would be my secretary and 24 how she transcribed and sent this. I didn't 25 send this. 54 1 Q. Did you have a series of discussions with 2 Mr. Wilt's office regarding this letter before 3 it was written? 4 A. I had no discussions with Mr. Wilt's office at 5 all about this letter or virtually anything 6 else except after the initial review of this 7 case. 8 Q. The reason I'm asking is because it looks to me 9 to be a fax that comes from Buckingham 10 Doolittle. 11 MR. WILT: It was faxed to me. 12 A. It was faxed to him from me. I wrote that 13 letter. 14 Q. But if you faxed it to him, I doubt whether 15 Buckingham Doolittle's name would show up on 16 the fax. 17 MR. WILT: No. Buckingham Doolittle 18 faxed it to me last night. 19 MR. HIRSHMAN: Oh, so you got it last 20 night? 21 MR. WILT: Right. 22 MR. HIRSHMAN: All right. You got it 23 April 5? 24 MR. WILT: Right. You got it April 25 6. 55 1 MR. HIRSHMAN: The trial is April 30. 2 MR. WILT: That's fine. Go ahead, 3 Toby. 4 BY MR. HIRSHMAN: 5 Q. Okay. Have you made plans to appear at trial 6 in this case? 7 A. No. 8 Q. The trial is scheduled for April 30. Is there 9 any reason why you'd be unable to appear at 10 trial in Cleveland, Ohio during the week of 11 April 30? 12 A. I would have to check my schedule and 13 everything else and make arrangements to go to 14 trial. 15 Q. You're not suggesting that every time an injury 16 occurs to the posterior interosseous nerve 17 during the course of a brachial tendon repair, 18 a distal brachial tendon repair, that one can 19 chalk it up to just being a risk of the 20 procedure, are you? 21 MR. WILT: Objection. 22 A. That's a hard question to answer. I'm certain 23 that there are certain iatrogenic injuries that 24 can occur, but based on what Dr. Stearns wrote 25 in his operative note, he seemed to follow the 56 1 standard operative procedure very well, and 2 sometimes these kind of injuries can occur as a 3 risk of the procedure and not the doctor's 4 fault. 5 Q. So I guess I'm just trying to get your sense 6 globally as to whether or not an injury to this 7 nerve is always attributable to a risk of the 8 procedure or whether you would agree that 9 sometimes such nerve injuries are the result 10 and can be the result of negligence? 11 A. Any procedure could lead to negligence and any 12 procedure can have complications as a result of 13 negligence, but any procedure can also have 14 complications as the result of the procedure 15 itself and what's required during that 16 procedure. 17 Q. What kind of a documentation in the operative 18 note would you have to see for you to conclude 19 that the standard of care was not upheld with 20 this type of an injury? 21 A. Obviously, if the operative note stated that 22 the posterior interosseous nerve was identified 23 and protected but during the case traction on 24 the nerve led to a rupture of the nerve, that's 25 obvious documentation that it was an iatrogenic 57 1 injury. 2 Q. By iatrogenic, you mean one that shouldn't have 3 happened? 4 A. That's a doctor-created injury. 5 Q. Now, you can have iatrogenic injuries that are 6 doctor-created and are also a risk of the 7 procedure presumably, can't you? 8 A. There are many procedures that have inherent 9 risks. This procedure has the inherent risk of 10 a posterior interosseous nerve injury, and you 11 can't say the doctor -- it's the doctor's fault 12 that this occurred. 13 Q. So unless the doctor says in his operative 14 note, I identified the nerve, I isolated it, 15 and then I went ahead and injured it in any 16 way, you would conclude, in the absence of 17 that, that the injury was as a result of the 18 risks of the procedure rather than because of 19 medical negligence? 20 MR. WILT: Just let me object. 21 First, I don't believe that's what he was 22 suggesting, that was an example, and actually I 23 forget the second. I'm objecting. 24 A. I'll answer your question. I'll state that if 25 someone were to say in the operative note that 58 1 a knife was taken to the -- the supinator was 2 split with a knife to identify the proximal 3 radius with the arm in pronation, I would say 4 that that's an iatrogenic injury, that that's 5 negligence. 6 Q. What does the operative note say regarding the 7 positioning of the arm, pronation versus 8 supination, when the supinator was split? 9 A. It doesn't matter. All that matters here is 10 that the tuberosity was identified when he did 11 that lateral approach. If he did a lateral 12 approach and he took care and maintained 13 himself in a safe zone, which he says he did, 14 then I would presume that the nerve was not cut 15 with a knife. An iatrogenic injury with this 16 particular case would mean a lacerated nerve, 17 and it's extremely unlikely that the nerve was 18 lacerated. 19 Q. All right. Let's explore that a little bit if 20 we can. Was the supinator split in this 21 procedure? 22 A. It doesn't mention it. 23 Q. So you don't know one way or the other? 24 A. It doesn't mention the supinator. 25 Q. Can you do this procedure without splitting the 59 1 supinator? 2 A. Yes. I used that as an example of what I would 3 presume would be an iatrogenic injury. 4 Q. Okay. This much we can agree on: Every 5 maneuver that was done in this surgery is not 6 mentioned in that 7 one-page-plus-a-few-extra-lines operative note, 8 correct? 9 A. Correct. 10 Q. So as it relates to what occurred that is not 11 in that note, we are left to our own 12 imagination? 13 MR. WILT: Objection. I think 14 Dr. Stearns has testified very extensively. 15 A. Am I supposed to answer that question? 16 Q. No. You don't have to answer that question. 17 Was this surgical approach difficult 18 in your estimation? 19 A. It's a difficult surgical approach. 20 Q. Well, let's put it this way: Given the nature 21 of the beast we're talking about, was this 22 surgical approach any more difficult than the 23 usual repair of a distal biceps tendon? 24 A. Only that it's a chronic injury, and chronicity 25 leads to more complications. 60 1 Q. Beyond that, it's no more difficult than the 2 cases you've seen? 3 A. Well, beyond that -- that's the significant 4 point, but beyond that, it's not. 5 Q. You would agree that -- are you able to rule 6 out a laceration in this case? 7 MR. WILT: To a degree of probability 8 or certainty? 9 MR. HIRSHMAN: I'm asking him whether 10 he's able to rule it out, if that term has 11 specific -- 12 A. I can say, within a reasonable degree of 13 medical certainty, that a laceration was not 14 performed here. 15 Q. A laceration of the posterior -- 16 A. Of the posterior interosseous nerve. 17 Q. But you can't rule it out as you understand 18 that term? 19 A. I can't say with absolute certainty. 20 Q. And if a laceration is the cause of this 21 injury, it would take a laceration of, what, at 22 least one-third of the diameter of this nerve 23 to cause the type of motor deficits that 24 Mr. Ray has? Fair statement? 25 A. It would probably take a laceration of -- I 61 1 don't know how you got the one-third rule, but 2 there can be various degrees of injury to the 3 nerve. It could be a hundred percent. It 4 could be a third. It depends on how the 5 fascicles within that nerve sit. 6 Q. I got the hundred percent from something you 7 wrote in Hand Clinic. 8 A. That's just a -- that's a generic nerve injury 9 there. That's not the posterior interosseous 10 nerve. That's a multi-fascicular nerve that 11 involves connective tissue and sensory and 12 motor fibers in that nerve. So that's a 13 different issue. 14 Q. All right. That's what I'm asking about. The 15 posterior interosseous nerve -- 16 A. It's a pure motor nerve. 17 Q. -- is a pure motor nerve, and what you're 18 talking about here is a nerve that would be 19 higher up on the limb. The radial nerve would 20 be an example of the type of nerve you're 21 talking about? 22 A. That's correct. 23 Q. You're not contending, I take it, that Mr. Ray 24 is in any way faking here, are you? 25 A. No. 62 1 Q. Would it be fair to say that steroids played no 2 role in this injury, correct? 3 A. Steroids are well-known to create collagen 4 vascular deficiencies. For example, in 5 weight-lifters, they have a higher propensity 6 to rupture tendon and/or vessels, and in that 7 same light, they would affect nerve in the same 8 way. So I cannot rule out that steroid played 9 any role in this if Mr. Ray used steroids. 10 Q. I want you to assume that Mr. Ray is in his 11 40's and had, as a high school student and a 12 first-year college student, taken steroids many 13 years before. So we're talking about a 14 non-contemporaneous use of steroids. Given 15 those assumptions, what role do you feel was 16 played by steroids in his injuries? 17 A. I mentioned earlier to you that I do a lot of 18 avascular necrosis of the hip. One of the 19 primary causes of avascular necrosis is 20 steroid. Many of my patients have a history of 21 taking steroids up to ten years prior to the 22 onset of avascular necrosis, so it certainly 23 could be a factor. In light of the fact that 24 he took steroids for two years straight, that 25 certainly plays a big factor. 63 1 Q. I'm not sure that's the case or not, but I 2 think that the medical records suggest that 3 there were steroids taken. 4 Are you able to render an opinion to 5 a reasonable medical probability as to whether 6 steroid usage earlier in his life, assuming 7 that to have been the case, caused or 8 contributed to his nerve injury? 9 A. Are you absolutely certain that he has not 10 taken steroids for 20 years? 11 Q. I want you to assume that he has not taken 12 steroids for 20 years. 13 A. Then I can't say within a reasonable degree of 14 medical certainty. 15 Q. Is there any evidence that he developed 16 synostosis of his radius and ulna? 17 A. No. 18 Q. Now come the questions I hate to ask, but I'll 19 ask them anyway. Have you ever been sued? 20 A. Have I ever been sued? Yes. 21 Q. How many times? 22 A. Twice. 23 Q. Can you tell me what happened in those cases? 24 A. Yes. One, a pin broke in someone's arm after I 25 cured the patient of a non-union, and we're 64 1 considering suing the attorney who is suing me 2 right now; and in the other case, the patient 3 had a massive pulmonary embolus after a hip 4 procedure and died, and I was named in the 5 lawsuit, but I was told I would be dropped. 6 Q. It's still pending, I take it? 7 A. Yes. 8 Q. And I take it the first one was settled -- it 9 was dismissed without payment being made? 10 A. The first one was very recently. It was very 11 recent, and we don't know what the outcome of 12 that is going to be. 13 Q. So you've never had a case paid on your behalf? 14 A. I've never lost a malpractice suit. 15 Q. I don't know what you know about the fee issue 16 as it relates to the deposition, but you had 17 indicated to Mr. Wilt that the fee for this 18 deposition was to be $3,500. I filed a motion 19 with the Court and the Court reduced that fee. 20 I'm here, and I brought a check as I was 21 requested to, and I will provide you with 22 payment at the termination of this deposition 23 in conformance with Court's order which was, I 24 think -- 25 MR. WILT: $800 up front and $250 a 65 1 half hour after that. 2 MR. HIRSHMAN: Whatever the amount 3 is, we'll deal with it. 4 MR. WILT: I've got a voice mail if 5 you'd like to listen to it. 6 MR. HIRSHMAN: Well, I think it's 7 $600. We'll deal with it. I think it's $600 8 for the first half hour and $250 for each half 9 hour after that, but -- 10 MR. WILT: Just let me object. I 11 have a voice mail I can retrieve. The Judge's 12 clerk called and left it and told me it was 13 $800 for the first half hour, but go ahead. 14 BY MR. HIRSHMAN: 15 Q. Notwithstanding that, whatever it is, are you 16 being compensated beyond that amount by anyone 17 else in this case? 18 A. I will be compensated for what I asked for in 19 total for this case. 20 Q. So you have worked out arrangements with 21 Mr. Wilt for payment of the remainder? 22 A. I haven't worked out arrangements with anyone, 23 but it's my understanding that I would get 24 $3,500 for doing the deposition, which is my 25 standard fee for malpractice depositions. 66 1 Q. How much do you charge to review a case? 2 A. It's an hourly rate. 3 Q. $300 hour? 4 A. $500 an hour. 5 Q. How much do you charge to go to trial? 6 A. That's determined based on where I have to go, 7 how long I have to be there and everything 8 else, and how much time I'm away from my 9 office. Time away from my office and away from 10 my patients is a great, great hardship since I 11 would normally be seeing 50 people this morning 12 if I were not here. 13 Q. What is the extent of your medical/legal 14 experience as an expert witness? 15 A. Very, very limited. Ninety-five percent of my 16 income is from clinical-related orthopedic 17 surgery, and five percent is from reviewing 18 cases whether they're malpractice or worker's 19 compensation. 20 Q. Let's talk about malpractice for a moment. Can 21 you tell me how many cases -- you've been in 22 practice as an upper arm specialist since -- is 23 it 1992? 24 A. 1991. 25 Q. 1991. How many cases have you reviewed over 67 1 the period of time from then to the present? 2 I'm not restricting you to -- if there's a 3 better way for you to come up with a number, by 4 all means do so. 5 A. I would say ten cases. 6 Q. Ten cases in that whole period of time? 7 A. Yes. 8 Q. How many for plaintiff, how many for defendant, 9 if you know? 10 A. Two for plaintiffs and probably -- I would say 11 20 percent plaintiffs, 80 percent defendants. 12 I review the case. If I believe that the 13 plaintiff has a strong case, I will testify for 14 the plaintiff. 15 Q. Those ten that you mentioned, are those the 16 total number that you've reviewed or are those 17 the total number you've signed up to testify? 18 A. Probably just reviewed. 19 Q. So how many times have you actually been 20 deposed before in a medical malpractice case? 21 A. It's impossible for me to think. Probably 22 eight times. 23 Q. Have any of them dealt with the issues we're 24 dealing with here? And by that, let's talk 25 about do any of them deal with the procedure 68 1 we're dealing with here, a repair of a rupture 2 of the brachial -- 3 A. No. Biceps tendon. 4 Q. Biceps tendon. Excuse me. 5 MR. HIRSHMAN: I'm done. I 6 appreciate your accommodating me, and I'll 7 probably see you in a couple weeks, a month. 8 MR. WILT: All right. 9 - - - - 10 (The proceedings were concluded at 11 10:00 a.m.) 12 - - - - 13 14 15 16 17 18 19 20 21 22 23 24 25 69 1 COMMONWEALTH OF PENNSYLVANIA ) CERTIFICATE 2 COUNTY OF ALLEGHENY ) SS: 3 I, JoAnn M. Brown, RMR, a Court Reporter and 4 Notary Public in and for the Commonwealth of 5 Pennsylvania, do hereby certify that the witness, 6 DEAN G. SOTEREANOS, M.D. was by me first duly sworn 7 to testify to the truth; that the foregoing 8 deposition was taken at the time and place stated 9 herein; and that the said deposition was recorded 10 stenographically by me and then reduced to printing 11 under my direction, and constitutes a true record of 12 the testimony given by said witness. 13 I further certify that the inspection, reading 14 and signing of said deposition were NOT waived by 15 counsel for the respective parties and by the 16 witness. 17 I further certify that I am not a relative or 18 employee of any of the parties, or a relative or 19 employee of either counsel, and that I am in no way 20 interested directly or indirectly in this action. 21 IN WITNESS WHEREOF, I have hereunto set my hand 22 and affixed my seal of office this 16th day of April, 23 2001. 24 ___________________________________ 25 Notary Public 70 1 COMMONWEALTH OF PENNSYLVANIA ) E R R A T A COUNTY OF ALLEGHENY ) S H E E T 2 I, DEAN G. SOTEREANOS, M.D., have read the 3 foregoing pages of my deposition given on Friday, April 6, 2001, and wish to make the following, if 4 any, amendments, additions, deletions or corrections: 5 Pg. No. Line No. Change and reason for change: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 In all other respects, the transcript is true and 20 correct. 21 __________________________________ DEAN G. SOTEREANOS, M.D. 22 Subscribed and sworn to before me this 23 _________ day of _______________, 2001. 24 _______________________________________ Notary Public 25 AKF Reference No. JB64513 71 1 AKF REPORTERS, INC. AKF Building 2 436 Boulevard of the Allies Pittsburgh, PA 15219 3 (412) 261-2323 4 April 16, 2001 5 TO: Ronald M. Wilt, Esq. 6 7 RE: DEPOSITION OF DEAN G. SOTEREANOS, M.D. 8 NOTICE OF NON-WAIVER OF SIGNATURE 9 Please have the deponent read his deposition transcript. All corrections are to be noted on the 10 preceding Errata Sheet. 11 Upon completion of the above, the Deponent must affix his signature on the Errata Sheet, and it is to 12 then be notarized. 13 Please forward the signed original of the Errata Sheet to Tobias J. Hirshman, Esq. for 14 attachment to the original transcript, which is in his possession. Send a copy of same to all counsel, 15 and also a copy to me. 16 Please return the completed Errata Sheet within thirty (30) days of receipt hereof. 17 18 19 JoAnn M. Brown, RMR Court Reporter 20 cc: Tobias J. Hirshman, Esq. 21 22 23 24 25