1 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 - - - 4 Reverend Stephen Walick, ) ) 5 Plaintiff, ) ) 6 vs. ) Case No. 307749 ) 7 Michael S. Eisenstat, M.D., ) et al., ) 8 ) Defendants. ) 9 - - - 10 11 Deposition of Fred Thomas, M.D., a witness herein, 12 called by the Plaintiff for Examination under the statute, taken 13 before me, Rose Marie Prater, Registered Professional Reporter 14 and Notary Public in and for the State of Ohio, by agreement of 15 counsel without notice or other legal formality, at the offices 16 of the deponent, The Ohio State University Hospital, Doan Hall, 17 Room N211, 410 West 10th Street, Columbus, Ohio, on Thursday, 18 March 18, 1999, beginning at 9:10 o'clock a.m. and concluding on 19 the same day. 20 - - - 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 2 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 APPEARANCES: 2 ON BEHALF OF THE PLAINTIFF: 3 Tobias J. Hirshman, Esq. Linton & Hirshman 4 Hoyt Block Suite 300 700 West St. Clair Avenue 5 Cleveland, Ohio 44113-1230 (216) 781-2811 6 ON BEHALF OF THE DEFENDANT, MICHAEL S. EISENSTAT, M.D., 7 AND MERIDIA HILLCREST HOSPITAL: 8 Brant Poling, Esq. Reminger & Reminger 9 Courthouse Square 505 South High Street 10 Columbus, Ohio 43215-5657 (614) 461-1311 11 ON BEHALF OF THE DEFENDANT, DAVID L. GOTTESMAN, M.D.: 12 Edwin J. Hollern, Esq. 13 Mazanec, Raskin & Ryder, Co., LPA 250 Civic Center Drive, Suite 400 14 Columbus, Ohio 43215 (614) 228-5931 15 - - - 16 17 18 19 20 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 3 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 S T I P U L A T I O N S 2 - - - 3 It is stipulated by and among counsel for the 4 respective parties herein that the deposition of Fred Thomas, 5 M.D., a witness herein, called by the Plaintiff for Examination 6 under the statute, may be taken at this time and reduced to 7 writing in stenotype by the Notary, whose notes may thereafter 8 be transcribed out of the presence of the witness; that proof of 9 the official character and qualification of the Notary is 10 waived; that the examination, reading and signature of the said 11 Fred Thomas, M.D. to the transcript of his deposition are 12 expressly waived by counsel and the witness; said deposition to 13 have the same force and effect as though signed by the said Fred 14 Thomas, M.D. 15 - - - 16 17 18 19 20 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 4 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 FRED THOMAS, M.D. 2 of lawful age, being by me first duly placed under oath, as 3 prescribed by law, was examined and testified as follows: 4 EXAMINATION 5 BY MR. HIRSHMAN: 6 Q. Morning, Doctor. 7 A. Morning. 8 Q. Why don't we just start by you having you state your full 9 name, if you would? 10 A. Fred, middle initial B, last name, Thomas. 11 Q. And you are a gastroenterologist? 12 A. Yes, sir. 13 Q. You've been identified as an expert witness -- 14 A. Uh-huh. 15 Q. -- in this medical malpractice case, which is being brought 16 against Dr. Eisenstat, Dr. Gottesman and others, by the attorney 17 for Gottesman. And it's in that capacity that we're going to be 18 here today, and I'm going to be asking you some questions about 19 your opinions. 20 A. Okay. 21 Q. Let's start, however, with -- just give me a brief idea of 22 what the nature of your practice is? 23 A. Well, the nature of my practice is that it's -- I spend -- 24 I'm at an academic teaching institution. I spend seven months 25 on the gastroenterology consultative service and the * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 5 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 gastroenterology inpatient service, and that's pretty much a 2 private practice plus teaching. 3 The other five months of the year is purely private 4 practice, doing outpatients, doing procedures. Maybe five 5 percent of what I do is administrative kinds of things. 6 Q. So a significant amount of your practice entails doing 7 various endoscopic procedures? 8 A. Yes. 9 Q. And you do colonoscopies on a regular basis? 10 A. Yes. 11 Q. Can you tell me approximately how many colonoscopies you do 12 a year? 13 A. Oh, Mr. Hirshman, that would really be a guess. I would 14 say five to six hundred, but that's a guess. I've never really 15 kept track of that. 16 Q. All right. And you see your fair share of polyps? 17 A. Yes, sir. 18 Q. And to go through the decision making-process of what to do 19 with them -- 20 A. Yes. 21 Q. -- based on, among other things, what they look like 22 histologically? 23 A. Right. 24 Q. Okay. What percentage, would you say, of your practice is 25 involved in direct patient care? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 6 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Direct patient care? 2 Q. Correct. 3 A. Oh, it's probably 90-plus percent. 4 Q. You were practicing in 1984, I take it? 5 A. Yes, sir. 6 Q. Tell me what you were doing in 1984, what the nature of 7 your practice was? 8 A. Well, 1984, the nature of my practice is pretty much what 9 it is, except I was the Director of the Division of 10 Gastroenterology. Did that for 15 years and then stepped down 11 from that. 12 The only difference in what I do now and what I did then, 13 really, was directing the division. The nature of the practice, 14 the kinds of procedures and things I did were pretty much what I 15 do today, except the practice was much less busy in 1984 than it 16 is today. 17 Q. Have you served as an expert witness in the past? 18 A. Yes, I have. 19 Q. Can you give me some idea -- Let's try to break this down 20 into chunks of information that make sense. 21 Can you give me some idea as to how often you have 22 testified in court as an expert witness in a medical malpractice 23 case? 24 A. In court, twice. 25 Q. And can you tell me, of those two occasions, how many of * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 7 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 them were for the plaintiff and how many were for the defendant? 2 A. Two were for the plaintiff. 3 Q. Both were for the plaintiff? 4 A. Yes. 5 Q. Okay. Have you been deposed, as we're doing here today -- 6 A. Yes. 7 Q. -- in the past? Can you tell me how many times? 8 A. Maybe 20 times. 9 Q. Can you break that down for me as to how much of that was 10 for the plaintiff versus the defense? 11 A. Oh, it's 50/50, 60/40. It's pretty much even. 12 Q. During what time span are we talking about? 13 A. Talking all about since 1978. 14 Q. So 20 times you've been deposed since 1978? 15 A. Right. 16 Q. All right. Can you tell me approximately how many times 17 you have consulted on medical malpractice cases during your 18 career? 19 A. By that do you mean people sent me cases to review? 20 Q. Correct. 21 A. Probably another 20, 25 times. 22 Q. So 20 or 25 in addition to the ones that -- 23 A. In addition -- Well, no, no, no, those -- some of those -- 24 it's probably been -- Let me back up a step. 25 I've been deposed maybe 20 times, another 20 times reviewed * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 8 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 cases and not deposed; so a total of 40. Maybe half of those 2 have been deposed on. 3 Q. Okay. The ratio between plaintiffs and defendants, as it 4 relates to all the cases you've been involved in, would be what? 5 A. I would say 50/50 or 60/40, plaintiff versus defense, 6 somewhere in that range. 7 Q. Heavier side being plaintiff or defendant? 8 A. Heavier side being plaintiff. 9 Q. Okay. 10 A. But that's, you know, not significant, maybe 10 percent 11 more. 12 Q. Have you ever been involved in a case dealing with issues 13 pertaining to the indications for performing a colectomy 14 subsequent to findings having been made -- 15 A. No. 16 Q. -- in a colonoscopy? 17 A. No. 18 Q. You're insured by whom, if you know? 19 A. Medical Productive. 20 Q. Med Pro? Okay. 21 Do you know Dr. Gottesman? 22 A. No. 23 Q. Do you know Dr. Eisenstat? 24 A. No, sir, I don't. 25 Q. You never met either one of them? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 9 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Never met them, never talked to them. 2 Q. I have a report -- You'll have to excuse me. I've got a 3 bit of a cold here. I'll try not to contaminate the room too 4 much. 5 A. That's all right. 6 Q. I've got a report in front of me dated June 26th, 1997, 7 written by you. 8 A. Uh-huh. 9 Q. I assume you've had an opportunity to look at it? 10 A. Yeah, I've just looked at it this morning. 11 Q. Is that the only report you've ever written in this case? 12 A. Yes. 13 Q. Is it the only draft of that report that you've ever 14 written? 15 A. As far as I know, it is, yeah. 16 Q. In other words, this report, as it appears in front of me, 17 is the report that you wrote to Mr. -- 18 A. Whoever it was there. 19 Q. -- Conway at the time? 20 A. Yes. 21 Q. And that's the only draft you ever did? 22 A. As far as I know, yes, sir. 23 Q. Okay. You had, presumably, been sent a file and certain 24 materials to review? 25 A. Yes, I was. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 10 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And from your letter, it's not possible to tell what those 2 materials were. 3 A. Yeah. 4 Q. Do you have them here? 5 A. Yes, I do. I have deposition of Dr. Gottesman, deposition 6 of Dr. Eisenstat, Dr. Gottesman's office chart, office records 7 of Dr. Eisenstat, and then Hillcrest Hospital records dated 8 11-7-84 to 1-14-84. 9 Q. That's the entirety of -- 10 A. Yes. 11 Q. -- what you reviewed? 12 A. Yes. 13 Q. So it would be fair to say that you've never seen -- 14 A. Actually, I think some of these are not -- are later -- not 15 in the Hillcrest. There's data in here on the office records 16 subsequent to 1984. 17 Q. In other words, you've made reference to Dr. Eisenstat's 18 office chart? 19 A. Uh-huh. 20 Q. And you didn't but you might also have, had you thought of 21 it, made reference to Dr. Gottesman's office chart, both of 22 which include materials generated after 1984? 23 A. I think that's right, yeah. I'd have to recheck that. I 24 think there are some dates in there that are past 1984. 25 Q. Suffice it to say, except to the extent that there may be * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 11 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 materials generated in those two physicians' office charts, you 2 have not looked at any other hospital materials -- 3 A. No. 4 Q. -- either from Hillcrest Hospital or from Lake Hospital? 5 A. No, that's all I have. 6 Q. Nor have you looked at any materials from Saint -- from 7 Mariemont Hospital -- 8 A. No. 9 Q. -- in 1998? 10 A. No. 11 Q. Nor have you seen any materials from the Cleveland Clinic, 12 1998? 13 A. No, sir. 14 Q. Are you aware of those hospitalizations? 15 A. No, I wasn't aware of them. 16 Q. I don't see in front of you a copy of the deposition of 17 Father Walick. You've never reviewed that? 18 A. I've not seen that. 19 Q. Has anybody discussed with you the contents of Father 20 Walick's deposition? 21 A. No, not really, no. 22 Q. Okay. So you have no idea what he -- 23 A. No idea what he said. 24 Q. -- what he's testified to? 25 A. Right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 12 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. All right. Have you made any notes? 2 A. No, I haven't. I made some back in 1997, but they're long 3 since gone after I did that report. 4 Q. All right. So when you did your report, you discarded 5 your -- 6 A. Yes. 7 Q. -- notes? All right. I have to decide how fast I want to 8 talk and -- 9 A. That's all right. 10 Q. -- it depends on how much you're charging me. How much am 11 I getting charged? 12 A. $500 an hour. 13 Q. Is that your fee for depositions? 14 A. Yes. 15 Q. Is that also your fee for reviewing a chart? 16 A. No, it's $350 an hour to review. 17 Q. And to testify at trial? 18 A. $700. 19 Q. In coming to your -- before I ask you that, let me ask you 20 something preliminarily. 21 You had all those materials that we just discussed at the 22 time you wrote your report? 23 A. Yes, sir, I did. I believe I did. Let me back up a step. 24 I'm not sure whether I had the depositions at that point in 25 time. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 13 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Okay. 2 A. I think I did, but I'm not certain. 3 Q. Have you reviewed any texts or any literature in coming to 4 your opinions in this case? 5 A. No. 6 Q. And you didn't feel it necessary to go back to any 7 literature from 1984 to -- 8 A. No. 9 Q. -- make a determination as to what the standard of care 10 might have been back then? 11 A. No. I was alive and well then, and I pretty much remember 12 what that was like. 13 Q. Okay. Looking at your report, I get the sense that we're 14 going to be talking about, to some extent, the relationship that 15 exists in a referral setting -- 16 A. Uh-huh. 17 Q. -- between a gastroenterologist and a general surgeon? 18 A. Yes, sir. 19 Q. I take it, in your practice you, from time to time, have to 20 make a referral to a general surgeon? 21 A. Quite frequently, as a matter of fact, yes. 22 Q. You do so, I take it, because you don't have a surgical 23 practice yourself? 24 A. I hope not. 25 Q. And is there one surgeon that you tend to use? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 14 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. No, I pretty much spread the wealth around; so to speak. 2 We have a lot of very good surgeons here, and I pretty much 3 alternate them. 4 Q. So your practice is entirely at Ohio State University? 5 A. Yes, it is. I do some outpatients and outpatient scopes at 6 a satellite office called the Stoneridge, but that's all part 7 and parcel of Ohio State University medicine. 8 Q. So from time to time during your practice, you do a 9 colonoscopy and you observe findings -- 10 A. Uh-huh. 11 Q. -- that would suggest a surgeon might be needed? 12 A. Yes, sir. 13 Q. In this case, as you know -- Well, what's your 14 understanding as to the timing of the general surgeon's 15 involvement? 16 A. In this case? 17 Q. As it relates to or in -- vis-a-vis the colonoscopy being 18 done; how quickly was that general surgeon brought in? 19 A. I think within a matter of hours, I think it was, and I 20 believe I got that from one of the depositions. It might have 21 been Dr. Eisenstat's or Dr. Gottesman. It doesn't really say so 22 in the chart, but there's some reference to when the colonoscopy 23 was completed. 24 I believe it was either Dr. Eisenstat or Dr. 25 Gottesman that said they might have run into one another, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 15 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 briefly discussed that. Formal consultation was done, I 2 believe, later on the same day as the colonoscopy was done, and 3 the surgery was done the following day. 4 Q. By the "formal consultation," you mean what? 5 A. That the Dr. Gottesman, either he or his office, contacted 6 Dr. Eisenstat to see this patient. 7 Q. I'm going to ask you to assume that it was perhaps a little 8 bit different -- 9 A. Might have been. Might have been. 10 Q. -- than you explained it. 11 A. Might have been. 12 Q. I'm going to ask you to assume that the colonoscopy was 13 done in the morning. -- 14 A. Okay. 15 Q. -- at Hillcrest Hospital. 16 A. Okay. 17 Q. Subsequent to the colonoscopy, which, by the way, was done 18 with, as I assume is usually the case, with the patient sedated; 19 is that right, how you usually do it? 20 A. That's right. That's how we usually do it. 21 Q. Subsequent to that, the patient was in the endoscopy suits 22 recovering from the procedure, and within an hour or so after 23 that procedure had been done, Dr. Eisenstat and Dr. Gottesman 24 both appeared in the endoscopy suit together and spoke with 25 Father Walick, who was, at the time, recovering from the * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 16 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 procedure that had just been done. 2 A. Okay. 3 Q. And I want you to assume that, at that time, a conversation 4 took place between the three of them and that that was the 5 consultation. 6 A. Okay. 7 Q. Is that a situation that arises within your practice from 8 time to time? 9 A. Yes, it is. 10 Q. Okay. And I want you to further assume that, at that time, 11 a discussion was had as to what the findings were 12 endoscopically. 13 A. Okay. 14 Q. And that that was the one and only opportunity that existed 15 in this case for Father Walick to learn about the medical facts 16 surrounding his condition and to give consent to a surgery. 17 A. Okay. 18 Q. I want you to further assume that the biopsy results and 19 the polypectomy results had not yet come back. 20 A. All right. 21 Q. Which would be the reasonable thing to assume, given the 22 timing I've suggested to you -- 23 A. Uh-huh. 24 Q. -- is it not? 25 MR. POLING: Objection. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 17 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 THE WITNESS: Right. 2 BY MR. HIRSHMAN: 3 Q. Is it your practice to get consent from your patients for a 4 surgery, in the nature of a colectomy to be performed because of 5 the existence of polyps, without first having biopsy results to 6 review? 7 MR. POLING: Objection. 8 THE WITNESS: In most instances you like to see the 9 histology. There are some instances, particularly this case, 10 that regardless of what that biopsy shows, you feel a need to 11 send that patient to surgery. 12 BY MR. HIRSHMAN: 13 Q. You're suggesting to me that it was not necessary? 14 A. No, I didn't say that. I said there are some instances in 15 which, regardless of what that biopsy shows, you're going to 16 send that patient to surgery. 17 Q. All right. And what I'm asking you is this: Would you, 18 under the circumstances I've just described, get consent from 19 your patient for a colectomy without first revealing to your 20 patient, and to yourself, the nature of the histology -- 21 MR. POLING: Objection. 22 BY MR. HIRSHMAN: 23 Q. -- and its implications? 24 A. Number one, I never get consent for surgery for a 25 colectomy; that's not what I do. That's the surgeon's * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 18 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 responsibility. 2 My job, and Dr. Gottesman's job, is to make an assessment 3 about whether or not we think a patient needs surgery, confirm 4 the surgery. 5 No, you wouldn't get consent while a patient is in the 6 post-sedative period to do much of anything, unless you had a 7 family member or somebody else there, but that wouldn't be 8 anything I would do in the first place. I would never ever talk 9 to a patient to get consent for surgery. 10 Q. All right. So -- But you're part of that process of 11 informing a patient of what was found colonoscopically, and what 12 it might mean, depending on what a surgeon says, as to whether 13 or not the surgery is needed? 14 MR. POLING: Objection. 15 MR. HOLLERN: Objection form. 16 THE WITNESS: And part of the process is I inform the 17 patient what the patient had and what I think needs to be done, 18 yeah. 19 BY MR. HIRSHMAN: 20 Q. Okay. 21 A. And what's done is ultimately up to the surgeon. 22 Q. Okay. So it would be fair to say that under the 23 circumstances of a case such as this, where a patient is being 24 considered for surgery as a result of colonoscopic findings, the 25 obligation to provide the patient with information needed for * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 19 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 informed consent belongs to the general surgeon, not to the 2 gastroenterologist? 3 MR. POLING: Objection. 4 THE WITNESS: Yes, sir; that's what I believe, yes. 5 BY MR. HIRSHMAN: 6 Q. That's your opinion? 7 A. Well, I think that's not just my opinion. I think that's 8 standard practice and what's done. 9 Q. All right. So in this case, looking at the facts as you've 10 looked at them, it was Dr. Eisenstat's obligation to obtain an 11 informed consent from Father Walick for any surgery that he 12 intended to do? 13 A. Yes, sir. 14 MR. POLING: Objection. 15 BY MR. HIRSHMAN: 16 Q. You indicated a few moments ago that it would be 17 inappropriate to seek to obtain an informed consent for surgery 18 from a patient who's recovering in an endoscopy suit from a 19 colonoscopy where he was administered a sedative? 20 A. Yes, sir. 21 MR. POLING: Objection. 22 BY MR. HIRSHMAN: 23 Q. Tell me why. 24 MR. POLING: Objection. 25 THE WITNESS: Well, because depending on -- I can't * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 20 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 recall exactly what the sedative was but most -- in 1984 -- I 2 mean, I should know that because I reviewed that. But in 1984, 3 the general standard was to give Demerol or Valium and/or both. 4 Well, both of those things can result in sort of short-term 5 memory loss. And in 1984 we used to -- specifically used to 6 tell people not to make any big decisions about anything in 7 their life for at least six hours after the sedation. 8 MR. POLING: Move to strike. 9 BY MR. HIRSHMAN: 10 Q. That's because of not only the memory loss but the effects 11 those medications have on a patient's ability to judge the 12 severity of the circumstances that are being presented to them? 13 MR. POLING: Same objection. 14 THE WITNESS: That's part of it, yes. 15 BY MR. HIRSHMAN: 16 Q. Now, if one is engaged in a conversation with a patient in 17 the immediate period after a colonoscopy, and one describes to 18 that patient the findings that appeared colonoscopi- -- 19 colonoscopically, in essence, that's all one could describe, 20 given the timing of, the circumstances of the meeting that we've 21 just described, right? 22 MR. POLING: Objection. 23 BY MR. HIRSHMAN: 24 Q. In other words, based on your review, no frozen section 25 that was done? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 21 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. I don't know if anybody does any frozen sections. 2 Q. On a colon? 3 A. On a colon biopsy. 4 Q. So if a conversation, in fact, occurred shortly after the 5 colonoscopy, the only thing that could have been described to 6 Father Walick in terms of what was in his colon would have been 7 what was visualized in the scope, without the benefit of 8 histological confirmation? 9 A. That's right. 10 Q. Now, it's your understanding, I believe, that in this 11 case -- Well, what is your understanding as to what was believed 12 to have been seen colonoscopically? 13 A. Colonoscopically, they saw five to six polyps, most of 14 which were in the left side of the colon; a larger, 15 two-and-a-half- to three-centimeter sessile, flat type of polyp 16 in the right colon; and another, one-centimeter, polyp also in 17 the right colon. 18 Q. In the cecum? 19 A. In the cecum, right, same thing. 20 Q. I'm just being more specific. 21 A. Okay. 22 Q. I'm not disagreeing with you. 23 A. Okay. 24 Q. At that time, none of those polyps could be identified as 25 to whether they were malignant or pre-malignant, could they? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 22 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. No. 2 Q. I want you to assume that during this conversation -- Well, 3 let me go one step further. 4 What's your understanding as to why Dr. Gottesman called in 5 Dr. Eisenstat? Is there a particular lesion that caught his -- 6 A. Yeah, that was it. 7 Q. -- that was of concern to him? 8 A. It's the two-and-a-half to three-centimeter, flat polyp in 9 the right colon that was his concern. 10 Q. The one that he describes as either being in the ascending 11 colon or at the hepatic flexure? 12 A. That's right. 13 Q. The other polyp, with the exception of the one at the 14 hepatic flexure and with the exception of the one at the cecum, 15 were all successfully removed by Dr. Gottesman; were they not? 16 A. They were. 17 Q. Okay. And by virtue of their removal, whether one -- 18 whether the histology results were to come back as showing an 19 inflammatory polyp or an adenomatous polyp, their removal, in 20 fact, constituted effective therapy for the condition? 21 A. That's right. 22 Q. And we further know that the polyp that was at the cecum, 23 according to the testimony of Dr. Gottesman, was removable, 24 correct? 25 A. Correct. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 23 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. He simply did not remove it because he had already 2 determined that he would need to send Father Walick to a surgeon 3 because of the lesion at the hepatic flexure? 4 A. That's right. 5 Q. All right. So, in fact, there was only one lesion in the 6 entire colon that was the motivation for bringing in a surgeon? 7 A. That's exactly right. 8 Q. I want you to assume that during the discussion that took 9 place between Father Walick, Dr. Eisenstat, and Dr. Gottesman in 10 the endoscopy suit, that that hepatic flexure lesion was 11 described as being precancerous. Is that your understanding as 12 to how it was described, from what you've read? 13 A. I don't know. 14 MR. HOLLERN: Objection to form. 15 THE WITNESS: I don't recall ever reading anything to 16 that effect, no, sir. I don't know how it was described. 17 BY MR. HIRSHMAN: 18 Q. You haven't read -- 19 A. No. 20 Q. -- Father Walick's deposition? 21 A. No, I haven't. 22 Q. I want you to assume that the only evidence in this case is 23 that that hepatic flexure lesion was described as being 24 precancerous. It was further described as being unremovable, 25 and that based on that description, a decision was made, to * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 24 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 which consent was obtained from Father Walick -- 2 A. Okay. 3 Q. -- for surgery. 4 A. Okay. 5 Q. Let's not discuss the type of surgery, simply a colectomy 6 of one sort or another -- 7 A. Uh-huh. 8 Q. -- is that a fair characterization -- 9 MR. POLING: Objection. 10 MR. HOLLERN: Objection to the form. 11 BY MR. HIRSHMAN: 12 Q. -- of the nature of that polyp at the hepatic flexure? 13 MR. POLING: Same objection. 14 THE WITNESS: That it was -- 15 BY MR. HIRSHMAN: 16 Q. Precancerous? 17 A. Well, any polyp that you look at, that always goes to your 18 mind, particularly a large, flat polyp. It certainly was 19 unresectable -- 20 Q. All right. 21 A. -- through the colonoscope. 22 Q. Based on the histology, you would agree that that was not a 23 fair characterization of the nature of that polyp? 24 A. Based on histology, that's right. 25 Q. Okay. I want you to assume that -- Well, let's back up a * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 25 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 second. 2 You're aware of the biopsy results from the biopsy that was 3 done by Dr. Gottesman of that hepatic polyp? 4 A. Yes. 5 Q. What were the results? 6 A. The biopsy results were that it was an inflammatory polyp. 7 Q. Did Father Walick have a right to know that information and 8 the implications of that information prior to surgery 9 proceeding? 10 A. I believe so, yes. 11 Q. Why? 12 A. Well, I think it's just that when you do a procedure and 13 you do biopsies, you tell people what you found. 14 Q. And the findings of that biopsy were something, I think 15 we've already established -- 16 A. Uh-huh. 17 Q. -- which should have been obtained by Dr. Eisenstat prior 18 to proceeding with the surgery? 19 A. Well, the nature of that polyp, I think, wouldn't have made 20 a whole lot of difference what that biopsy showed. The nature 21 of that polyp is such that it needs to come out. You simply 22 can't do enough biopsies of a two-and-a-half- to 23 three-centimeter polyp to assure yourself that there's no 24 abnormal change in there. 25 Now, it turns out there wasn't -- or at least we think * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 26 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 there wasn't. Again, that's predicated on the section the 2 pathologist did. I don't know if they did multiple sections. 3 But the fact is when you colonoscope the patient, do biopsies, 4 there's no way in the world you can do enough biopsies to assure 5 anybody that there was adenomatous change. 6 If there was adenomatous change, there was no question that 7 had to come out. And there's no other way than to do 8 colonoscopic biopsy. And this is a hypothetical situation. I 9 suppose there's no way that Dr. Eisenstat felt this thing needs 10 to come out no matter what that thing shows and needs to come 11 out. I don't know. 12 Had I been the gastroenterologist, I can tell you I would 13 have wanted that polyp out no matter what that histology showed 14 me. 15 Q. Were there options? Let me tell you there -- 16 A. The only other thing was to take it out colonoscopically, 17 and the size and the flatness of that thing runs a pretty high 18 risk of perforation and death. 19 Q. I will tell you that the options that have been testified 20 to as having been explained to Father Walick were essentially 21 two in nature. Based on the conversation that took place 22 immediately after the colonoscopy, one was to have surgery 23 performed; the other was to follow this lesion or polyp over 24 time. 25 Was the second alternative I just mentioned, to follow the * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 27 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 lesion, to follow the polyp colonoscopically with surveillance 2 over time, inappropriate advice to give? 3 A. Inappropriate? 4 Q. Inappropriate advice to give? 5 A. No, sir, I don't think it's inappropriate. There really is 6 no standard. If you're looking for a standard of care with 7 regard to that course, I don't think there is one. 8 I think that's a very judgmental thing amongst 9 gastroenterologists, among physicians in general. And you look 10 at this thing and it really depends on what -- it's kind of in 11 an eye of the beholder, how concerned about this thing you are. 12 If this thing was on a pedicle or -- I'm sure it's 13 reasonable to follow. I personally don't think it's 14 inappropriate. I personally would not have done that. 15 Q. There is more than one way to approach -- 16 A. Yes, sir. 17 Q. -- this lesion, such as this lesion at the hepatic flexure? 18 A. That's right. 19 Q. One way would have been to refer the patient for surgery, 20 and then, presumably, the surgeon would decide what surgery is 21 appropriate? 22 A. Yes, sir. 23 Q. The other way would be to follow it over time by doing 24 repeat colonoscopies and presumably repeat biopsies of this 25 lesion, correct? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 28 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. That's right. 2 Q. If your belief is that this is a villous adenoma, you're 3 probably going to lean very heavily on the patient to have this 4 thing removed by surgery? 5 MR. POLING: Objection. 6 THE WITNESS: If I thought it was a villous adenoma, 7 I'm not sure I'm good enough to know a villous adenoma to look 8 at it, but yeah. 9 BY MR. HIRSHMAN: 10 Q. In other words, villous adenomas aren't labeled as such 11 when you look at them through a scope? 12 A. No, I don't think so. 13 Q. And villous adenomas frequently can and are 14 indistinguishable from an inflammatory polyp? 15 A. Colonoscopically, yes. 16 Q. Suffice it to say that the nature of the concern that a 17 physician would have would be significantly different if one 18 were working under the assumption that this was a villous 19 adenoma, as opposed to the level of concern you would have if 20 you had, at least, histological biopsy confirmation that this 21 appears to be an inflammatory lesion? 22 MR. POLING: Objection. 23 THE WITNESS: Your concern would be high if it was a 24 villous adenoma. 25 BY MR. HIRSHMAN: * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 29 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Correct. And the concern for a cancer showing up down the 2 road would certainly be higher if you thought it was a villous 3 adenoma? 4 A. Yes, you would. 5 Q. And the advice that you would give to your patient would 6 reflect that elevated concern? 7 A. Yes, it would. 8 Q. And your urging of the patient to proceed with surgery, as 9 opposed to surveillance, would be significantly higher if you 10 thought it was a villous adenoma? 11 A. Yes, it would. 12 Q. All right. And that advice that you give your patient 13 would certainly show up, more often than not, in the decisions 14 that your patient makes? 15 A. Yes, sir. 16 Q. Most of your patients tend to take your advice? 17 MR. POLING: Objection. 18 THE WITNESS: Most of them do. I'm never sure that's 19 the right thing they should do anymore. 20 BY MR. HIRSHMAN: 21 Q. Now, Dr. Gottesman, apparently, stopped his performance of 22 polypectomies when they got to the hepatic flexure, and 23 concludes in his operative note that he is going to refer Father 24 Walick to a surgeon for what kind of a procedure; do you 25 remember what it is that he -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 30 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. I think he said a hemicolectomy. 2 Q. What's that mean? 3 A. That could mean anything from half of the colon to just the 4 right colon, right colon is the cecum, and a few inches of the 5 terminal ilium. 6 Q. If one were thinking in terms of a segmental resection, one 7 would not use the term "hemicolectomy," would one? 8 A. Oh, I think sometimes that's used, yes, sir. I think 9 hemicolectomy is oftentimes used for a partial colectomy or a 10 segmental colectomy, yes. I think that's oftentimes used 11 interchangeably. Rightly or wrongly, that's sort of what's 12 done. 13 Q. Okay. So the use of the term "hemi," which -- 14 A. Doesn't mean half. 15 Q. -- doesn't necessarily mean half? 16 A. No. 17 Q. It can mean less than half? 18 A. It can mean less than half. It can be a little more than 19 half. 20 Q. But the term "segmental resection," which might just be a 21 few inches -- 22 A. That's right. 23 Q. -- of large bowel, is a procedure which can be subsumed 24 under the category of hemicolectomy? 25 A. Yes. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 31 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Okay. And why is it, from your reading of the records and 2 the depositions, that Dr. Gottesman was speaking in terms of a 3 hemicolectomy rather than a subtotal colectomy? 4 A. Because the lesion was confined to the right side. 5 Q. And from his colonoscopic observations, as well as your 6 observations from reading his operative note, Dr. Gottesman's 7 operative note, that's all that was necessary from a medical 8 perspective? 9 A. From a gastroenterologist's standpoint, yeah. 10 Q. Right. So you would agree that if more than a 11 hemicolectomy was done, it would have been based on findings of 12 the surgeon intraoperatively? 13 A. Yes. 14 Q. All right. Have you looked at Dr. Eisenstat's operative 15 note? 16 A. Yes, sir, I have. 17 Q. Do you see anything in that note that reflects a cogent 18 reason for doing more than a hemicolectomy? 19 MR. POLING: Objection. 20 THE WITNESS: Well, I mean, he talks about in his 21 deposition -- 22 BY MR. HIRSHMAN: 23 Q. Let's talk about his operative note. That's what I want to 24 refer you to now, and then if you feel it's fair for me to go 25 beyond that, we will. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 32 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 But his operative note was made at the time. His 2 deposition occurred many years later when, by his own reckoning, 3 he has no recollection of the events. 4 A. No, there's nothing in the operative note that explains why 5 he did that, no. 6 MR. POLING: Move to strike. 7 BY MR. HIRSHMAN: 8 Q. In fact, if you read his operative note -- Let me back up a 9 step. 10 The hemicolectomy, or the portion of the colon that was the 11 focus of Dr. Gottesman's attention was the right colon? 12 A. Yes, sir. 13 Q. As you read Dr. Eisenstat's note, from the very beginning 14 of that surgery, his attention is directed to what part of the 15 colon? 16 MR. POLING: Objection. 17 BY MR. HIRSHMAN: 18 Q. If you want me to provide you -- 19 A. I'm not sure I remember that, no. I think, as I recall, it 20 looks like that they -- he said "about to do a subtotal 21 colectomy." I don't know whether the attention was directed to 22 one side or the other more than the other, but it looks to me 23 like the attention initially looked at the subtotal colectomy. 24 Q. From the start? 25 A. Yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 33 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 MR. POLING: Move to strike. 2 MR. HOLLERN: Just so that the doctor's -- the 3 record's clear, when you say the "intention," you're talking 4 about whose intention? 5 THE WITNESS: Dr. Eisenstat's. 6 MR. POLING: Same objection, same motion. 7 BY MR. HIRSHMAN: 8 Q. Now, this pathology -- Well, the colonoscopy was done on 9 November 6th, 1984? 10 A. Uh-huh. 11 Q. It was done by Dr. Gottesman. Subsequently, very shortly 12 after the colonoscopy and before the path results came back, 13 called in Dr. Eisenstat. 14 Whose responsibility is it to obtain the path results under 15 those circumstances? 16 A. I'm not -- Well, I think both doctors have responsibility. 17 I think it's the responsibilities of both of them to eventually 18 look at that pathology, yes. 19 Q. It would be the responsibility of Dr. Eisenstat to view 20 that pathology -- If we assume that Dr. Gottesman did not have 21 specific information as to when this procedure was scheduled, it 22 would be Dr. Eisenstat's responsibility to obtain the results of 23 the pathology before proceeding to surgery? 24 MR. POLING: Objection. 25 THE WITNESS: Well, I think I addressed that a little * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 34 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 bit earlier. I think that, sure, you want to know the 2 pathology, but I think the nature of that lesion indicated that 3 this patient needed surgery for the reasons that I've 4 enumerated; that there's no way that a biopsy is going to tell 5 you whether or not there's adenoma changes in there. 6 While it is true that probably 75, 80 percent of the 7 time you are obligated to know that pathology before you operate 8 on a patient, if you're a surgeon, there are some instances, 9 such as this one, where the nature of that lesion, as it 10 appeared colonoscopically, dictate that you need to do surgery 11 even if the biopsy comes back benign. 12 BY MR. HIRSHMAN: 13 Q. Given our previous discussions about informed consent and 14 options being provided to the patient, you would agree that, to 15 the extent that the two options are being presented to the 16 patient, one being surgery, one being surveillance and 17 follow-up, that information is essential to an intelligent 18 decision being made by a patient as to which of those two 19 options he wishes to choose? 20 A. That's true. But in the real world, that's not the way it 21 happens. Doctors advise patients about what they think is the 22 best thing for them to have. Now, they may offer options, but I 23 believe the standard of practice is those other options are 24 certainly not weighed as heavily as the ones that you want the 25 patient to have. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 35 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 (Pause.) 2 Q. Was this an emergency surgery? 3 A. No, sir. 4 Q. Was there any compelling reason why this procedure needed 5 to be done the very next day? 6 A. No. 7 Q. Would anything have been lost -- 8 A. No. 9 Q. -- if an additional day or two had been allowed to 10 transpire so that pathological results could be digested and -- 11 digested by the physicians and explained to the patient? 12 A. No. 13 Q. Do you have an opinion, based on what you've reviewed, as 14 to whether Dr. Eisenstat or Dr. Gottesman had the results of the 15 pathology from the colonoscopy back by the time the colectomy 16 was performed? 17 A. No, they did not. 18 MR. POLING: Objection. 19 BY MR. HIRSHMAN: 20 Q. It's your opinion they did not have it back? 21 A. That's right. 22 Q. That's based on what? 23 A. Based on a letter that, I believe, Dr. Eisenstat sent to 24 Dr. Gottesman expressing surprise that these turned out to be 25 not adenomatous polyps. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 36 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 MR. POLING: Move to strike. 2 BY MR. HIRSHMAN: 3 Q. In addition to that, his operative note makes reference to 4 his preoperative diagnosis and postoperative diagnosis, and in 5 both instances he refers to it as a "villous adenoma"; does he 6 not? 7 A. Yes. 8 Q. That also supports your conclusion that he did not have the 9 path results? 10 A. Yes. 11 Q. So based on a previous discussion we had, can I conclude 12 that it would not be substandard care in 1984, given the results 13 of the pathology from the colonoscopy, to follow the patient and 14 treat him nonoperatively? 15 A. No, I mean, that's one option. It's not substandard care, 16 no, to do that. 17 Q. That would be an appropriate way to handle this? 18 A. It's an appropriate way to handle it. It's not the best 19 way. 20 Q. Okay. It's one that comports with acceptable standards of 21 care? 22 A. Yes. 23 Q. On the other hand, if the lesion at the hepatic flexure was 24 a villous adenoma, such a known operative approach would be 25 inappropriate care, correct? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 37 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Absolutely inappropriate. 2 Q. All right. So without the results of the pathology report 3 from the colonoscopy, the only appropriate treatment would have 4 been surgical treatment? 5 A. Sorry, say that again. I'm not sure I followed that one. 6 Q. Without the results of the pathology report from the 7 colonoscopy, if one is harboring the belief that this is a 8 villous adenoma, the only appropriate care would be surgical 9 care? 10 A. That's right. 11 Q. All right. Let's talk a moment about Father Walick's risks 12 for cancer based on the circumstances that were available -- 13 circumstances that existed on November 6th -- 14 A. Okay. 15 Q. -- 1984. Now, you've probably, in reading Dr. Eisenstat's 16 deposition, noted that he, on numerous occasion, makes reference 17 to the fact that Father Walick's father had -- 18 A. Had colon cancer. 19 Q. -- had colon cancer? 20 A. Yes, sir. 21 Q. Do you recall when that was diagnosed? 22 A. It was about a year after this. It was 1985. I don't know 23 whether it was a year or not. 24 Q. Clearly, that was not something that anybody had any 25 knowledge of at the time of the 1984 surgery? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 38 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. No, there's no mention made of that anywhere in the record. 2 Q. Okay. Well, let's accept it as a post hock justification. 3 What is the risk of -- Is there an increased risk of colon 4 cancer associated with a family history of a first degree 5 relative -- 6 A. Yes, there is. 7 Q. -- with colon cancer? 8 A. Yes, there is. 9 Q. Define that risk. 10 A. The risk is somewhere between 10 to 13 times greater than 11 the average population. 12 Q. What does that mean in terms of actual risk? 13 A. Oh, I don't know. Actual risk, I'm not sure I can 14 translate that. Actual risk, less than 5 percent, probably less 15 than 2 percent overall. 16 Q. Certainly, it's inappropriate to take out the colons of 17 every first degree family member who has a family member who has 18 colon cancer? 19 MR. POLING: Objection. 20 THE WITNESS: Not only inappropriate, you don't do it. 21 BY MR. HIRSHMAN: 22 Q. You don't do it? 23 A. That's right. 24 Q. So having a father with colon cancer does not justify doing 25 a subtotal colectomy, does it? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 39 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Not -- Not if there's not anything wrong with the colon, 2 no, sir. 3 Q. All told, Father Walick had two adenomatous polyps in his 4 colon, right? 5 A. I thought there were more than that. I thought he had 6 three. I thought he took two out on the left side and, I 7 thought, the other one in the cecum was an adenomatous polyp. 8 Q. Why don't you take a look. I don't believe it is, but if 9 you think it is from something you've read, I'd like to know 10 what it is that makes you think so. 11 A. If I can find it. 12 Q. If you can't, I have a copy of the records that I've been 13 through numerous times; so I can find it for you. 14 A. It would be easier for you if you could. 15 Q. Do you want the colonoscopic report? 16 A. I want the colonoscopic report and the surgical path 17 report. 18 Q. Okay. Here they are, both of them. I have placed in front 19 of you first Dr. Simms' report and then over here, this next tab 20 would be the surge path? 21 A. Okay. He doesn't say what the polyp was. They don't say 22 what the polyp was at the time of the colectomy. He had two 23 that they took out -- that Dr. Gottesman took out with the 24 colonoscope, and I don't see that this really says what that 25 other polyp was in the right colon. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 40 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 They call it localized inflammatory polyposis for the one, 2 and I don't know that he ever -- the pathologist ever really 3 tells us about the other one. Does it -- 4 Q. He tells you what they did not find in any of the material 5 from the surgery? 6 A. He said there's no villous adenoma, but he doesn't 7 specifically say what that polyp was. 8 Q. He also says there's no adenomatous material whatsoever, 9 does he not? 10 A. Doesn't say that, no. 11 Q. Let me see if I can find it for you. I might be mistaken. 12 A. He doesn't make the statement that there's no adenomatous 13 material. 14 (Documents being reviewed.) 15 Q. There's nothing that suggests that that polyp in the cecum 16 is, in fact, an adenomatous polyp; is that a fair statement? 17 A. Well, it had the appearance of an adenomatous polyp on 18 colonoscopy, but there's nothing in that path report. 19 Q. The appearance of an adenomatous polyp you say? 20 A. That's the way Dr. Gottesman interpreted that, yes, sir. 21 Q. He says that in the cecum there was a six- to 22 seven-millimeter sessile polyp, which was left alone, but that's 23 the only description I see; is that correct? 24 A. Yes. 25 Q. What is it about that description that allows you to say * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 41 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 that it's an adenomatous polyp? 2 A. There isn't. I was mistaken. 3 Q. So there are two polyps from Father Walick's colon that 4 have been proven to be adenomatous polyps? 5 A. That's right. 6 Q. The measurements of Dr. Simms of those two polyps indicate 7 that, pathologically, both of them are less than one centimeter 8 in size, correct? 9 A. I think that's right, yes. 10 Q. What is the risk of cancer associated with two adenomatous 11 polyps less than one centimeter in size? 12 A. Well, therein lies the problem. These are not less than 13 one centimeter in size. Risk of -- Well, anytime you take out a 14 colon or a polyp, a polyp shrinks. You don't have any blood 15 supply to it. 16 A polyp is much smaller when you take it out than when it 17 is in the body. So it's a two-and-a-half- to three-centimeter 18 polyp. The risk of cancer in a polyp is directly related to 19 size. Beyond two centimeters, the risk is greater. 20 Q. We're talking about the adenomatous polyps? 21 A. That's right. 22 Q. None of those are two-and-a-half to three centimeters in 23 size, are they? 24 A. No, there was one, one by one-and-a-half, that was a 25 pedunculated polyp that was on the one side, and then there was * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 42 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 one, a multi-lobulated, two, two-and-a-half-centimeter polyp. 2 Q. Which has been proven to be inflammatory? 3 A. Right. 4 Q. Depending on whether you look at the colonoscopic 5 measurement or whether you look at the pathological measurement, 6 you'll get two different measurements. By one set of 7 measurements, probably one of them is greater than one 8 centimeter, the other less? 9 A. That's right. 10 Q. By the other set of measurements, they're both less than 11 one centimeter in size, pathologically? 12 A. That's right. 13 Q. So let's use, for purposes of discussion, Dr. Gottesman's 14 estimates through the colonoscope as to the size of this -- 15 these two adenomatous polyps. 16 What is the additional risk associated with the existence 17 of two -- 18 A. I have no idea. 19 Q. -- adenomatous polyps? 20 A. I have no idea. 21 Q. Okay. Now, the removal of those polyps is done in order to 22 prevent the development of cancer; that's the whole reason 23 behind the removal of them, correct? 24 A. Yes, sir. 25 Q. And in point of fact, when you remove adenomatous polyps of * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 43 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 the colon and you clear the colon of adenomatous polyps, you not 2 only are preventing the -- what you're doing is preventing those 3 polyps from becoming cancer? 4 A. That's right. 5 Q. And by virtue of clearing the colon, you are, in fact, 6 reducing the risk of a patient with adenomatous polyps below 7 that of the baseline population at large, are you not? 8 A. Oh, I don't know whether it's below that. I think what 9 you've done is at least brought it back to that. I don't know 10 that those people are ever below -- at a lower risk of cancer. 11 Q. All right. Then by clearing a patient's colon of 12 adenomatous polyps and by engaging in a surveillance program 13 thereafter to catch future adenomatous polyps that might 14 develop, you are, at the very least, bringing a patient's risk 15 of developing colon cancer down to a par of the population -- 16 A. Yes. 17 Q. -- at large? 18 A. Yes, sir. 19 Q. Okay. Is there any question in your mind that those two 20 adenomatous polyps were completely removed? 21 A. No. 22 Q. Now, beyond those adenomatous polyps, of which there were 23 only two proven, there was also -- what were the other polyps, 24 inflammatory? 25 A. One, I think, said no pathologic diagnosis; the other one, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 44 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 the big one, was inflammatory. One was benign mucosa, one was 2 hyperplastic. 3 Q. None of those categories confer an increased risk of 4 cancer -- 5 A. No. 6 Q. -- on a patient, do they? 7 A. No. 8 Q. Does the fact that Father Walick was 41 years old with two 9 adenomatous polyps in his left colon, justify removal of his 10 left colon, in your opinion? 11 A. No. 12 MR. POLING: Objection. 13 (Pause.) 14 BY MR. HIRSHMAN: 15 Q. Now, we never did determine -- I don't want to say "we." 16 I'm not part of this. 17 Dr. Eisenstat and Dr. Gottesman never did determine the 18 etiology or the reason for the polyp at the hepatic flexure? 19 A. How do you mean the "reason" for it? 20 Q. Well, we know it was a -- it was described pathologically 21 as being an inflammatory lesion? 22 A. That's right. 23 Q. What mechanisms can cause the creation of an inflammatory 24 polyp? 25 A. Most inflammatory polyps, particularly inflammatory polyps * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 45 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 of that size are a consequence of inflammatory bile disease, 2 Crohn's disease, ulcerative colitis, sometimes other types of 3 infectious diarrhea, you almost never see those. It's almost 4 always confined to ulcerative collitis and Crohn's disease. 5 Q. Ischemia can cause that? 6 A. No. 7 Q. No? 8 A. Not that I know of. 9 Q. So ulcerative colitis or Crohn's disease or infectious 10 diarrhea? 11 A. Sometimes infectious diarrhea. Enteropathic E. Coli, 12 amebiasis can do it. 13 Q. So we don't know -- well -- 14 A. Well, they say he had Crohn's disease. 15 Q. Well, the pathologist indicates that there was a crypt -- 16 A. Crypt abscess. Crypt abscesses are the hallmark of Crohn's 17 disease and ulcerative colitis. You can see them in other 18 things, but he had no evidence that he had infectious diarrhea. 19 Q. I just took the deposition of Dr. Simms the other day, who 20 is the pathologist who did the first pathology -- 21 A. Uh-huh. 22 Q. -- and who, in his path report, makes reference to Crohn's 23 disease. 24 A. Yes, sir. 25 Q. He, in his deposition, confirmed my suspicion from reading * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 46 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 his report that he is unwilling to make a diagnosis of Crohn's 2 disease based on the findings that existed. 3 A. Well, then he shouldn't have said it there. 4 Q. He didn't make a diagnosis. 5 A. What can I tell you? I mean, it sure -- When I read 6 this -- I don't mean to be facetious about this and criticize 7 him. I mean, when I read this, it looks like he's describing 8 Crohn's disease. He's got an inflammatory polyp, he's got crypt 9 abscesses, and he's describing what's Crohn's disease. 10 Now, he may be unwilling to call it that because he has a 11 limited specimen that he's looking at, but -- 12 Q. Suffice it to say that treatment for Crohn's disease is not 13 surgery? 14 A. Not unless you have dysplasia or cancer. 15 Q. None of which is seen here, right? 16 A. Well, yes, sir. He had dysplasia. By definition, an 17 adenoma is a dysplastic lesion. 18 Q. Are you suggesting that on the basis of Crohn's disease, a 19 colectomy of this -- 20 A. You could certainly make a case for that. 21 Q. A total colectomy was indicated? 22 A. Yes, sir. When you have Crohn's disease and a dysplastic 23 adenoma, you could certainly make a case for that. And, by 24 definition, an adenoma is dysplasia. You can make a very good 25 case for doing a subtotal colectomy. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 47 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. You're aware of Dr. Eisenstat's communication, of course, 2 where he -- to Dr. Gottesman, the same communication you made 3 reference to before? 4 A. Yeah, the one where he said he was surprised, yes, sir. 5 Q. He also says, at that time, that this is certainly a 6 radical procedure for what was, at most, minimal Crohn's 7 disease; does he not? 8 A. That's what he said, but if it's a dysplastic lesion, it's 9 not necessarily a radical procedure. 10 Q. You don't consider it a radical procedure? 11 A. Not if it was Crohn's disease and dysplasia. 12 Q. And you're satisfied with the pathology that this was 13 indeed Crohn's disease? 14 A. Well, Crohn's disease is not just a pathologic diagnosis. 15 It's also a clinical diagnosis, and you have to combine what you 16 see pathologically with what's going on with the patient, and 17 that -- it's a combined clinical pathological diagnosis. 18 Q. What do you need to see clinically to make the diagnosis? 19 A. Pain in their abdomen, diarrhea, bleeding, sometimes they 20 have weight loss, sometimes they have abnormal small bowel 21 x-rays, abnormal barium enema. So it's really a combined 22 clinical and pathologic diagnosis. 23 Q. Okay. Is it fair to say that there is no -- that there is 24 insufficient evidence clinically to make the diagnosis of 25 Crohn's disease in this case? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 48 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Well, I don't think that evidence was there in 1984. 2 There's insufficient evidence from the standpoint that things 3 were not -- that wasn't evaluated. 4 Now, subsequent to that, when he had unexplained diarrhea 5 and steatorrhea, that could easily be diagnosed as Crohn's 6 disease. 7 Q. You're aware that Dr. Gottesman has attributed his diarrhea 8 to the loss of his bowel; are you not? 9 A. Well, you're going to have diarrhea from loss of the colon, 10 but you're going to have steatorrhea from not fat malabsorption. 11 Q. You're aware of the fact that Dr. Gottesman attributes 12 Father Walick's diarrhea to the loss of his colon? 13 A. Yes. 14 Q. Do you disagree with that? 15 A. No. 16 Q. Okay. Back to my original question. Is there sufficient 17 clinical evidence available on this patient to support a 18 diagnosis of Crohn's disease? 19 A. At the time of his surgery or subsequent to that? 20 Q. At the time of his surgery. 21 A. No. 22 Q. Subsequent to his surgery, what additional evidence of 23 Crohn's disease do you see in this patient? 24 A. Steatorrhea. 25 Q. Anything else? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 49 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Gallstones. 2 Q. Anything else? 3 A. Not that I recall, no, sir. 4 Q. Are you willing to make a diagnosis in this case of Crohn's 5 disease based on the existence of steatorrhea and gallstones? 6 A. Well, no, I think you need more information than that, but 7 you asked me what supported that. 8 Q. Suffice it to say, you have inadequate clinical information 9 with which to make a diagnosis in this patient of Crohn's 10 disease? 11 A. At that point, yes, sir. 12 Q. At any point? 13 A. Well, at any point for which I have the records. 14 Q. All right. 15 A. I don't know what's happened to him since -- Well, the 16 other records you initially told me about. 17 Q. All right. Well, you've got Dr. Gottesman's records and 18 Dr. Eisenstat's records, which go up to -- 19 A. Right. He had unexplained -- 20 Q. -- the '90s? 21 A. He had unexplained steatorrhea, and that was never really 22 explained. 23 Q. Okay. That, in and of itself, is, I guess, all I'm trying 24 to get an agreement on, does not allow you to make a diagnosis 25 of Crohn's disease? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 50 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. No; no, it doesn't. 2 Q. So based on your review of Dr. Eisenstat's records and 3 Dr. Gottesman's records, you are unable to conclude that Father 4 Walick has Crohn's disease? 5 A. That's right. I don't know whether he does or not. 6 Q. All right. My understanding is that when a patient has 7 Crohn's disease, the treatment of choice is medical therapy; is 8 that your understanding? 9 A. That's right. 10 Q. All right. And it's only when medical therapy fails and 11 the patient develops complications of his Crohn's disease, such 12 as perforations of his bowel, that surgery becomes the -- 13 becomes a treatment option? 14 A. That, plus dysplastic changes -- 15 Q. Okay. 16 A. -- in the colon. 17 Q. I'm going to ask you about certain conditions that Father 18 Walick has or has had since the surgery performed by Michael 19 Eisenstat. 20 I'm going to ask you whether you have an opinion as to 21 whether or not those particular conditions are a direct and 22 proximate result of the surgery that was performed on 23 November 7th, 1984. 24 A. Okay. 25 Q. Do you have an opinion as to whether or not Father Walick's * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 51 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 postoperative infection during that hospitalization in November, 2 spanning into December 1984, was a direct and proximate result 3 of the surgery that was performed by Dr. Eisenstat? 4 A. Yes. 5 Q. What is your opinion? 6 A. Oh, yeah, I think it was a result of surgery. 7 Q. Okay. Father Walick developed an incisional hernia 8 subsequent to the surgery of November 1984. 9 Is it your opinion that incisional hernia was due to the 10 surgery of November 1984? 11 A. By definition, it's at an incision; it's a hernia. That's 12 what it's caused by. 13 Q. He then had a surgery in 1987, is that your understanding, 14 to repair the incisional hernia? 15 A. Yes, he did. 16 Q. And you've been able to come to that conclusion by looking 17 at Dr. Gottesman's and Dr. Eisenstat's -- 18 A. Yes. 19 Q. -- office chart? 20 A. Uh-huh. 21 Q. And that surgery was necessitated and was a direct and 22 proximate result of the surgery that was performed on 23 November 7th, 1984, correct? 24 A. Yes. 25 Q. And each of those causal connections that we've just talked * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 52 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 about, you are able to testify to to a reasonable probability, 2 correct? 3 A. Yes. 4 Q. Now, Marlex mesh was used by Dr. Eisenstat during his 5 hernia repair operation, which you may or may not know. 6 A. I knew he used mesh, but I wouldn't know Marlex mesh from 7 Teflon. 8 Q. Okay. Father Walick has been complaining of diarrhea and 9 he has been complaining about that since the surgery of 10 November 7th, 1984. If I understand your prior testimony, that 11 diarrhea was brought on by the surgery of November 7th; is that 12 correct? 13 A. Yes, sir. 14 Q. That's your opinion to a reasonable probability? 15 A. Yes. 16 Q. Now, he was hospitalized in 1995. You were aware of that, 17 or were you not? 18 A. I was aware of that, yeah. Is this the one where he had 19 the acute cholecystitis or pancreatitis or something like that? 20 Q. No. 21 A. No. 22 Q. I take it, it's your opinion that his cholecystitis and 23 pancreatitis cannot be causally connected, at least, not to a 24 reasonable probability? 25 A. No. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 53 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. You don't think they can? 2 A. No, they cannot. 3 Q. Okay. The hospitalization I'm talking about, in 1995, 4 comes after those hospitalizations -- 5 A. Okay. 6 Q. -- and it's for bowel obstruction. 7 A. Okay. 8 Q. He has two surgeries performed by a Dr. Borrison. Are you 9 familiar with those? 10 A. Yes, I am. 11 Q. And how did you learn of those? 12 A. Through the office charts, I think it was, I believe. 13 Q. You would agree, would you not, that those surgeries were 14 necessitated by adhesion formation -- 15 A. Yes. 16 Q. -- brought on by the surgery of November 7th, 1984? 17 A. And the repair of the incisional hernia. 18 Q. Correct. 19 A. Yes. 20 Q. In fact, the Marlex mesh from that repair of the incisional 21 hernia was found intertwined with his small bowel, correct? 22 A. Uh-huh. 23 Q. So the surgeries of 1995 by Dr. Borrison are the direct and 24 proximate result of the surgery performed on November 7th, 1984? 25 MR. POLING: Objection. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 54 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 THE WITNESS: I don't know whether it's a result of 2 that, or whether it's the result of the incisional hernia than 3 the Marlex. It's more likely that it's a result of the 4 incisional hernia repair. 5 BY MR. HIRSHMAN: 6 Q. Which wouldn't have been done if there hadn't been an 7 operation in 1984? 8 MR. POLING: Same objection. 9 THE WITNESS: I guess, yeah. 10 BY MR. HIRSHMAN: 11 Q. Now, subsequent to those surgeries by Dr. Borrison, which 12 were, by the way, at Lake Hospital, Father Walick was 13 transferred to Heather Hill, which is a rehab center. The same 14 causal connection that applies to the surgeries by Dr. Borrison 15 would apply to that Heather Hill stay, correct? 16 MR. POLING: Objection. 17 THE WITNESS: Correct. 18 BY MR. HIRSHMAN: 19 Q. And do you hold that, both those opinions, as it relates to 20 Borrison's surgeries and to the Heather Hill stay -- 21 A. Yes. 22 Q. -- to a reasonable probability? 23 A. Yes, sir. 24 MR. POLING: Objection. 25 BY MR. HIRSHMAN: * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 55 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Now, in 1998 Father Walick had a partial bowel obstruction, 2 which brought him to Mariemont Hospital. Are you aware of that? 3 A. No. 4 Q. All right. He was then transferred to the Cleveland 5 Clinic. You were aware of that? 6 A. No, I wasn't. 7 Q. All right. So you have no opinions, I take it, regarding 8 what the -- 9 A. No, I don't know what went on during that period of time. 10 Q. We won't talk about that. 11 Do you have an opinion as to whether or not Father Walick's 12 diarrhea was caused by Inderal? 13 A. I don't know whether it was or not. I don't know whether 14 it was -- What I'm saying is I don't know whether it aggravated 15 his diarrhea from his colectomy or not. I don't know that 16 answer. 17 Q. The reality is Inderal, when it is given, slows down 18 transit time, does it not? 19 A. In most people, but there are cases where people get 20 diarrhea, particularly people who are post-cholecystectomy. If 21 you slow down, it will maybe increase your diarrhea from someone 22 who has cholecystectomy. 23 Q. One way or another, that's an aggravating factor; is that 24 your opinion? 25 A. Yes, I don't think it's a direct cause in and of itself. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 56 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 MR. POLING: Objection. 2 BY MR. HIRSHMAN: 3 Q. Have you been provided with the reports or depositions of 4 Doctors Carr-Locke and Gouge? 5 A. Reports? I have two reports. Those aren't the names I 6 remember. I got two reports, one -- 7 (Witness reviewing documents.) 8 You may be right, but I don't have any depositions. I have 9 the one from -- yeah, Gouge, Gouge and Dr. Carr-Locke, 10 Dr. Slezak, S-l-e-z-a-k. 11 Q. Any other materials? 12 A. No, that's all. 13 Q. These are materials we didn't discuss before? 14 A. That's right. Yes, sir. 15 Q. When did you get these reports? 16 A. Oh, gosh, I don't know -- I don't know whether they came 17 with the original set of documents or not. They came with -- 18 It's really October '97. It says "I am including for your 19 review the report of Dr. Frederick Slezak." I know that his 20 came with this letter. I don't know when the other two came. 21 Q. Did Father Walick have a right to know that the surgical 22 pathological report revealed no villous adenoma -- 23 A. Yes. 24 Q. -- at the hepatic flexure? 25 A. Yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 57 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Whose obligation was that to tell him about that; was that 2 Dr. Gottesman's, Dr. Eisenstat's or both? 3 MR. POLING: Objection. 4 MR. HOLLERN: Objection. 5 THE WITNESS: Well, I think they both would have sort 6 of shared in that because one did the colonoscopy and biopsies, 7 Dr. Gottesman would have told him about that; the surgery, 8 Dr. Eisenstat would have told him about that. 9 BY MR. HIRSHMAN: 10 Q. Well, as it relates to the specific issue of the histology 11 not supporting the existence of a precancerous lesion, 12 precancerous polyp, whose obligation was that? 13 MR. POLING: Objection. 14 MR. HOLLERN: Objection. 15 THE WITNESS: The histology from the biopsies or the 16 histology from the surgery? 17 BY MR. HIRSHMAN: 18 Q. From the surgery. 19 A. Dr. Eisenstat's. 20 MR. POLING: Same objection. 21 BY MR. HIRSHMAN: 22 Q. And if you had a surgeon working with you under these 23 circumstances, it certainly would be your expectation that that 24 surgeon would reveal that information to the patient regarding 25 the fact that this histology came back negative for a * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 58 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 precancerous lesion? 2 A. Yes, sir. 3 Q. Regardless of how embarrassing it might be? 4 MR. POLING: Objection. 5 THE WITNESS: Regardless, yes. 6 MR. HIRSHMAN: I have no further questions. Thanks 7 very much. 8 MR. POLING: No questions. 9 MR. HOLLERN: Doctor, do you want to read, or do you 10 want to waive? I recommend you go ahead and waive the signature 11 of this. 12 The witness: That's fine. 13 - - - 14 (Signature waived.) 15 - - - 16 (Thereupon, the deposition was concluded at 17 10:38 o'clock a.m. on Thursday, March 18, 1999.) 18 - - - 19 20 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER *