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 Transcript of the videotape deposition of Fred B. 12 Thomas, M.D., a witness herein, called by the Defendant for 13 Direct Examination under the statute, taken before me, Rose 14 Marie Prater, Registered Professional Reporter and Notary Public 15 in and for the State of Ohio, by agreement of counsel without 16 notice or other legal formality, at the offices of the deponent, 17 The Ohio State University Hospital, Doan Hall, Room N211, 18 410 West 10th Street, Columbus, Ohio, on Wednesday, April 7, 19 1999, beginning at 5:04 o'clock p.m. and concluding on the same 20 day. 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 Brant Poling, Esq. 8 Reminger & Reminger Courthouse Square 9 505 South High Street Columbus, Ohio 43215-5657 10 (614) 461-1311 11 ON BEHALF OF THE DEFENDANT, MERIDIA HILLCREST HOSPITAL: 12 James S. Casey, Esq. Reminger & Reminger 13 113 St. Clair Avenue, 7th Floor Cleveland, Ohio 44114 14 (216) 687-1311 15 ON BEHALF OF THE DEFENDANT, DAVID L. GOTTESMAN, M.D.: 16 Douglas G. Leak, Esq. Mazanec, Raskin & Ryder, Co., LPA 17 100 Franklin's Row 34305 Solon Road 18 Cleveland, Ohio 44139 (440) 248-7906 19 20 ALSO PRESENT: 21 Brian Nicola, Video Technician McGinnis & Associates, Inc. 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 videotape deposition of 5 Fred B. Thomas, M.D., a witness herein, called by the Defendants 6 for Direct Examination under the statute, may be taken at this 7 time and reduced to writing in stenotype by the Notary, whose 8 notes may thereafter be transcribed out of the presence of the 9 witness; that proof of the official character and qualification 10 of the Notary is waived; that the examination, reading and 11 signature of the said Fred B. Thomas, M.D. to the transcript of 12 his videotape deposition are expressly waived by counsel and the 13 witness; said transcript of his videotape deposition to have the 14 same force and effect as though signed by the said Fred B. 15 Thomas, M.D. 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 2 I N D E X 3 - - - 4 WITNESS PAGE 5 Fred B. Thomas, M.D. Direct Examination by Mr. Leak 6 6 Cross-Examination by Mr. Hirshman 29 Cross-Examination by Mr. Casey 70 7 Redirect Examination by Mr. Leak 91 Recross-Examination by Mr. Hirshman 95 8 Recross-Examination by Mr. Casey 101 9 - - - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 5 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 P R O C E E D I N G S 2 - - - 3 Wednesday, April 7, 1999 4 Evening Session 5 - - - 6 VIDEO TECHNICIAN: On the record. Doctor, please 7 raise your right hand. 8 (Witness placed under oath.) 9 VIDEO TECHNICIAN: Okay. 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 6 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 FRED B. THOMAS, M.D. 2 of lawful age, being first duly placed under oath, as prescribed 3 by law, was examined and testified as follows: 4 DIRECT EXAMINATION 5 BY MR. LEAK: 6 Q. Doctor, can you please state your full name for the 7 ladies and gentlemen of the jury? 8 A. First name Fred, middle initial B, last name Thomas. 9 Q. Obviously, you're a physician. Where do you presently 10 practice medicine? 11 A. At Ohio State University Hospital in Columbus, Ohio. 12 Q. Before we get into the nature of your practice, I'd 13 like to go through a little bit about your -- your background. 14 Can you please run us through your educational background? 15 A. Well, I went to undergraduate school at Ohio State, 16 also went to medical school here; graduated from medical school 17 in 1965. Did two years of -- well, one year of internship, two 18 years of residency, a year of chief medical residency, two years 19 of gastroenterology fellowship, ended that in 1971. And then 20 spent two years in the Air Force at Keesler Air Force Base in 21 Mississippi, and returned here on the faculty in 1973. 22 Q. You mentioned you did a fellowship in 23 gastroenterology. What exactly is a fellowship? 24 A. It's a postgraduate training period for people who 25 subspecialize in different areas of medicine or surgery. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 7 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And the fellowship was in gastroenterology. Can you 2 please explain for the ladies and gentlemen what 3 gastroenterology entails? 4 A. That's the study of gastrointestinal diseases, liver 5 diseases, pancreatic disease. 6 Q. Are you board certified? 7 A. Yes, sir. 8 Q. And in what areas of medicine? 9 A. In internal medicine and gastroenterology. 10 Q. In the field of gastroenterology, are you a member of 11 any associations or groups? 12 A. Yes, I'm a member of the American Gastroenterologic 13 Association, American Society for Gastrointestinal Endoscopy. 14 Those are the two principal ones, and the American College of 15 Physicians. 16 Q. Have you had the opportunity to write articles or have 17 you been published in the area of gastroenterology? 18 A. Yes, sir. 19 Q. Can you briefly explain to the jury the extent of 20 your -- your writings? 21 A. I published approximately 70 papers in what we call 22 peer review journals. That is, we submit an article of 23 interest; other physicians review them for merit, and if they 24 deem them meritorious, then they're published in the journals. 25 Q. Doctor, I have to get some legalities out of the way. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 8 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Are you licensed to practice medicine in the State of 2 Ohio? 3 A. Yes, I am. 4 Q. Do you devote more than 50 percent of your 5 professional time to the clinical practice of medicine? 6 A. Yes, I do. 7 Q. Why don't you go ahead and explain the nature of your 8 practice here at Ohio State? 9 A. Well, the nature of my practice here at Ohio State 10 involves a clinical practice, taking care of patients, seeing 11 inpatients, outpatients, consultations, teaching the medical 12 students, teaching medical residents and postgraduate 13 gastroenterology fellows. We sort of do all those things 14 together as part and parcel of the academic setting here at 15 University Hospital. 16 Q. All right. Can you tell the jury a little bit about 17 your clinical practice? 18 A. My clinical practice primarily involves a consultative 19 practice. I spend five months a year seeing inpatient consults, 20 assigned to what we call the gastroenterology consultative 21 service, and I go around the hospital seeing consultations from 22 other services. 23 I spend two months a year on what we call the ward 24 service, taking care of specific gastroenterology problems from 25 day-to-day. And then the other time during the year, I'm seeing * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 9 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 outpatients. 2 Q. Doctor, you were asked to get involved in this case 3 involving Father Walick -- 4 A. Yes, sir. 5 Q. -- and Dr. Gottesman and Dr. Eisenstat. What is your 6 understanding of what your role is in this case? 7 A. Well, I -- I was specifically asked to review the role 8 of Dr. Gottesman and his standard of care. 9 Q. From a gastroenterology standpoint? 10 A. Yes, sir. 11 Q. In part of your evaluation of this case, were you 12 provided some records in this case? 13 A. Yes, I was. 14 Q. I'm going to list some records. Can you please let 15 the ladies and gentlemen of the jury know whether you reviewed 16 these records: The office chart of Dr. Gottesman? 17 A. Yes, I did. 18 Q. Okay. The office chart of Dr. Eisenstat? 19 A. Yes, I did. 20 Q. The hospital chart for Hillcrest -- 21 A. Yes. 22 Q. -- Hospital? 23 A. Uh-huh. 24 Q. The deposition of Dr. Gottesman? 25 A. Yes. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 10 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. The deposition of Dr. Eisenstat? 2 A. Yes. 3 Q. And did you review some expert reports that have been 4 issued in this case? 5 A. Yes, I did. 6 Q. Doctor, as we're all aware, this case deals with a 7 surgery performed on November 7th, 1984, by Dr. Eisenstat, 8 following a colonoscopy performed by Dr. Gottesman on 9 November 6th, 1984. Let's start off with what exactly is a 10 colonoscopy? 11 A. A colonoscopy is a gastroenter- -- gastroenterologic 12 procedure whereby we look up inside the large intestine or 13 colon, those are synonymous terms, with, for lack of a better 14 word, a lighted tube that we can look inside the large intestine 15 and see if -- the tube is passed up into the large intestine, 16 which is roughly three and a half feet long or so, and we look 17 for various kinds of lesions in there. 18 Q. And what is your experience with colonoscopies? 19 A. You mean how many I've done or -- 20 Q. Well -- 21 A. Oh, I don't know. I can't tell you how many I've 22 done. It's probably three or four hundred a year, since 19 -- I 23 started doing colonoscopies about '75 or '6. 24 Q. With regard to colonoscopies, can you please explain 25 what a patient has to go through in terms of preparation for the * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 11 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 test? 2 A. Well, the patient is, one, not allowed to eat 3 anything -- eat or drink anything after midnight of the night 4 before the procedure. They're given a preparation of a large 5 amount of fluid to drink. It's a -- a laxative of sorts, and 6 those preparations vary, sometimes from a whole gallon that they 7 have to drink, to just a couple of bottles of -- That's, 8 actually, probably the worst part of the procedure, according to 9 the patients. 10 They have to drink this stuff. It doesn't taste well. 11 It causes them to have diarrhea. They stay up late at night 12 trying to get all this washed out of themselves. Then they come 13 into the endoscopic procedure to have the procedure the 14 following morning or afternoon, whenever scheduled. 15 Q. The colonoscopy itself, does it cause some discomfort 16 for the patient? 17 A. In some instances it does, yes. 18 Q. Can you describe what complaints you've gotten from 19 patients regarding discomfort of a colonoscopy? 20 A. Well, the -- the primary discomfort is due to the 21 introduction of air. We have to sort of puff air into the 22 colon; so we blow it up so we're able to see it, and that causes 23 a fair amount of cramping and abdominal discomfort to the 24 patients. 25 Q. What risks or complications are associated with a * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 12 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 colonoscopy? 2 A. Well, the biggest risk is perforation, depending on 3 whether or not you do a biopsy, is taking a piece of tissue to 4 submit to a pathologist, or whether or not we do a polypectomy, 5 which is -- we essentially lasso a polyp, which is a -- any 6 tumor in the colon, lasso it, take it out. The risk is bleeding 7 in some instances, you can introduce infection into the 8 bloodstream. 9 The other risk of colonoscopy is involved with the 10 sedation that we give. We give Demerol and a medicine that's 11 like Valium that can depress respirations, lower blood pressure. 12 So those are the major risks. The biggest risk is probably 13 perforation, the biggest serious risk. 14 Q. You had mentioned polyps. Can you explain for the 15 jury what you mean by "polyps"? 16 A. Well, a polyp is really a generic term for a -- an 17 elevated growth in the colon, and that degree of elevation may 18 vary from just a couple millimeters to several millimeters. 19 Q. As a gastroenterologist, what concerns may you have 20 with regard to a polyp in the colon? 21 A. Well, anytime you see a polyp, the biggest concern is, 22 number one, is it cancer; number two, has it bled? Those are 23 the biggest concerns. 24 Q. During a colonoscopy, and upon your gross examination 25 of a polyp, can you, as the physician, suspect that there's some * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 13 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 cancer or precancerous element to the polyp? 2 A. Yes. 3 Q. And can you please explain how that occurs? 4 A. Well, cancers are fairly characteristic, the more 5 advanced cancers are. These are the ones that narrow the -- the 6 lumen or the opening in the intestine. They tend to be real 7 nodular at the -- at the bottom or base of that polyp. They 8 tend to be very large. Those are the more advanced ones. 9 The -- The ones that are earlier on, let's say less 10 than two centimeters in size, it's sometimes difficult to 11 dec- -- to tell whether or not it's a cancer or not. That -- 12 that's really why we take them out. 13 Q. What characteristics of the growth of the polyp are 14 you looking for to raise a suspicion about precancerous element? 15 A. Well, if -- What -- What you're looking for when 16 you're looking at it grossly, that is without the benefit of 17 looking at it under a microscope, you're looking for one size. 18 The larger the polyp, the more likely it is to be a cancer. 19 If it's lobulated, that is, it sort of has multiple 20 heads on it, it's more likely to be a cancer, than is one that's 21 just smooth. If it's flat and doesn't have a stalk like a 22 mushroom, it's more likely to be a cancer. Those are the 23 principal things we look at. 24 Q. There's been a term used throughout the trial, sessile 25 polyp? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 14 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, sir. 2 Q. And what does that mean? 3 A. That's just simply a polyp without a stalk on it. It 4 looks like a -- just a broad-based elevation in the lining of 5 the large intestine, and it doesn't have a stalk on it like a -- 6 like a mushroom. 7 Q. When you're faced with a polyp, how do you approach it 8 in order to rule out whether it's cancerous or precancerous? 9 A. Well, if you -- If it's -- If it's on a stalk or if 10 it's sessile and not very large, you take it out. You put a 11 snare around it, the snare is pretty much like a lasso, tighten 12 that lasso around it and put electrical current through it and 13 just essentially take it off, send it off to the lab. 14 If it's a -- If it's a broad-based sessile polyp or if 15 it's a big polyp, we generally biopsy it and send it to the 16 pathology lab to determine whether or not it's a cancer or just 17 what it is. 18 Q. And that's all do -- done during the colonoscopy? 19 A. Yes, sir. 20 Q. Okay. 21 A. Well, a pathology report's not. I mean, we -- we send 22 it, and the pathology report comes back later. 23 Q. And are there circumstances where you cannot remove 24 the polyp, is that what you were just describing? 25 A. Yes, there are circumstances. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 15 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And you men- -- you were talking a little bit about 2 the biopsy, and I want to go into that a little bit more. 3 As a gastroenterologist, what is the purpose of the 4 biopsy, in your role? 5 A. Well, the purpose of it, number one, is to tell the 6 patient whether he or she has a cancer, whether this is a type 7 of polyp that already has cancer in it, whether it's likely to 8 develop into a cancer, or whether it's, in fact, a benign polyp 9 that's probably not going to ever develop into a cancer. That's 10 the primary purpose. 11 If we see a large polyp that we think has to come out 12 by surgery, then the biopsy sort of helps direct the surgeon as 13 to what kind of surgery may or may not be needed. 14 Q. Is a biopsy -- Does a biopsy provide you a 100 percent 15 guarantee that the polyp is either benign, cancerous or 16 precancerous? 17 A. It never does, no. 18 Q. And can you please explain why? 19 A. Well, simply -- Well, one, medicine is not an exact 20 science; nothing's a hundred percent. And in the case of a 21 polyp, it's -- it's virtually impossible to get enough sampling 22 of that polyp to know whether or not there is a cancerous 23 problem there or whether or not it's just a -- you happened to 24 have sampled a noncancerous area. 25 Q. Are there circumstances where a polyp may be both * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 16 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 benign and cancerous or precancerous? 2 A. Yes. 3 Q. Doctor, if a biopsy doesn't provide you a 100 percent 4 guarantee of a definitive diagnosis, what steps can be taken to 5 arrive at that definitive diagnosis of the polyp? 6 A. Well, you can attempt to remove it, if you think it's 7 safe, either endoscopically, through a colonoscope. You can go 8 back and take several more biopsies; although, again, you're 9 still left with the problem that you -- the sampling here, or 10 you can send the patient to a surgeon and have them remove it 11 surgically. 12 Q. I want to touch on -- you just mentioned go back and 13 resample? 14 A. Uh-huh. 15 Q. Does that mean the patient would have to undergo 16 another colonoscopy? 17 A. Yes. 18 Q. All the same steps in terms of preparation? 19 A. All the same steps, yes, sir. 20 Q. The same risks and complications are associated? 21 A. Same risks. 22 Q. At what point, if you keep on doing repeat biopsies, 23 will negative biopsies definitively rule out cancer or 24 precancerous elements to the polyp? 25 A. Well, the only circumstances under that -- which -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 17 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 which that occurs in is if you're able to take the polyp out in 2 toto by a polypectomy; in which case, the pathologist has the 3 whole polyp to look at. 4 If you're just going back to do biopsies, you're never 5 going to be a hundred percent assured that that's a benign or a 6 cancerous polyp. 7 Q. You also indicate the other option was surgery? 8 A. Yes. 9 Q. What surgery -- What kind of surgery are you talking 10 about? 11 A. Well, surgery varies. It could -- It could be just 12 what we call a segmental resection, where they take out the -- 13 just the area of colon -- of the colon where that polyp is, a 14 few inches one side or the other of that. 15 You could take out half the colon, if there's a real 16 high index of suspicion that this is a cancer, or if there are 17 multiple sites of large polyps or large polyps with cancer in 18 them, then you take out the whole colon. 19 Q. Doctor, as a gastroenterologist, what is your role 20 with regard to the decision to take a patient for surgery? 21 A. Well, my role is, number one, if I see a polyp that I 22 think I can't resect safely, I will send them to a surgeon for a 23 surgical opinion. 24 Q. Is your role merely recommendation? 25 A. Well, it's -- it's recommendation and -- in terms of * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 18 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 whether or not to have surgery, I'd -- I'd call it maybe a 2 little stronger than recommendation. I would say maybe pushing 3 the surgeon into doing -- doing some surgery, whatever that -- 4 whatever that would be. 5 Q. Who ultimately is responsible for the decision to go 6 to surgery? 7 A. The surgeon. 8 Q. And who is ultimately responsible for deciding when 9 the surgery will take place? 10 A. Well, that's the surgeon, with some exceptions. I 11 think if you have a really sick patient with multiple medical 12 illnesses, the surgeon clearly has to do that in concert with 13 what the primary care physician or gastroenterologist thinks is 14 safe to do. 15 Q. With regard to the extent of surgery or the type of 16 surgery, whose decision is that? 17 A. That's the surgeon's. 18 Q. Is a surgeon bound by what your recommendation is? 19 A. I certainly hope not. 20 Q. Okay. 21 A. I'm not bound by what his recommendation is, and I 22 wouldn't think he would be bound by mine. 23 Q. Okay. Doctor, can you please explain what informed -- 24 what informed consent is? 25 A. It's a mechanism whereby physicians, whether or not * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 19 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 they're surgeons, internists, gastroenterologists, tell the 2 patient what is involved in a procedure, what -- what the 3 procedure is, the alternatives for that procedure, what the 4 risks and benefits are. 5 It's -- It's essentially sitting down with the patient 6 and telling them what the risk/benefit ratio of any given 7 procedure is and what the alternatives are to not -- either not 8 doing that or are there other alternatives that are suitable. 9 Q. With regard to the surgery we've been talking about 10 for polyps, what is your role, as a gastroenterologist, in 11 obtaining informed consent? 12 A. Informed consent for -- 13 Q. For going forward with surgery for removal? 14 A. None. 15 Q. Whose responsibility is that? 16 A. That's the surgeon's. 17 Q. Doctor, are there circumstances in which you will 18 still recommend surgery even if the biopsy of the polyp revealed 19 that the polyp was benign? 20 A. Yes. 21 Q. Can you please explain to the jury how that occurs? 22 A. Well, a large -- one of -- a large polyp that cannot 23 be resected endoscopically through a colonoscope, even if it's a 24 benign polyp, once again, you're never sure that your sampling 25 air is correct; so a large polyp would be the -- the primary * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 20 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 indication for referring a patient to surgery under that 2 circumstance. 3 Q. Doctor, do you perform surgery? 4 A. No, absolutely not. 5 Q. Are you qualified to render opinions as to the 6 standard of care for a surgeon? 7 A. I don't believe I am, no. 8 Q. So then it's fair to conclude that your opinions in 9 this case are limited to the care and treatment rendered by 10 Dr. Gottesman as a gastroenterologist? 11 A. Yes, sir. 12 Q. Okay. I want to turn to the -- the facts of this 13 case, and if you need to, I know you have the medical records at 14 your disposal, please refer to it if you need to. 15 A. Okay. 16 Q. What is your understanding as to why Father Walick 17 ended up seeing Dr. Gottesman in October of 1994? 18 A. It's my understanding that he was referred there by 19 his primary care physician. He had presented to his primary 20 care physician with diarrhea, some rectal bleeding. 21 He was then seen by Dr. Gottesman, who evaluated him, 22 and I believe initially did a sigmoidoscopy, and subsequently 23 felt that Father Walick needed a full colonoscopy. And then he 24 did perform that on the 6th of -- 6th of November. 25 Q. What did Father Walick's signs and symptoms suggest, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 21 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 from a gastroenterology standpoint? 2 A. Well, I believe at the time, he was -- he was in his 3 forties, and at that age, it could be -- his signs and symptoms 4 could be tumor, polyp, cancer, inflammatory bowel disease, or 5 what we call sort of a generic term for two diseases called 6 ulcerative colitis or Crohn's disease, could have been due to 7 diverticulosis. Those are the principal concerns in somebody 8 in -- somebody in his age group, those are the three major 9 things that you would worry about. 10 Q. Were the diagnostic procedures performed by 11 Dr. Gottesman, the sigmoidoscopy and the col- -- colonoscopy, 12 were they within the standard of care? 13 A. Yes, they were. 14 Q. What is your understanding as to what Dr. Gottesman 15 found as a result of his colonoscopy? 16 A. Well, he found several polyps. I think all total he 17 found five, three of those were in the left side of his colon 18 that he snared out, took out. He saw two -- either snared or 19 biopsied, I can't remember which, but then he saw two in the 20 right part of his colon, the extreme right part of his colon. 21 One was a two-and-a-half centimeter, flat, sessile-looking 22 polyp, and he saw another smaller polyp just further downstream 23 from that, and he biopsied the big one. 24 Q. That's the 2.5 sessile polyp? 25 A. Yes. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 22 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And that was located in the hepatic flexure? 2 A. It was in the right colon. I don't know whether it's 3 the hepatic flexure, or not. I think it was, really, the 4 ascending colon, which is just a little bit proximal to that. 5 Q. The description provided by Dr. Gottesman with regard 6 to the 2.5 centimeter polyp, what is the significance of his 7 description? 8 A. Well, the significance of his description, if I 9 recall, he called it a large, multilobulated polyp, and I don't 10 specifically recall whether he used the term villous or not. I 11 think he may have used that term in his deposition. I'm not 12 quite sure that he used that term in his -- his initial report. 13 Q. And what does "villous" mean? 14 A. Well, villous really doesn't have a whole lot of 15 meaning when you're looking at it grossly, but it's -- a villous 16 polyp, a villous adenoma, is a -- is a microscopic diagnosis, 17 primarily. 18 When that diagnosis is made, the risk of cancer 19 developing in that polyp is much higher than it would be in a 20 non-villous polyp. Now, it is true that most villous polyps 21 grossly, when you're looking at them through a colonoscope, tend 22 to be bigger. They tend to have sort of a corrugated surface to 23 them. Sometimes they're multilobulated; that is, they have more 24 than one head on them, but that's not always true. 25 Q. Based upon your review of the records, was the 2.5 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 23 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 centimeter sessile polyp, was that the major concern of 2 Dr. Gottesman? 3 A. Yes, it was. 4 Q. And why is that? 5 A. Well, he felt it was -- was, one, too big to remove 6 endoscopically, safely to be removed; that the -- that the size 7 of and the shape of it, to him, suggested that there might be a 8 malignancy there. 9 Q. And that polyp was biopsied? 10 A. That polyp was biopsied. 11 Q. And what did Dr. Gottesman do following the 12 colonoscopy? 13 A. He consulted Dr. Eisenstat for his -- 14 Q. For -- 15 A. -- for his surgical opinion and whether or not he 16 thought this ought to come out. 17 MR. CASEY: Doctor, I don't mean to interrupt, but you 18 keep putting your hands up there. I'm not sure that the jury is 19 going to be blocked off of your face. 20 THE WITNESS: Are they? 21 MR. CASEY: I -- I don't know. 22 THE WITNESS: We'll ask this guy. 23 MR. CASEY: I'm just looking at it. 24 THE WITNESS: Okay. 25 MR. CASEY: I've noticed that a couple of times and -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 24 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 THE WITNESS: Okay. 2 MR. CASEY: I want these people to get the full 3 import -- 4 THE WITNESS: All right. 5 MR. CASEY: -- of your testimony. 6 THE WITNESS: All right. 7 BY MR. LEAK: 8 Q. Doctor, was it within the standard of care for 9 Dr. Gottesman to consult with Dr. Eisenstat following the 10 colonoscopy? 11 A. Yes, it was. 12 Q. And please explain why. 13 A. Well, he felt he couldn't take -- safely take this 14 out, and one of his alternatives, and the one that he considered 15 best, was to send the patient to surgery. 16 Q. And why couldn't he safely take this polyp out? 17 A. Well, a two-and-a-half centimeter polyp, it may not 18 sound very much, you know, that's an inch-size polyp. It may 19 not sound very big to most lay people, but when you look at it 20 inside the colon, that's, in fact, a decent-size polyp. 21 What made this a little bit more difficult to manage 22 was it didn't have a stalk on it, nothing you could easily lasso 23 and safely take out. When you try and take out flat or sessile 24 polyps of that size, the risk of perforating the colon, burning 25 a hole through it, is significantly higher than it is with any * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 25 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 other kind of polyp. And I -- I think, with due respect to him, 2 he thought that was the right thing to do. 3 Q. Were there other options available to him following 4 the colonoscopy, instead of taking it out? 5 A. Oh, yeah, there -- there probably were a couple other 6 options. One, he could have just chosen to follow this thing 7 along, done more biopsies at some point in time down the road; 8 still, with the -- with the same problem about knowing whether 9 or not you had an adequate sample. 10 Could have done either nothing, taken multiple 11 biopsies, and sending him to surgery at a later time. I don't 12 know of any other options that I -- I would have even considered 13 then. 14 Q. Doctor, I want you to assume that Dr. Gottesman 15 discussed with Father Walick, following the colonoscopy, that 16 there were two options; one was surgery, and the other option 17 was to repeat biopsies of the polyp. Was it within the standard 18 of care for Dr. Gottesman to offer these options? 19 A. Yes. 20 Q. Was it within the standard of care for Dr. Gottesman 21 to suggest surgical approach to this? 22 A. Yes, it was. 23 Q. And what was the surgical approach that Dr. Gottesman 24 had recommended? 25 A. I believe he recommended a right hemicolectomy, which * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 26 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 is essentially taking out the right half of the colon. 2 Q. For what purpose, based on your experience as a 3 gastroenterologist, would a hemicolectomy be indicated for this 4 particular polyp? 5 A. (Cough.) Excuse me. Well, if -- if it was thought 6 pretty strongly that this was a malignant or cancerous polyp, 7 then that hemicolectomy would have been the -- the appropriate 8 surgical approach to that. 9 Sometimes hemicolectomies are done by surgeons very 10 simply because it's the easiest thing to do. It's not that much 11 more difficult, as I understand it, to do a hemicolectomy than 12 it is to do a segmental resection of that. I think that was 13 probably the basis for his recommendation. 14 Q. Doctor, the fact that Dr. Gottesman recommended a 15 hemicolectomy, does that mean that surgery was a done deal and 16 that it was going to go forward? 17 A. No. 18 Q. Can you please explain why? 19 A. Well, that's -- that's simply not the way that the 20 field of medicine operates. We send people to -- to 21 consultants, a surgeon, an internist, whatever, with what we 22 think is the reason we're sending them for to this other doctor 23 for, but it's up to that consultant to make that ultimate 24 decision about, one, is surgery necessary, and two, if -- and if 25 it is, what kind of surgery should be done. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 27 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Doctor, we know that the biopsy of this polyp we're 2 talking about, the 2.5 centimeter sessile polyp, ultimately 3 showed that it had inflammatory changes? 4 A. Yes, sir. 5 Q. What does that mean? 6 A. Well, it's -- means it's a benign polyp. Inflammatory 7 polyp is a type of benign polyp with just a lot of inflammation, 8 a lot of pus cells or chronic -- chronic inflammatory cells in 9 it and some scar tissue. 10 Q. Given those biopsy results, was it still within the 11 standard of care for Dr. Gottesman to recommend a hemicolectomy? 12 A. Yes, I believe it was. 13 Q. Finally, Doctor, upon your review of the records, 14 based upon your experience, training, and education in 15 gastroenterology, do you have an opinion to a reasonable degree 16 of medical probability as to whether Dr. Gottesman met the 17 acceptable standards of care? 18 A. Yes, and I believe he did. 19 Q. Okay. And once again, can you please explain why you 20 believe Dr. Gottesman met the acceptable standards of care? 21 A. Well, he -- he colonoscoped the patient with 22 good indication -- 23 (Interruption.) 24 MR. HIRSHMAN: Do you need to take a break? 25 MR. LEAK: Do you want to take a break? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 28 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 THE WITNESS: Yeah, we can take a break. 2 VIDEO TECHNICIAN: Going off the record. 3 (Discussion held off the record.) 4 (Record read back as requested.) 5 VIDEO TECHNICIAN: Back on the record. 6 THE WITNESS: He colonoscoped the patient with good 7 indication, the indication was that the patient had diarrhea and 8 bleeding, which is certainly a good indication for doing the 9 colonoscopy. He did it appropriately. He did all the 10 appropriate biopsies and polypectomies. During the procedure, 11 he saw a polyp that he felt he could not remove and 12 appropriately referred that patient to a surgeon. 13 BY MR. LEAK: 14 Q. And you still hold that opinion even in light of the 15 pathology report that was subsequently issued? 16 A. Yes, sir. 17 MR. LEAK: Thank you, Doctor. 18 THE WITNESS: Okay. 19 MR. LEAK: I have no further questions. 20 - - - 21 CROSS-EXAMINATION 22 BY MR. HIRSHMAN: 23 Q. Good afternoon. 24 A. Good afternoon. 25 Q. I'm Tobie Hirshman. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 29 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, sir. 2 Q. You know that. 3 A. Yes, sir. 4 Q. We met about a month ago -- 5 A. Yes, sir -- 6 Q. -- in the deposition? 7 A. -- we did. 8 Q. I'm telling you that so that the jury gets an idea of 9 who's asking you questions right now. 10 A. Okay. 11 Q. So for the jury's sake, I'll tell you that I represent 12 Father Steven Walick. 13 A. Uh-huh. 14 Q. And I will be asking you some questions on 15 cross-examination. 16 A. Okay. 17 Q. From what I gather from listening to your testimony, 18 you are here to testify on behalf of Dr. Gottesman? 19 A. Yes, sir. 20 Q. You are not here to testify on behalf of 21 Dr. Eisenstat, correct? 22 A. No; no, I'm not. 23 Q. All right. During the direct examination, which was 24 conducted by Mr. Leak, there was an exchange between you and him 25 regarding the risks of colonoscopy? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 30 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, sir. 2 Q. You recall that? 3 A. Yes, I do. 4 Q. Are you suggesting to us here today that colonoscopy 5 is a high-risk procedure? 6 A. No, not at all. 7 Q. Okay. 8 A. Not at all. 9 Q. Indeed, it's not a high-risk procedure? 10 A. No, it's not, no. 11 Q. All right. 12 A. I hesitated because I -- I suppose if you're the one 13 person that has the complication, it's a high risk, but overall, 14 no, it's not. 15 Q. All right. Give us an indication as to what the 16 likelihood of a -- 17 A. Well, the likelihood of perforation is one in 400; 18 that's kind of a national figure. So one out of every 400 19 patients that gets colonoscoped has a statistical chance of 20 having a perforation. 21 Q. Which in most cases is readily repaired? 22 A. Readily repaired, yes, it is. 23 Q. All right. Now, we -- I heard some conversation 24 regarding inflammation? 25 A. Yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 31 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And it was a conversation which was directed towards 2 the polyp which was located, if not at, certainly near the 3 hepatic flexure? 4 A. That's right. 5 Q. Okay. 6 A. Yes, sir. 7 Q. And you would agree with me that on histology, that 8 was shown to be an inflammatory lesion? 9 A. Yes, it was. 10 Q. The lesion or the polyp, which induced the surgery, 11 was the two-and-a-half centimeter polyp at the hepatic flexure? 12 A. Right. 13 Q. And it turned out to be inflammatory? 14 A. Yes, sir. The reason we're here today is that polyp. 15 Q. Okay. Now, you mentioned, upon questioning, that an 16 inflammatory polyp is a benign polyp? 17 A. Yes, it is. 18 Q. It's not only benign, it's not precancerous either? 19 A. That's right, it's not. 20 Q. Okay. 21 A. It's not. 22 Q. And so that we understand the difference between the 23 two, when one says "benign," what one is talking about is 24 something that is not cancerous? 25 A. That's right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 32 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Now, in addition to an inflammatory polyp being not 2 cancerous, it has no possibility of becoming cancerous, correct? 3 A. If it's through and through an inflammatory polyp, 4 that is, if all sections, the pathologist assures you that 5 there -- with multiple sections, that there's no adenomatous or 6 precancerous change, that's exactly right, it won't develop into 7 a cancer. 8 Q. And the histology path report from the surgery 9 indicates that, indeed, this was an inflammatory polyp? 10 A. From the surgical report, yes. 11 Q. Okay. And, therefore, incapable of becoming cancer? 12 A. Incapable, yes, sir. 13 Q. Now, in addition to that polyp at the hepatic flexure, 14 I think you indicated that altogether, including that polyp, 15 there were five polyps? 16 A. I believe that's right; yes, sir. 17 Q. All right. My reading of the materials in this case 18 suggests that, altogether, there were six polyps, not five? 19 A. I'll take your word for it. I believe that's right. 20 It's five or six. 21 Q. All right. 22 A. I don't know which. 23 Q. And we know that two of them, the two that were most 24 distal in the gastrointestinal tract, meaning closest to the 25 rectum -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 33 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Uh-huh. 2 Q. -- were, in fact, non-adenomatous polyps, were they 3 not? 4 A. I -- I believe that's right. I'll take your word for 5 that, Mr. Hirshman. I -- There were a couple that were 6 adenomatous polyps, and I, frankly, don't recall which two those 7 were -- which one or two those were. 8 Q. All right. But -- So you'll take my word that two of 9 them were -- 10 A. I sure will. 11 Q. -- non-adenomatous polyps? 12 A. Sure. 13 Q. Which means they were not capable of becoming cancer? 14 A. Well, let's back up a step. Those were -- Those were 15 not read as inflammatory polyps. 16 Q. Well -- 17 A. Inflammatory polyps never become cancer. There's some 18 question as to whether or not hyperplastic polyps may not harbor 19 adenomatous fossae or parts of them may be adenomatous, in which 20 case they may be premalignant. 21 Q. You're not suggesting that those two non-adenomatous 22 polyps were the reason for the surgery in this case? 23 A. No, no, no. Your -- Your question to me was that -- 24 as I recall, was that they were non-adenomatous polyps and would 25 never develop into a cancer. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 34 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Well, that's only true if they were inflammatory 2 polyps. If they were hyperplastic polyps, then there's a 3 possibility that there was some adenomatous fossae in those. 4 Not likely, but a possibility. 5 Q. All right. The path report -- 6 A. Did not mention that. 7 Q. -- did not mention any -- 8 A. No, sir, it did not. 9 Q. -- adenomatous material -- 10 A. No, it did not. 11 Q. -- in those polyps? 12 A. It did not. 13 Q. So we can agree, then, that by virtue of that path 14 report, there was no potential for those two polyps becoming -- 15 A. Yes, sir. 16 Q. -- cancer? All right. 17 In addition, there were two polyps that, after the 18 path report came back from the colonoscopy procedure, showed 19 them to be adenomatous polyps -- 20 A. That's right. 21 Q. -- is that correct? 22 A. Yes, sir. 23 Q. All right. Now, those were completely removed, were 24 they not? 25 A. They were completely removed through the colonoscope, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 35 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 yes. 2 Q. And by virtue of their complete removal, they 3 constituted effective therapy? 4 A. For a cure. 5 Q. That was effective therapy for those polyps? 6 A. Yeah, those were cured. 7 Q. Those were cured by virtue of having been removed? 8 A. That's right. 9 Q. If they're not there, they can't cause cancer? 10 A. Exactly. 11 Q. All right. Now, it's also true that not all 12 adenomatous polyps, even if not removed, proceed to become 13 cancerous polyps? 14 A. That's true. 15 Q. Okay. Tell us, if you would, what the overall 16 percentage is of adenomatous polyps, in the absence of removal, 17 becoming cancer? 18 A. Oh, I -- I don't have a clue. I'm not sure that 19 data -- that anybody knows that data. 20 Q. All right. Certainly, it's a percentage -- 21 A. It's a percentage. It's not -- It's probably not even 22 50 percent. I can't tell you what figure less than 50 percent 23 that is, and it takes a long time for that to occur. 24 Q. All right. In this case, they were removed, at any 25 rate? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 36 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Pardon me? 2 Q. They were removed in this case -- 3 A. Yes. 4 Q. -- at any rate? 5 A. Yes, they were. 6 Q. And it's also true that when one clears the colon of 7 polyps and performs regularly conducted surveillance through 8 future colonoscopies thereafter, one, in fact, reduces the risk 9 of cancer in those patients down to the general level of the 10 population at large, does -- 11 A. Yes, sir. 12 Q. -- one not? 13 A. Yes, sir, it does. 14 Q. Okay. Now, we've talked about the two polyps in the 15 rectum -- 16 A. Uh-huh. 17 Q. -- that were non-adenomatous? 18 A. Okay. 19 Q. We've talked about the two polyps that were 20 adenomatous but completely removed? 21 A. Uh-huh. 22 Q. Then, in addition to the one at the hepatic flexure, 23 there was one other polyp, which was found at the cecum, I 24 believe; is that correct? 25 A. Yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 37 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Now, that was not removed by Dr. Gottesman, as I 2 understand it. Is that your understanding? 3 A. That's my understanding, yes. 4 Q. And in point of fact, from reviewing the deposition of 5 Dr. Gottesman, as well as Dr. Gottesman's operative note, you 6 understand that he could have removed that, had he wished to? 7 A. Yes. 8 Q. And the reason he didn't remove it was because after 9 finding the polyp at the hepatic flexure, he had already 10 determined that he was going to refer this patient to a surgeon? 11 A. That's right. 12 Q. All right. I think you indicated that Dr. Gottesman 13 anticipated a procedure being done which you described as a 14 hemicolectomy? 15 A. Yes, sir. 16 Q. Which means something less than the entire colon? 17 A. General -- Generally speaking, it's roughly half the 18 colon, probably a little less than half the colon, but that's 19 the term used. 20 Q. All right. "Hemi" meaning half? 21 A. Half, yes, sir. 22 Q. Now, you know that because that's what Dr. Gottesman 23 wrote in his operative note, that he was referring Father Walick 24 for evaluation by a surgeon? 25 A. Yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 38 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Why is it that Dr. Gottesman was contemplating a 2 hemicolectomy rather than a subtotal colectomy? 3 A. Well, I think he thought that that was either a 4 villous polyp, a villous adenoma, or it was a cancerous polyp, 5 in which case, even if it was a cancer, a subtotal colectomy 6 is -- you don't need to do a subtotal colectomy for -- for that 7 particular lesion. 8 Q. The lesion that was his concern was in the right 9 colon? 10 A. The right colon. 11 Q. And if we look at a picture of the colon -- why don't 12 you hold that up for the jury, and just tell them which part of 13 the colon is the right colon? 14 A. Well, it starts from the hepatic flexure, down. This 15 is the turn that it takes up by the liver (indicating). 16 Q. That's the hepatic flexure? 17 A. Yes, sir. 18 Q. That turn? 19 A. And then this is the right colon down in here 20 (indicating). 21 Q. So the right colon is what appears on the page as the 22 left side of the page -- 23 A. Yeah. 24 Q. -- is that right? 25 A. Yes; yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 39 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Okay. 2 A. It's on the left side of the page. 3 Q. All right. And because that lesion -- and excuse me 4 for reaching, but I want to -- 5 A. That's okay. 6 Q. -- put my pen into this -- into the picture here. The 7 lesion was here (indicating)? 8 A. Yes, sir. 9 Q. Or the polyp? 10 A. Right. 11 Q. And, therefore, only this side of the colon was 12 involved (indicating)? 13 A. That's right. 14 Q. Not this side (indicating)? 15 A. That's exactly right. 16 Q. All right. And certainly, the removal of the -- or 17 the surgery on the left -- on the right side of the colon was 18 all that was necessary from a medical perspective? 19 MR. CASEY: Objection. 20 MR. POLING: Objection. 21 THE WITNESS: From a gastroenterologic perspective, 22 yes, sir, but once again, I'm not a surgeon. I don't make those 23 decisions. 24 BY MR. HIRSHMAN: 25 Q. I understand. But you, as a gastroenterologist, I * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 40 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 assume, work closely with surgeons -- 2 A. Yes, I do. 3 Q. -- on these issues? 4 A. Yes, I do. 5 Q. And you have input into these issues as to what is 6 going to be done, I would assume? 7 A. My input is mostly speculative. I think all 8 gastroenterologists, when they -- when they encounter a patient 9 such as this, we speculate and say, well, this patient probably 10 is going to need a right hemicolectomy; he's probably going to 11 need an ileocolectomy, whatever else. The ultimate thing that's 12 done is really the surgeon's decision -- 13 Q. All right. 14 A. -- that and his alone. 15 Q. All right. And if I remember discussing this issue 16 with you previously -- 17 A. Uh-huh. 18 Q. -- you agreed with me that if more than a 19 hemicolectomy was needed in this case, it would have been based 20 on findings by a surgeon intraoperatively? 21 A. That's exactly right. 22 MR. CASEY: Objection. 23 MR. POLING: Objection. 24 BY MR. HIRSHMAN: 25 Q. All right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 41 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, sir. 2 Q. And we know you've had an opportunity to look at 3 Dr. Eisenstat's operative note, I believe? 4 A. Yes, sir, I have. 5 Q. Do you see anything in that note that reflects a 6 cogent reason for doing more than a hemicolectomy? 7 MR. CASEY: Objection. 8 MR. POLING: Objection. 9 THE WITNESS: It doesn't say one way or the other. I 10 think -- I mean, I look at that, and it -- it doesn't tell me, 11 no. 12 BY MR. HIRSHMAN: 13 Q. It tells you nothing? 14 A. Not me, no, sir. 15 Q. It's devoid of any mention of a reason for going to 16 the left side of the colon? 17 MR. POLING: Objection. 18 MR. CASEY: Objection. 19 BY MR. HIRSHMAN: 20 Q. Correct? 21 A. According to his report, that's right. 22 Q. And, in fact, as you read that report, the first thing 23 he does intraoperatively, is direct his attention to the left 24 side of the colon? 25 MR. POLING: Objection. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 42 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 THE WITNESS: I'd have to reread that to be certain of 2 that, but, you know, I -- 3 BY MR. HIRSHMAN: 4 Q. I brought it with me. If you have it here -- 5 A. I believe you're right, but I'm not -- I'm not 6 absolutely certain. 7 Q. Why don't you take a moment to find it, and if you 8 have difficulty finding it, I've got a copy of it here that I 9 will make available for you. 10 MR. CASEY: For the record, I'm going to put an 11 objection on the record that I move to strike all of this 12 testimony. He's already testified he's not qualified to talk 13 about the surgery or the qualifications of the surgeon or his 14 opinions regarding this surgery; so, therefore, his testimony is 15 incompetent as it relates to this area. 16 MR. POLING: I concur in that objection. 17 BY MR. HIRSHMAN: 18 Q. Do you want me to find you a copy? 19 A. Yeah. 20 Q. I'd be glad to do that, Doctor. 21 A. I can maybe -- Let me look one more place here. 22 Q. I've got it. Well, I think I know exactly where to 23 find it. 24 A. Yeah, I found it. I found it. 25 Q. All right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 43 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. I found it. Can I take just a second to read this? 2 Q. Sure, absolutely. 3 (Witness reviewing documents.) 4 And what you're looking at is the operative report of 5 Dr. Eisenstat from the subtotal colectomy -- 6 A. Yes, sir. 7 Q. -- that he performed -- 8 A. Right. 9 Q. -- on November 7th, 1984? 10 A. Yes, sir. And your question was what, again? 11 Q. Upon entering the abdomen, he immediately directed his 12 attention to the left side of the colon -- 13 MR. POLING: Objection. 14 MR. CASEY: Objection. 15 BY MR. HIRSHMAN: 16 Q. -- and began to take it down -- 17 A. Yes, sir. 18 Q. -- did he not? 19 MR. POLING: Objection. 20 THE WITNESS: That's what it says, yes. 21 BY MR. HIRSHMAN: 22 Q. And by "take it down," we mean taking steps to remove 23 it -- 24 MR. POLING: Objection. 25 BY MR. HIRSHMAN: * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 44 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. -- correct? 2 A. Yes. 3 Q. Now, when -- when one does a colonoscopy on a patient, 4 one is involved in a process whereby one inserts a scope into 5 the rectum, and then ad- -- you advance it up the 6 gastrointestinal tract? 7 A. Yes, sir. 8 Q. Okay. And what you are doing is you're looking at the 9 inside of the -- when it's a colonoscopy, the inside of the 10 colon? 11 A. That's right. 12 Q. And you're doing that through a device that basically 13 allows you to see the inside of the colon as if you were looking 14 with your naked eye? 15 A. That's right. 16 Q. All right. It's not allowing you to make any sort of 17 a microscopic diagnosis? 18 A. No, it's not. 19 Q. And the various items and structures that you find in 20 the colon aren't labeled, I take it, like they might be in a 21 medical book? 22 A. No. 23 Q. And villous adenomas, as you've indicated, are an 24 entity that are precancerous, correct? 25 A. Indeed, they are. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 45 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. All right. But they aren't labeled as such? 2 A. I'm not -- I'm not -- Well, they're labeled in 3 textbooks as such, yes. You mean by -- 4 Q. When you're looking through the colonoscope -- 5 A. Oh, no, no, no, no. 6 Q. -- they have no particular label on them? 7 A. Oh, no. It would be easier if they did. 8 Q. And inflammatory polyps aren't so labeled either? 9 A. No, they're not. 10 Q. And, in fact, villous adenomas and inflammatory polyps 11 can be, and often are, indistinguishable from one another when 12 looked at through a colonoscope? 13 A. Yes, sir. 14 Q. So it's frequently impossible to tell, when looking 15 through a colonoscope at a polyp, whether it's precancerous or 16 has no potential to advance to cancer? 17 A. That's right. 18 Q. And in order to make that conclusion or to gain 19 insight into that particular question, one needs the assistance 20 of a pathologist? 21 A. That's right. 22 Q. And as we've already indicated that that large polyp 23 at the hepatic flexure, based on the histolical -- histological 24 examination of the pathologist, turned out to be not 25 precancerous at all? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 46 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. That's right. 2 Q. All right. Now, the surgery in this case, which was 3 performed by Dr. Eisenstat, was done on what day? 4 A. November the 7th, 1984. 5 Q. And the colonoscopy, which was performed by 6 Dr. Gottesman, was done on what day? 7 A. November 6th, the night before. 8 Q. So the very next day Father Walick was taken to 9 surgery? 10 A. Yes, sir. 11 Q. Was this an emergency? 12 A. No. 13 Q. Was there any compelling reason why this procedure 14 needed to be done the very next day? 15 MR. POLING: Objection. 16 THE WITNESS: No compelling reason. 17 BY MR. HIRSHMAN: 18 Q. Would anything have been lost had they waited another 19 day or two for pathology results to come back? 20 A. No. 21 Q. Am I correct in understanding your direct testimony to 22 be that the general surgeon, Dr. Eisenstat, is the one who is 23 responsible for providing Father Walick with an informed 24 consent? 25 A. Informed consent for surgery, yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 47 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. In other words, it was up to Dr. Eisenstat to inform 2 Father Walick of the need for surgery, the risks of surgery, the 3 alternatives to surgery, and the nature of the surgery that he 4 wanted to perform? 5 A. Yes. 6 Q. And is that -- Strike that. 7 You've not mentioned the deposition of Father Walick 8 as part of the materials that you reviewed? 9 A. I don't recall ever seeing it, no, sir. 10 Q. All right. So even to this day -- I know -- 11 A. To this day. 12 Q. -- at the time of your deposition -- 13 A. No, to this day I've not seen that. 14 Q. Okay. You understand that the only discussion in this 15 case that has -- the only evidence in this case that has been 16 brought forth regarding what Father Walick was told about the 17 procedure, told about the risks, told about the benefits, and 18 told about the alternatives, is contained in Father Walick's 19 deposition? 20 A. I didn't know that, but I'll take your word for it. 21 Q. All right. But you've never read it? 22 A. No, sir. 23 Q. Okay. I want you to assume, then -- I want you to 24 make some assumptions. I want you to assume that an explanation 25 of options was given to Father Walick in the endoscopy suit * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 48 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 immediately after the colonoscopy of November 6th, 1984, had 2 been completed. 3 A. Uh-huh. 4 Q. All right? Would that be appropriate? I'm going to 5 ask you to assume something else -- 6 A. Well -- well -- 7 Q. -- first. 8 MR. POLING: Objection. 9 BY MR. HIRSHMAN: 10 Q. I'm going to ask you to further assume that no other 11 explanation occurred. 12 A. No other informed consent, is that what you're asking 13 me? 14 Q. That's what I'm telling you; that the only explanation 15 as to what was going to happen was given in the endoscopy suit 16 immediately after the colonoscopy was completed. 17 MR. POLING: Objection. 18 BY MR. HIRSHMAN: 19 Q. Do you have an opinion as to wether that was 20 appropriate? 21 A. No, I don't think that -- 22 MR. POLING: Objection. 23 THE WITNESS: -- that in and of itself is altogether 24 appropriate, no. 25 MR. HIRSHMAN: All right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 49 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 MR. POLING: Move to strike. 2 BY MR. HIRSHMAN: 3 Q. And why isn't it appropriate? 4 MR. POLING: Same objection. 5 THE WITNESS: Because the patient is recovering from a 6 sedation and may not remember what you told them. 7 MR. POLING: Move to strike. 8 BY MR. HIRSHMAN: 9 Q. It's also true that when a patient is sedated, that 10 patient often loses his sense of judgment and sense as to the 11 significance of the events that are going on around him? 12 MR. POLING: Objection. 13 THE WITNESS: That's right. 14 BY MR. HIRSHMAN: 15 Q. Is that correct? 16 A. Yes, sir, that's right. 17 MR. POLING: Move to strike. 18 BY MR. HIRSHMAN: 19 Q. And I take it you are involved, from time to time, in 20 the discussions that take place between a patient and general 21 surgeon about the risks and the recommendations of surgery? 22 A. From time to time, yes. 23 Q. All right. That's not a foreign area to you; that's 24 something you -- 25 A. No, it's not a foreign area. It's -- honestly, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 50 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 probably 15, 20 percent of the time maybe that that occurs when 2 I refer a patient for surgery. 3 Q. All right. Now, what were the biopsy results -- 4 Let me -- Let me back up a second, put this in some perspective. 5 When Dr. Gottesman did his colonoscopy on 6 November 6th, he took out the four polyps we've already talked 7 about -- 8 A. Uh-huh. 9 Q. -- and took biopsies of the large polyp of concern at 10 the hepatic flexure? 11 A. Yes, sir. 12 Q. That means he took pieces of it in order to have them 13 reviewed by the pathologist, correct? 14 A. That's right. 15 Q. Okay. And, ultimately, those biopsy results were 16 interpreted by a pathologist, were they not? 17 A. Yes, sir. 18 Q. And what were the biopsy results of the lesion or 19 polyp at the hepatic flexure? 20 A. That the large polyp in question was read as a 21 inflammatory polyp. 22 Q. Okay. It was read as a non-precancerous polyp? 23 A. That's right. 24 Q. All right. Did Father Walick have a right to know 25 that information and its implications before being taken to * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 51 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 surgery? 2 MR. POLING: Objection. 3 THE WITNESS: I believe so, yes. 4 MR. POLING: Move to strike. 5 VIDEO TECHNICIAN: Doctor, real quick, could you turn 6 your microphone over. 7 MR. HIRSHMAN: Let's go off record a second, or off 8 camera for a second. 9 VIDEO TECHNICIAN: Off the record. 10 (Discussion held off the record.) 11 MR. HIRSHMAN: Okay. Back on the record. 12 VIDEO TECHNICIAN: Back on the record. 13 BY MR. HIRSHMAN: 14 Q. Now, in discussing this polyp at the hepatic flexure, 15 if that polyp was known to be a villous adenoma -- 16 A. Uh-huh. 17 Q. -- the only appropriate care for such a polyp would 18 have been surgical removal, if it could not be removed 19 colonoscopically, correct? 20 A. Correct. 21 Q. All right. On the other hand, if the pathology 22 results from that polyp at the hepatic flexure had come back 23 showing inflammatory tissue, it would have been appropriate to 24 offer Father Walick the option of surveillance, wouldn't it have 25 been? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 52 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. That's one of the options, yes, sir. 2 Q. Okay. In point of fact, the conversation that 3 occurred regarding informed consent, if it occurred at 12:15, 4 just after noon, 12:15 in the afternoon -- 5 A. Uh-huh. 6 Q. -- on November 6th, 1984, in the endoscopy suit, if 7 that's the time and place that it occurred, that conversation 8 took place without any pathology results; isn't that a fair 9 statement? 10 A. Yes, sir. 11 MR. POLING: Objection. 12 BY MR. HIRSHMAN: 13 Q. And that's because pathology results couldn't even 14 possibly be back that quickly? 15 A. No, they couldn't. 16 MR. POLING: Objection. 17 BY MR. HIRSHMAN: 18 Q. Okay. And the only information, given those 19 circumstances, which would have been available would have been 20 based on what was visualized colonoscopically? 21 MR. POLING: Objection. 22 THE WITNESS: That's right. 23 BY MR. HIRSHMAN: 24 Q. And as we've already mentioned, colonoscopically, one 25 cannot always tell the difference between an adenomatous polyp * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 53 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 or a villous adenoma, on the one hand, and an inflammatory polyp 2 on the other hand? 3 A. That's correct. 4 Q. So at the time of the discussion at 12:15 in the 5 endoscopy suit, none of the polyps could be identified as to 6 whether they were pre-malignant or not? 7 A. That's right. 8 Q. What is your understanding as to what Father Walick 9 was told about the character of the polyp at the hepatic flexure 10 in terms of whether it was pre-malignant or not? 11 MR. POLING: Objection. 12 THE WITNESS: I don't think I -- 13 MR. CASEY: Objection. I -- 14 THE WITNESS: -- have any understanding of that. I 15 don't know that I've ever really read what he was -- he was 16 told. 17 BY MR. HIRSHMAN: 18 Q. All right. And you have not read Father Walick's -- 19 A. No, sir. 20 Q. -- deposition? 21 A. I haven't. 22 Q. Now, in addition to that conversation taking place 23 without the benefit of pathology results, in fact, 24 Dr. Eisenstat's subtotal colectomy occurred without the benefit 25 of pathology results, did it not? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 54 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, sir. 2 MR. POLING: Objection. 3 BY MR. HIRSHMAN: 4 Q. Could you repeat? 5 A. Yes, sir. 6 MR. POLING: Same objection. 7 BY MR. HIRSHMAN: 8 Q. How do you know that? 9 A. Well, I know that from Dr. Eisenstat's letter. 10 Q. What letter is that, sir? 11 A. A letter that he sent to Dr. Gottesman sometime after 12 the surgery expressing his surprise that it was an inflammatory 13 polyp. 14 MR. POLING: Move to strike. 15 BY MR. HIRSHMAN: 16 Q. And, of course, he would not have been surprised had 17 he read the pathology report from the colonoscopy specimens, 18 would he? 19 A. No, sir. 20 Q. And in addition, his operative note mentions what he 21 thought that hepatic flexure polyp was, does it not? 22 A. I believe that's right, yes, sir. 23 Q. And what does it say? 24 A. I think it indicated that they were -- it was either a 25 villous polyp or something worse, something of that nature. I * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 55 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 believe it indicates a villous adenoma, does he not? I can 2 check that. 3 Q. Take a look at it, would you, please? 4 A. Sure. 5 Q. If you need my help -- 6 A. No, I -- I know where it is exactly. 7 (Witness reviewing documents.) 8 Yeah, the preoperative diagnosis, that's what he 9 thought it was, was a colonic villous adenoma and multiple colon 10 polyps. 11 Q. All right. So based on that, he didn't have the 12 results of the pathology, did he? 13 A. No, sir. 14 Q. Now, let's go from the period of time before the 15 surgery of Dr. Eisenstat, where he did a subtotal colectomy, to 16 the period of time afterwards. 17 A. Uh-huh. 18 Q. Let's shift gears. After the -- After Father Walick's 19 colon was removed, that surgical pathological specimen was 20 examined by a pathologist as well, was it not? 21 A. Yes, it was. 22 Q. And it was found to have no precancerous lesions -- 23 A. That's right. 24 Q. -- correct? 25 A. That's right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 56 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And Dr. Laffay was the pathologist who performed that 2 particular evaluation -- 3 A. Yes, sir. 4 Q. -- wasn't it? And he specifically noted that there 5 was no villous adenoma -- 6 A. That's right. 7 Q. -- didn't he? 8 A. Uh-huh. He did. 9 Q. Yet, villous adenoma is what Dr. Eisenstat noted in 10 his operative note as the -- 11 A. Yes, sir. 12 Q. -- preoperative diagnosis? 13 A. That's right. 14 Q. Did Father Walick have a right to know that the 15 surgical pathology report revealed that there was, indeed, no 16 villous adenoma? 17 A. Yes, sir. 18 Q. And whose obligation, sir, was it to tell Father 19 Walick? 20 A. Surgeon's. 21 Q. That would have been who? 22 A. Dr. Eisenstat. 23 Q. Okay. And that information needed to be provided to 24 Father Walick regardless of how embarrassing it might be to the 25 general surgeon -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 57 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 MR. POLING: Objection. 2 BY MR. HIRSHMAN: 3 Q. -- is that a fair statement? 4 A. Sure. The patient has a right to know what the 5 surgical specimen showed, yes, sir. 6 Q. Let's talk for a moment about how this has affected 7 Father Walick. 8 Postoperatively, from your review of the records, how 9 did Father Walick do after the surgery of November 7th? 10 A. Well, after the surgery, he had -- he had diarrhea. 11 He subsequently developed a wound or an abscess. 12 Q. Let's talk about immediately postoperatively first. 13 Was this an extended hospitalization, do you recall? 14 A. Gosh, I don't recall the exact number of days. I -- I 15 just don't know, Mr. Hirshman. 16 Q. You recall, I assume, that he developed a 17 postoperative infection? 18 A. Postoperative infection, yes, he did. 19 Q. All right. And do you have an opinion as to whether 20 that postoperative infection was a direct and proximate cause of 21 the November 7th, 1984, surgery that was performed? 22 MR. POLING: Objection. 23 THE WITNESS: Yes, sir. 24 BY MR. HIRSHMAN: 25 Q. And what is your opinion? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 58 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Well, had he not had the surgery, he wouldn't have had 2 a post-op infection. 3 MR. POLING: Move to strike. 4 BY MR. HIRSHMAN: 5 Q. And you hold that opinion to a reasonable medical 6 probability, do you not? 7 A. Yes, I do. 8 Q. All right. And his hospitalization for that infection 9 was also the result of that surgery, correct? 10 A. Yes, sir. 11 MR. POLING: Objection. 12 BY MR. HIRSHMAN: 13 Q. And it was a direct and proximate result of that 14 surgery? 15 A. Yes, sir. 16 MR. POLING: Objection. 17 BY MR. HIRSHMAN: 18 Q. And you hold that opinion to a reasonable medical 19 probability? 20 A. Yes, sir. 21 Q. Okay. Now, thereafter, he developed an incisional 22 hernia; is that correct? 23 A. Yes, he did. 24 Q. Can you tell the jury what an incisional hernia is? 25 A. A hernia is just sort of an out-pouching of either -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 59 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 of -- not either. It's a -- anything within the abdomen through 2 that scar tissue or site where that -- where the incision is. 3 If the abdominal wall muscle is weak, the incision may 4 just sort of break open partially, and part of the abdominal 5 contents sort of push through that. 6 Q. So what was left of Father Walick's abdominal contents 7 was being -- 8 A. Well, there's a whole -- there's a whole lot left. 9 You still got a lot of small intestine. 10 Q. You got the small intestine left? 11 A. Yes, sir. Small intestine and -- 12 Q. Okay. And that was spilling out through the 13 incisional -- 14 A. I don't -- I don't know whether the small intestine 15 was spilling out, but he had what we call mesentery, this lining 16 in and out around the gut inside; some of that would have been 17 spilling out, not necessarily small bowel. 18 Q. And Dr. Eisenstat repaired that in 1987; is that your 19 recollection? 20 A. Yes, he did. 21 Q. And in his operative note he refers to it as a 22 "massive" incisional hernia, does he not? 23 A. Yes, he does. 24 Q. And that incisional hernia was due to the 25 November 7th, 1984, surgery that Dr. Eisenstat performed, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 60 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 correct? 2 A. Yes, sir. 3 MR. POLING: Objection. 4 BY MR. HIRSHMAN: 5 Q. And you hold that opinion to a reasonable medical 6 probability? 7 A. A medical certainty. 8 Q. Okay. Now, after that, he actually performed a 9 surgery to repair that incisional hernia? 10 A. Yes, he did. 11 Q. And the repair was done with the assistance of a 12 substance known as mesh, I believe? 13 A. Yes. 14 Q. In fact, I think the operative note refers to it as 15 Marlex mesh? 16 A. Yes, sir, that's right. 17 Q. Now, what is that? 18 A. I have no idea what Marlex mesh is. It's a kind of 19 mesh that I -- that surgeons use from time to time to -- to 20 repair incisional hernias. The difference between Marlex and 21 some other kind of mesh, I just couldn't tell you. I'm not 22 expert enough to know that. 23 Q. All right. But that surgery was done to repair the 24 incisional hernia from the procedure that was done on 25 November 7th, 1984? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 61 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, it was. 2 MR. POLING: Objection. 3 BY MR. HIRSHMAN: 4 Q. And had it not been for that procedure being done, the 5 1987 hernia repair would not have needed to be done? 6 MR. POLING: Objection. 7 THE WITNESS: That's right. 8 BY MR. HIRSHMAN: 9 Q. And you hold that opinion to a reasonable medical 10 probability? 11 A. Yes, sir. 12 Q. Now, postoperatively, you began to talk about this, 13 Father Walick developed some significant differences in his 14 elimination habits, did he not? 15 A. Yes. 16 Q. And how did -- what were those changes? 17 A. Well, although he had had diarrhea back prior to his 18 colonoscopy in his presenting complaint, before he ever got 19 colonoscoped, I gathered from the chart that his diarrhea became 20 more of a significant problem after his surgery. 21 Q. And, in fact, Dr. Gottesman talks about his diarrhea 22 as being quite intermittent? 23 A. Yes, sir. Yes. 24 Q. It wasn't a constant thing; isn't that what 25 "intermittent" means? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 62 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Well, I don't think he -- if I said constant, I didn't 2 mean to say it was more -- it doesn't mean it was constant. It 3 was more of a problem. 4 Q. He had diarrhea from time to time -- 5 A. Right. 6 Q. -- before the operation? 7 A. Right. 8 Q. Now, he has diarrhea every time he eliminates, 9 correct? 10 A. I don't know every time. I -- I don't know whether it 11 says every time, but it's certainly more than he had -- 12 Q. All right. 13 A. -- preoperatively, yeah. 14 Q. And you would agree that that diarrhea that he has 15 suffered in the post-operative period is the result of the 16 surgery where his colon was removed on November 7th, 1984? 17 A. Yes. 18 MR. POLING: Objection. 19 BY MR. HIRSHMAN: 20 Q. And you hold that opinion to a reasonable medical 21 probability? 22 A. Yes, sir. 23 Q. Now, in 1995 Father Walick developed a bowel 24 obstruction, did he not? 25 A. Yes, he did. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 63 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Why don't you describe, briefly, for us what a bowel 2 obstruction is? 3 A. Well, it's exactly what it says. The bowel gets 4 blocked at some point. It could be a small intestine, it could 5 be what's remaining of the large intestine. It either gets 6 kinked or gets plugged up with something that impedes the flow 7 of contents through it, and the patient begins to have abdominal 8 pain, bloating, and that almost -- if it's -- if it's a complete 9 obstruction, requires further surgery. 10 Q. And that obstruction was due, was it not, to the 11 surgery that was performed on Dr. Eisenstat on November 7th, 12 1984, and the surgery that was performed in 1987 to repair the 13 hernia that had come from that prior surgery? 14 MR. POLING: Objection. 15 THE WITNESS: That was -- it was -- it was, in fact, 16 due to adhesions as a consequence of small bowel being tacked -- 17 tacked up to that mesh graph that was put in. 18 MR. HIRSHMAN: All right. 19 MR. POLING: Move to strike. 20 BY MR. HIRSHMAN: 21 Q. And that occurred -- that would not have occurred had 22 he not had the November 7th, 1984, surgery? 23 A. That's right. 24 MR. POLING: Objection. 25 BY MR. HIRSHMAN: * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 64 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And that's your opinion to a reasonable medical 2 probability? 3 A. Yes, sir. 4 Q. And to your understanding, is it not, that 5 Dr. Borrison then proceeded to perform two surgeries upon Father 6 Walick to address his obstruction? 7 A. That's right. 8 Q. All right. And had it not been for the surgery of 9 November 7th, 1984, those surgeries of Dr. Borrison in January 10 of '95 would not have been necessary? 11 MR. POLING: Objection. 12 THE WITNESS: That's -- That's right. 13 BY MR. HIRSHMAN: 14 Q. And that's your opinion to a reasonable medical 15 probability? 16 A. Yes, sir. 17 Q. Now, after his extended stay at Lake Hospital, where 18 he began to recuperate from the surgeries performed by 19 Dr. Borrison, which, by the way, included a -- an injury to the 20 small intestine, did it not? 21 MR. POLING: Objection. 22 THE WITNESS: Yes, it did. 23 BY MR. HIRSHMAN: 24 Q. Why don't you describe that injury. 25 A. The injury, I think, was a kinking of the small * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 65 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 intestine and part of it had to be resected. 2 Q. There were also enterotomies that occurred -- 3 A. Right. 4 Q. -- were there not? 5 A. Well -- Well, they were fistulas, I think. 6 Q. Fistulas that formed as a result of holes that were -- 7 A. Right. 8 Q. -- made in the small intestines? 9 A. That's right. 10 Q. All right. During the attempts by Dr. Borrison to cut 11 away the scar tissue that had formed in his abdomen -- 12 A. Yes, sir. 13 Q. -- and to cut away the Marlex mesh -- 14 A. Uh-huh. 15 Q. -- that had been placed in the abdomen by 16 Dr. Eisenstat in 1987 -- 17 A. That's right. 18 Q. -- correct? All right. 19 So he was then transferred to Heather Hill for further 20 management after he was discharged from Lake Hospital, was he 21 not? 22 A. Yes -- I believe he was, yeah. 23 Q. All right. And that was in order -- As what kind of a 24 patient was he sent to Heather Hill? 25 A. Say again, I'm not sure -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 66 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Was -- He was there as a patient for purposes of 2 further recuperation, I take it, as a transfer patient? 3 A. I'm not really sure. I don't know that I've ever seen 4 those hospital records. 5 Q. Okay. You haven't seen the Heather Hill records? 6 A. Not that I recall, no, sir. 7 Q. All right. Well, then I won't ask you whether -- 8 A. Okay. 9 Q. I won't ask any further questions -- 10 A. Okay. 11 Q. -- about them if you haven't seen them. 12 A. Okay. No, I haven't seen those. 13 Q. All right. 14 MR. HIRSHMAN: Can we go off the record for one 15 moment. 16 VIDEO TECHNICIAN: Going off the record. 17 (Discussion held off the record.) 18 MR. HIRSHMAN: Let's go back on the record. 19 VIDEO TECHNICIAN: Back on the record. 20 BY MR. HIRSHMAN: 21 Q. Dr. Thomas, tell me, if you would, what your -- You're 22 not doing this for free -- 23 A. No, sir. 24 Q. -- I presume? 25 A. No, sir, I'm not. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 67 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. Okay. Tell us, if you would, what your -- how you're 2 being compensated for your involvement in this case on behalf of 3 Dr. Gottesman? 4 A. Yes, sir. Anytime I'm asked to review records on a 5 medical case, whether it's for plaintiff or the defendant, I 6 charge $350 an hour to review those records; to give deposition, 7 it's $500 an hour; to give trial testimony, or videotape 8 testimony, it's $700 an hour. 9 To date, I -- since 1997, having reviewed these 10 records probably at least a half a dozen times, I've been 11 compensated $700 total. 12 Q. I assume -- 13 A. Hardly -- hardly a lot of money. 14 Q. I assume you're going to bill for what time you have 15 spent that you haven't been compensated for today? 16 A. Yes, I have -- Yes, I am. I'm sorry. 17 Q. Yes, you are? 18 A. Yes, I am. 19 Q. Okay. 20 A. Last year I couldn't even spell doctor and now, I are 21 one. 22 (Laughter). 23 Q. And have you taken any notes -- made any notes in 24 regards -- 25 A. I did initially in 1997, and those have long since * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 68 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 gone, just sort of a chronology of what went on in this case. 2 Q. Okay. So they've been discarded? 3 A. Yes, they were discarded long ago, primarily because I 4 thought the case had been settled. I hadn't heard anything for 5 a year and three-quarters. 6 Q. Okay. Now, you didn't read Dr. Walick's -- 7 MR. CASEY: Father Walick. 8 BY MR. HIRSHMAN: 9 Q. -- deposition -- Father Walick's, excuse me, Father 10 Walick's deposition? 11 A. No, sir, I did not. 12 Q. And I think you indicated on direct testimony that it 13 was -- that Father Walick was advised that a hemicolectomy was 14 going to be performed upon him; was that your -- 15 MR. CASEY: Or recommended, I think, is what he said. 16 BY MR. HIRSHMAN: 17 Q. Okay. That he -- 18 A. That it was going to be recommended, and I think I -- 19 I got that from doc -- I got it from either -- I think I got it 20 from Dr. Gottesman's deposition, or may have got it -- gotten it 21 from the deposition that we did here a couple of weeks ago. I 22 don't really recall. 23 Q. But having not read Father Walick's deposition, you 24 would not have had available to you his testimony, where he 25 indicates that he was told that only a few inches of his colon * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 69 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 were going to be taken? 2 A. No, sir, I know nothing at all about that. 3 Q. All right. 4 MR. HIRSHMAN: Thank you very much. I have -- 5 THE WITNESS: Thank you. 6 MR. HIRSHMAN: -- no further questions at this time. 7 - - - 8 CROSS-EXAMINATION 9 BY MR. CASEY: 10 Q. Doctor, my name is Jim Casey. I'll go next, as soon 11 as I wake up the jury, I'm sure. We've been here an hour and a 12 half. 13 A. Bored the daylights out of them. 14 Q. The last issue that Tobie just touched on -- or that 15 Mr. Hirshman just touchd on, the fact that you have done this in 16 other cases -- 17 A. Uh-huh. 18 Q. -- you've been compensated in other cases. The fact 19 is, you have testified for both plaintiffs and defendants as an 20 expert -- 21 A. Yes, sir, I have. 22 Q. -- in court, fair? 23 A. Yes, I have. 24 Q. All right. And -- 25 A. Well, I haven't -- I haven't done so in court. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 70 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 I've -- 2 Q. Well, you've been asked to review cases on -- 3 A. I've been asked to review cases. I've only been to 4 court twice and both of those were for plaintiff. 5 Q. Sure. And then as to backing up in his 6 cross-examination as to all of those damages and all of those 7 consequences that Tobie took you through -- or that Mr. Hirshman 8 took you through -- 9 MR. CASEY: And I apologize for calling you "Tobie." 10 MR. HIRSHMAN: Let me -- Ask your question, and then I 11 want to go off the record for one second -- 12 MR. CASEY: All right. 13 MR. HIRSHMAN: -- and make a statement. Go ahead. 14 BY MR. CASEY: 15 Q. As to all of those damages that -- that you just went 16 through, if this jury believes that the original surgery in 17 November of 1984 was a reasonable option to offer to Father 18 Walick, and that it was a reasonable surgery to perform, then 19 while all of those damages may have flown from that surgery, 20 they would not flow from any negligence; is that fair? 21 A. Yes, sir. 22 Q. All right. 23 MR. HIRSHMAN: Can we stop for a second now? 24 MR. CASEY: Sure. 25 MR. HIRSHMAN: I want to -- I want to go off the * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 71 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 rec- -- off the camera. 2 VIDEO TECHNICIAN: Off the camera. 3 (Whereupon, the following colloquy was had off the 4 videotape record, and on the stenographic record.) 5 MR. HIRSHMAN: And stay on the record, and just note 6 my objection that I have stated to -- stated prior to this 7 deposition about attorneys for both the hospital and Dr. 8 Eisenstat cross-examining the witness in this case. My 9 objection is based on the fact that both attorneys are from the 10 same law firm, and a brief will be presented to the judge prior 11 to trial. 12 MR. CASEY: Our position will be that we each get to 13 cross-examine. We each have different interests, and we need to 14 protect those interests on behalf of our clients, but -- and 15 we'll brief it as well. 16 MR. POLING: And I concur with the hospital's 17 counsel's position on the case. 18 MR. CASEY: But, again, for this -- for the moment -- 19 MR. HIRSHMAN: My point exactly. 20 MR. POLING: Well -- 21 MR. CASEY: We'll go back on. 22 VIDEO TECHNICIAN: Back on the record. 23 (Whereupon, the videotape record was resumed.) 24 BY MR. CASEY: 25 Q. After going through that cross-examination that you * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 72 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 just went through, Doctor, would you agree with me that 2 hindsight's 20/20? 3 A. It's 20/20, maybe 20/30, sometimes 20/10. 4 Q. Sure. 5 A. A little better. 6 Q. Let's talk about how this patient came to be operated 7 on at Hillcrest Hospital. I think you said your understanding 8 is that the patient had gone to his family doctor? 9 A. Primary care physician, that's the way I understood 10 it. I don't know if it's a family doctor. 11 Q. Sure. And he had these complaints to his primary care 12 physician? 13 A. Uh-huh. 14 Q. His primary care physician then referred him to 15 Dr. Gottesman, who is a gastroenterology specialist, fair? 16 A. Yes, sir. 17 Q. The gastroenterology specialist then took the patient 18 to Hillcrest Hospital to do the colonoscopy after he had done a 19 sigmoidoscopy, fair? 20 A. That's right. 21 Q. And then after he -- After the specialist found the 22 results of his colonoscopy, it was the specialist who called in 23 the surgeon to consult about whether or not the patient needed 24 surgery, fair? 25 A. That's right. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 73 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And then it was that surgeon who took the patient to 2 Meridia Hillcrest Hospital to do the surgery? 3 A. That's right. 4 Q. So the hospital, in and of itself, was the site where 5 these doctors would provide Father Walick with medical care, 6 fair? 7 A. Yes, sir. 8 Q. All right. Now, I want to cover this business about 9 informed consent just for a minute because Mr. Hirshman touched 10 on it. 11 And I think you said that giving informed consent in 12 the endoscopy suit can be dangerous or inappropriate if the 13 patient doesn't remember what he's being told. There's a danger 14 of that, fair, and that's the reason that you -- that you 15 typically want to avoid that? 16 A. Yes, sir, I think it's always dangerous. 17 Q. Sure. But if the patient does remember it, and if the 18 patient does get the information, it doesn't matter if it 19 happens in a phone booth; is that fair? 20 A. That's right. 21 Q. All right. 22 A. That's right. 23 Q. Now, I want you to assume that there was this 24 conversation in the endoscopy suit the day before surgery; and 25 that Father Walick was advised about the options of surgery or * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 74 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 not surgery; then, some 13 years later, on February 11th of 2 1997, the lawyers in this case had an opportunity to take Father 3 Walick's deposition and ask him about that conversation that 4 happened in the endoscopy suit that Mr. Hirshman referred to. 5 And I want you to further assume that his testimony is 6 basically the following, beginning on Page 18, he says: "Then 7 they presented," quote, "'We can do one of -- I don't know if it 8 was two or three things,' but they presented me that," quote, 9 "'Well, you have already been prepared for the examination; 10 therefore, you are prepared for surgery. We can surgically 11 remove this precancerous' -- and I say 'precancerous group of 12 polyps; we can surgically remove that and you don't have to 13 undergo the flushing out and the laxative type of thing, or we 14 can give you this colonoscopy again and every six months examine 15 it and everything else.'" 16 Does that sound like a patient who didn't really 17 recall what was happening in the endoscopy suit? 18 A. No, it doesn't, but, you know -- 19 Q. Sounds like -- 20 A. I wasn't there. 21 Q. But that sounds like a patient who got informed 22 consent, doesn't it? 23 A. Yes, it does. 24 Q. All right. Now, I want to talk about doctors and 25 their specialties because I think while you testified on direct * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 75 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 examination that you were trying to limit your testimony in this 2 case to that of a gastroenterologist, I think Mr. Hirshman tried 3 to get you to cross over into surgery several times. 4 You're a gastroenterologist, right? 5 A. Yes, sir. 6 Q. All right. As a gastroenterologist, your practice 7 entails doing various endoscopic procedures? 8 A. That's part of what I do, yes, sir. 9 Q. You do them all the time? 10 A. All the time. 11 Q. You were trained for years on how to diagnose and 12 treat gastroenterologic diseases, fair? 13 A. Yes, I was. 14 Q. All right. You were specifically trained in how to do 15 these types of colonoscopies and sigmoidoscopies and the like, 16 fair? 17 A. Yes, sir. 18 Q. And that's what the majority of your post-medical 19 school training was about, fair? 20 A. That's right. 21 Q. All right. For instance, you're not an emergency room 22 specialist, fair? 23 A. Thank God. 24 Q. And you know that there are people who go, after 25 medical school, into emergency room residencies and they're * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 76 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 trained on how to do emergency room medicine, fair? 2 A. That's right. 3 Q. You're not an OB-GYN, right? 4 A. Even more thank God I'm not. 5 Q. But you know that there are doctors out there who are 6 specifically trained in how to deal with issues about OB-GYN, 7 fair? 8 A. Yes. Yes, sir, that's exactly -- 9 Q. And you're not a surgeon, true? 10 A. No, I'm not. 11 Q. And you know there are doctors out there, like Mike 12 Eisenstat, who are trained for years on how to do general 13 surgery? 14 A. Yes, sir. 15 Q. All right. And while you may have some idea of what 16 an emergency room physician may do or what an OB-GYN may do, or 17 what a surgeon may do, or what he may consider and think is 18 important or not important, that's really outside of your area 19 of expertise, isn't it? 20 A. Yes. 21 Q. Those areas? 22 A. Yes, it is. 23 Q. And you really have no business commenting on, you 24 know, what's appropriate or inappropriate for those specialties, 25 do you? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 77 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Well, when it comes to certain things, yeah. I 2 wouldn't -- I wouldn't give you a hundred percent of that, no, 3 sir. 4 Q. Well, sure. But a little knowledge is dangerous, 5 fair? 6 A. A little knowledge is always dangerous. 7 Q. Sure. And that's why in this case you've been careful 8 to limit your -- or tried to be careful on direct examination, 9 anyway, to limit your testimony to those items that deal with 10 the gastroenterologist in this case? 11 A. Yeah, I've been careful because I'm a 12 gastroenterologist; that's what I know best. I -- I think I'm 13 an expert at what I do, and I'm certainly not an expert at 14 surgery or any of the other medical or surgical specialties, and 15 that's the reason I've been careful, yes. 16 Q. Now, I want you to assume that this jury is going to 17 hear from a doctor, a surgeon who was hired by the plaintiff's 18 lawyer in this case, and that that surgeon is going to comment 19 on the appropriateness or inappropriateness of the -- of the 20 actions taken by Dr. Gottesman, the gastroenterologist. 21 I want you to further assume that there's a 22 gastroenterologist that's been hired by the plaintiff's lawyer, 23 who's going to comment on the appropriateness or 24 inappropriateness of the surgery in this case or whether surgery 25 should have been given as an option in this case by this -- by * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 78 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 the surgeon and the appropriateness of his standard of care. 2 As a medical doctor, can you comment on that, whether 3 it's appropriate, inappropriate? 4 A. Well, let me -- Let me answer your question this way: 5 If I were in one of these doctors' positions, I would want 6 somebody in my specialty either on my side or critiquing me. I 7 would not want somebody outside of my specialty doing that, no. 8 Q. Because they have no business critiquing you, do they? 9 A. No, I don't think they know what I do. 10 Q. Sure. And it -- by -- by going outside or stepping 11 across that line, doesn't that affect the validity of the entire 12 opinion, in your opinion? 13 A. Somewhat it does. I think -- I think there's a little 14 more credence to it if a gastroenterologist testifies for or 15 against a gastroenterologist, or a cardiologist for or against a 16 cardiologist, rather than having a surgeon do that or 17 conversely; yeah, I think so. 18 Q. Sure. And when this jury hears testimony, say, from 19 the surgeon on issues regarding surgery, they should be looking 20 to that and giving it more weight than they do the 21 gastroenterologist talking about surgery, fair? 22 A. I would think so, yes. 23 Q. So if the gastroenterologist's opinion about surgery 24 differs from the surgeon's opinion about surgery, then the 25 appropriate person to look to is the surgeon, fair? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 79 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes. 2 Q. All right. And the same vice versa, if the surgeon's 3 opinion about the gastroenterologist differs from the 4 gastroenterologist's opinion, then one should look to the 5 gastroenterologist to decide which one's appropriate, fair? 6 A. Yeah. 7 Q. All right. 8 A. I want a jury of my peers. 9 Q. Sure. 10 A. My peers are gastroenterologists. 11 Q. Now, let's talk about this patient and his condition 12 just for a few minutes. This patient originally was referred to 13 Dr. Gottesman because he had blood in his stool? 14 A. That's one of the reasons. He also had diarrhea. 15 Q. And diarrhea was the other reason. 16 In response to these problems, Dr. Gottesman performed 17 a sigmoidoscopy in his office and found multiple polyps or 18 lesions in this man's colon? 19 A. Yes, sir. 20 Q. All right. And as a result of finding these lesions, 21 Dr. Gottesman took the Father to the hospital and performed a 22 colonoscopy? 23 A. That's right. 24 Q. All right. Colonoscopies are not very pleasant, are 25 they? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 80 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. No. 2 Q. They -- 3 A. They're not -- They're not -- I mean -- 4 Q. Go lightly -- 5 MR. HIRSHMAN: Objection. Let him finish his answers 6 before you move on. 7 THE WITNESS: I may sound self-serving. They're not 8 pleasant, but they're also not particularly uncomfortable. 9 BY MR. CASEY: 10 Q. Sure. 11 A. If they were particularly uncomfortable, we wouldn't 12 do as many as we do, I don't think. 13 Q. Well, you -- you've talked about the fact that there 14 are risks -- 15 A. Sure. 16 Q. -- and we're not going to go back in all that. 17 A. Sure. 18 Q. But in performing the colonoscopy, Dr. Gottesman saw 19 multiple polyps, multiple lesions in the Father's colon? 20 A. Yes, sir. 21 Q. All right. Some of these polyps looked, to him, on 22 visual inspection, to be precancerous, fair? 23 A. Yes, sir. 24 Q. And some of these polyps were removed -- 25 A. Uh-huh. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 81 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. -- during the -- 2 A. That's right. 3 Q. -- colonoscopy? 4 A. That's right. 5 Q. But there was this one polyp that couldn't be removed? 6 A. That's right. 7 Q. All right. Now, we're going to, again, use the 8 retrospectoscope here, but some of those lesions that were taken 9 out by Dr. Gottesman did, in fact, turn out to be precancerous, 10 didn't they? 11 A. Yes, sir, they did. 12 Q. So on November 6th of 1984, Father Walick did have a 13 pre- -- did have precancerous lesions in his colon, true? 14 A. Well -- 15 Q. On November 6th? 16 A. I think we probably need to clarify what we're talking 17 about when we're talking about precancer. An adenomatous polyp 18 is precancerous by virtue of the fact that it may develop into a 19 cancer. 20 Q. Sure. 21 A. Not all adenomatous polyps are ever going to develop 22 into cancer. What percentage that is, I don't know, but I by -- 23 by strict definition, I suppose you could call all adenomatous 24 polyps precancerous. 25 Q. All right. So -- * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 82 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. I think -- I think most of us in medicine don't choose 2 to refer to them that way, though. 3 Q. All right. But to refer to them that way is not 4 inappropriate? 5 A. No, I don't think it's inappropriate. 6 Q. All right. And while the biopsy of the big polyp, or 7 the two-and-a-half centimeter polyp, which couldn't be removed 8 turned out to be -- not to be precancerous, at the time there 9 was no way for Dr. Gottesman to know that the entire polyp was 10 indeed precancerous, fair? Even -- even with the biopsy 11 results -- 12 A. Right. 13 Q. -- he couldn't know? 14 A. That was my whole point for saying that the -- you 15 need a surgical resection of that because there's no way to know 16 without having the whole polyp. 17 Q. Sure. And we also know that following this surgery in 18 November of 1984, this patient's own father, his own dad, 19 developed cancer, colon cancer, didn't he? 20 A. Yes, sir. 21 MR. HIRSHMAN: What year did you say? 22 MR. CASEY: Following the surgery, following this 23 surgery, following the November of '84 surgery, his own -- 24 THE WITNESS: A year. 25 MR. CASEY: -- dad developed surgery. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 83 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 THE WITNESS: It was a year later, I think. 2 BY MR. CASEY: 3 Q. Sure. Now, we also know that upon examination, when 4 the whole colon was looked at, after it had been surgically 5 removed, Father Walick's colon exhibited signs which showed 6 signs of early inflammatory bowel disease, fair? 7 A. That's the way the pathologist interpreted that, yes, 8 sir. 9 Q. Sure. And following the surgery, we also know that 10 Father Walick developed a condition known as steatorrhea, fair? 11 A. He developed steatorrhea at some point in time; I 12 don't remember exactly -- 13 Q. And it was after the surgery? 14 A. That was after the surgery, yeah. 15 Q. And for the jury, that's excessive fat in the -- in 16 the stool? 17 A. Excessive amounts of fat, meaning you're -- that the 18 patient is not absorbing fat in a normal manner. 19 Q. And that's yet another sign of inflammatory bowel 20 disease, isn't it? 21 A. It can be, yes. 22 Q. Now, a patient with signs of inflammatory bowel 23 disease and a family history of colon cancer and multiple 24 polyps, some of which are removed and found to be adenomatous 25 or -- and precancerous, well, that patient's at a significantly * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 84 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 higher risk of developing colon cancer, aren't they? 2 A. Well, one, yeah, the fact -- There's three reasons; 3 one, he's got a family history, that's albeit after the fact, 4 the fact remains is that that patient does have a high 5 history of -- a higher chance of having colon cancer. 6 He has already had polyps, which increases his risk. 7 And if it is Crohn's disease, then that increases his risk; so 8 there's really three factors that would increase the risk for 9 colon cancer in such a patient. 10 Q. Sure. And colon cancer can and does cause slow and 11 painful death in many people, fair? 12 A. Yes. 13 Q. And doctors, like yourself, work very hard to detect 14 and prevent patients from going through the terrible agony of 15 the treatment for colon cancer and the ultimate death that it 16 many times causes? 17 A. We try. 18 Q. Sure. That brings us to the criticisms in this case. 19 As you understand the criticisms, when you looked at the 20 letters, and as you listened to Mr. Hirshman, and as he 21 questioned you a couple of weeks ago, do you understand the 22 criticisms in this case to be basically that the doctors in this 23 case took the patient to surgery too early? 24 A. I think that's one of the criticisms, yes, sir. 25 Q. They're trying to say that, you know, you shouldn't * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 85 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 have taken this guy to surgery on November 7th; it just was 2 inappropriate at that time, it was too early? 3 A. As I say, yeah, I think that's one of the criticisms. 4 Q. Well, Doctor, while this Plaintiff's lawyer is -- is 5 suggesting that in this case, you've seen other cases and you 6 know of other cases, where exactly the opposite is true; where a 7 plaintiff's lawyer is coming in and saying, you know, you waited 8 too long and now my client has cancer and, you know what, you 9 should have been able to catch it earlier. That's the other 10 edge of that same sword, isn't it? 11 A. It's been my experience that's 99 percent of the other 12 edge. 13 Q. Sure. And in those cases where you -- where the claim 14 is, well, you waited too long, those patients have surgery -- or 15 no, have cancer, I should say, and they have to undergo things 16 like chemotherapy, they have to undergo treatment for that 17 cancer, they may or may not die, they deal with that anxiety? 18 A. Uh-huh. 19 Q. And that's a horrible thing in and of itself, too; 20 isn't it? 21 A. Yes, sir. 22 Q. So while doctors are trying, you know, to walk on that 23 edge of too early or too late, it's not an easy thing to do, is 24 it? 25 A. No, it never is. It never is. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 86 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. And you're subject to criticism, A, you took my client 2 to -- to surgery too early; and, B, you took my client to 3 surgery too late? 4 A. I'm -- I'm smiling because you're exactly right, but I 5 always tell medical students "You knew it wasn't going to be 6 easy when you signed up." 7 Q. You're damned if you do, and you're damned if you 8 don't? 9 A. That's right. 10 Q. Now, let's address whether this surgery was too early, 11 first, as it relates to Dr. Gottesman, since that's, you know, 12 who you've been asked to comment on. 13 A. Yes, sir. 14 Q. He's a gastroenterologist, fair? 15 A. Yes, he is. 16 Q. Now, gastroenterologists earn their living partially 17 by doing things like colonoscopies? 18 A. That's right. 19 Q. They make money from doing colonoscopies? 20 A. Yes, sir. 21 Q. So in Dr. Gottesman's case, if he were to recommend 22 and follow this patient with routine, yearly colonoscopies, he 23 would earn a financial benefit from that? 24 A. Yes, he would. Certainly would. 25 Q. So by sending this patient to surgery, he was going to * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 87 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 receive no financial benefit, fair? 2 A. He wouldn't receive any. 3 Q. So, really, by -- by saying to the patient "I think 4 your best option is surgery," he's going against his own 5 financial benefit in this case? 6 A. Yes, but I -- In spite of what's written, doctors just 7 don't do things for financial benefits -- 8 Q. Exactly -- 9 A. -- not the ones that I know. 10 Q. And that's exactly my point. Isn't that the ultimate 11 proof in this case, that he really believed what he was -- what 12 he was recommending? 13 A. Well, I -- I think he clearly believed that that was 14 the right thing to do, and he was doing that in the best 15 interest of his patient, and that's what he's supposed to do. 16 Q. Now, it was reasonable in the endoscopy suit, as I 17 read you Father Walick's testimony, to offer him repeat 18 colonoscopies, fair? 19 A. That was reasonable, yes, sir. 20 Q. It was reasonable to offer him that, but it was also 21 reasonable to offer him surgery, was it not? 22 A. Yes, it was. 23 Q. In fact, it's your opinion that surgery, in this case, 24 was the best option? 25 A. That's my opinion, yes, sir. * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 88 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 Q. That while it may be reasonable to offer this patient 2 repeat colonoscopies, the best thing to do was go in and do 3 surgery on this patient? 4 A. That's my opinion. 5 Q. And that's your opinion even knowing -- 6 A. Even knowing that it was an inflammatory polyp, yes, 7 sir. 8 Q. Even knowing the results of that pathology report, the 9 best option for this patient still was going to be surgery? 10 A. Even knowing that the biopsies were read as an 11 inflammatory polyp, my recommendation would have been exactly 12 what Dr. Gottesman's was. 13 Q. And that -- So when Mr. Hirshman asked you questions 14 about didn't the patient have a right to know about the finding 15 of the pathology before he was taken to surgery, ultimately, in 16 this case, had that information been communicated, the doctor's 17 best option and their best recommendation in this case, still 18 would have been we think you should go to surgery? 19 A. Well, actually, I think Mr. Hirshman asked me did he 20 have a right to know, after his surgery, in which case, I 21 responded yes -- 22 Q. Well, he asked you both. 23 A. -- he had a right to know after his surgery. He -- A 24 short answer to your question would have been, I would have 25 recommended the same thing had I known this was an inflammatory * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 89 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 polyp prior to surgery -- 2 Q. And the fact -- 3 A. -- and had I told Father Walick. I don't, in fact, 4 know what he was told prior to surgery -- 5 Q. Sure. 6 A. -- because I haven't read his deposition, I don't have 7 any facts. But whether or not he was told or not, my 8 recommendation, as Dr. Gottesman's was, would have been 9 identical, the patient needs to have that polyp out surgically. 10 Q. And do you have any information, or based on your 11 experience, in all probability, with that recommendation, most 12 patients follow it, don't they? 13 A. Most do and -- 14 Q. Some don't? 15 MR. HIRSHMAN: Let him finish his answer, please. 16 THE WITNESS: Some do, and I -- and I suppose that's a 17 good thing if -- if -- if they have trust in their physician. 18 BY MR. CASEY: 19 Q. But most people do follow the recommendations of their 20 doctor? 21 A. Most people do, and most -- and -- well, I don't -- I 22 can't remember far back in 1984, but I can tell you in 1999 they 23 ask a lot of questions. 24 Q. Sure. And in 1984, on November 7th, even if the 25 results of that pathology had been blown up on a great big * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 90 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 board, like I'm sure the jury's going to see in this case -- 2 A. Uh-huh. 3 Q. -- this recommendation and the best option for this 4 patient still would have been surgery? 5 A. That's my opinion, yes, sir. 6 MR. CASEY: That's all I have. 7 MR. POLING: Dr. Thomas, my name's Brant Poling. I'm 8 here today on behalf of the surgeon in this case, Mike 9 Eisenstat. I have the pleasure of appearing on behalf of him 10 together with Gary Goldwasser. 11 MR. HIRSHMAN: Note the same objection that I made off 12 camera earlier. I renew it now. 13 MR. POLING: In light of the fact that you are not a 14 surgeon, I'm going to allow you to stick to your area of 15 expertise. 16 THE WITNESS: Okay. 17 MR. POLING: I have no questions for you today. 18 THE WITNESS: Okay. 19 MR. POLING: Thank you very much. 20 THE WITNESS: Thank you. 21 MR. LEAK: Doctor, I do have some follow-up questions. 22 - - - 23 REDIRECT EXAMINATION 24 BY MR. LEAK: 25 Q. With regard to pathology reports in this case, * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 91 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 essentially there were two pathology reports in November of 2 1984, correct? 3 A. Yes, sir. 4 Q. And what were those two pathology reports? 5 A. Sure. The two pathology reports, one was from the 6 colonoscopy with the biopsies and the polyp removal, and the 7 other one was the actual surgical specimen that the pathologist 8 looked at after the colon was taken out. 9 Q. With regard to the polyp at the hepatic flexure, which 10 one of the pathology reports is more definitive in diagnosis? 11 A. The second one, the surgical specimen. 12 Q. So when that pathology report came back with -- after 13 the colonoscopy, that showed inflammatory changes? 14 A. Yes, sir. 15 Q. Okay. That is not a definitive diagnosis for that 16 polyp, is it? 17 A. No. 18 Q. Okay. And is that why you have the opinion that -- 19 MR. HIRSHMAN: I'm going to object to you -- you 20 are -- 21 MR. LEAK: Okay. 22 MR. HIRSHMAN: He's your witness. I was very lenient 23 with Mr. Casey. 24 MR. LEAK: Sure. 25 MR. HIRSHMAN: I'm not going to be as lenient with * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 92 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 you. Ask a question that isn't a leading question, if you 2 would. 3 BY MR. LEAK: 4 Q. Doctor, with regard to that pathology report and the 5 findings of inflammatory changes, how does that effect a 6 gastroenterologist's opinion or recommendation with regard to 7 surgery specifically in this case? 8 A. Well, specifically in this case, given the size of 9 that polyp, what it looked like grossly, clearly didn't effect 10 Dr. Gottesman's, and it wouldn't effect my opinion about it 11 either. 12 Q. We know that two of the polyps came back 13 adenomatous -- 14 A. Yes, sir. 15 Q. -- correct? 16 A. Uh-huh. 17 Q. Does a gastroenterologist take that into consideration 18 when recommending surgery or follow-up biopsies? 19 A. Well, if you -- if you colonoscope a patient and see 20 that they have adenomatous polyps, the polyps that you've taken 21 out, you know they're adenomatous, then you would recommend that 22 patient come back every two to three years for colonoscopic 23 surveillance. Other than that, I don't attach a great deal of 24 significance to that, no. 25 Q. How does the findings of the adenomatous polyps affect * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 93 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 the diagnosis or the decision to treat the polyp that came back 2 with inflammatory changes? 3 A. It wouldn't influence me one way or the other. 4 Q. Still the same decision? 5 A. Yes, sir. 6 Q. Doctor, there was a lot of discussion about what was 7 discussed with Father Walick following the colonoscopy. 8 A. Uh-huh. 9 Q. Do you recall that testimony? 10 A. Yes, sir. 11 Q. Okay. Was there anything to preclude Dr. Gottesman to 12 discuss the options available to Mr. Walick without the benefit 13 of the pathology report in the endoscopy suit? 14 A. No. 15 Q. Okay. Why is that? 16 A. Because it's -- I think it's -- he's obligated to -- 17 to tell the patient what he found endoscopically regardless of 18 what those biopsies show. He needs to tell the patient you 19 either had something or you didn't have something. 20 Q. From a gastroenterology standpoint, if Dr. Gottesman 21 spoke to Father Walick following the colonoscopy regarding 22 options, is that obtaining informed consent for the surgical 23 procedure down the road? 24 A. No. 25 Q. Okay. Can you please explain? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 94 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Well, informed consent is a -- is a more detailed kind 2 of thing. I think explaining options to a patient is part of 3 informed consent, but clearly is not all of informed consent. 4 MR. LEAK: Thank you, Doctor. I have nothing further. 5 - - - 6 RECROSS-EXAMINATION 7 BY MR. HIRSHMAN: 8 Q. I'll try to keep it -- 9 A. That's okay. 10 Q. -- very brief. It's Tobie Hirshman again. 11 A. Yes, sir. 12 Q. Let me look at my notes here. 13 Mr. Casey asked you a number of questions about the 14 hospital's role here. 15 A. Yes, sir. 16 MR. CASEY: You don't get to ask him questions about 17 what I ask. 18 MR. HIRSHMAN: Sure I do. 19 MR. CASEY: Okay. I'll object. It's beyond the scope 20 of redirect examination, but okay. 21 BY MR. HIRSHMAN: 22 Q. Do you know whether this hospital held itself out to 23 be engaged in the practice of medicine? 24 A. No. 25 Q. You don't know one way or the other? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 95 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. No. 2 Q. Okay. Do you know what Father Walick understood the 3 hospital's role to be in the provision of care to him? 4 A. Only on a -- sort of a generic basis about what most 5 people think hospitals do for them. I mean, I -- Specifically, 6 no, I don't. 7 Q. So you don't know what his thoughts were, what his 8 understanding was as to the relationship between Dr. Eisenstat 9 and the hospital, and to what extent that relationship was part 10 of his decision-making process to proceed to be admitted and 11 have surgery? 12 A. Well, my assumption would be that he thought that that 13 was a very good hospital, that he was in good hands when he was 14 there, that -- 15 Q. But having not read -- 16 A. But having not read, I wouldn't know, no, sir. 17 Q. Having not read Dr. -- or Father Walick's -- 18 A. I think he -- I think anybody would be ill advised to 19 go into a hospital that you didn't trust. 20 Q. All right. You have no understanding as to what was 21 represented to him as being the relationship between 22 Dr. Eisenstat and the hospital? 23 A. No. 24 Q. Okay. 25 MR. CASEY: I'll note my continuing objection on that * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 96 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 line now. 2 BY MR. HIRSHMAN: 3 Q. Now, Mr. Casey indicated to you that -- 4 MR. CASEY: I'll start my continuing objection to this 5 line now. 6 BY MR. HIRSHMAN: 7 Q. He related to you excerpts from the deposition 8 testimony of Father Walick as to what was contained in the 9 conversation -- 10 A. Yes, sir. 11 Q. -- in the endoscopy suit? 12 A. Yes, he did. 13 Q. And you agreed with him that Father Walick clearly had 14 a recollection of what occurred, based on what he told you? 15 A. Based on what he told me, yes, sir. 16 Q. Obviously, we know, do we not, that he had recently 17 been administered Demerol, okay? 18 A. Yes, sir. 19 Q. He had recently been administered Vistaril, had he 20 not? 21 A. Yes, he had. 22 Q. And those drugs frequently not only have an effect on 23 memory, but also, and independently, have an effect on one's 24 ability to judge the severity of the circumstances that they're 25 presented with? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 97 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 MR. POLING: Objection. 2 BY MR. HIRSHMAN: 3 Q. Okay. 4 A. All right. Yes, they -- Yes, they do. 5 Q. Now, we've established that you're not a general 6 surgeon? 7 A. I'm not. 8 Q. Okay. You work hand in hand, especially in cases like 9 this, with general surgeons? 10 A. Yes, sir. 11 Q. You sometimes, as you've already indicated, are 12 involved in conversations in tandem with a general surgeon -- 13 A. Yes, sir. 14 Q. -- where a patient is told what the plans are in order 15 to get his consent or his opinions as to what should be done? 16 A. Yes, sir. 17 Q. All right. 18 MR. CASEY: Just note a continuing objection to all of 19 this as beyond the scope of redirect. 20 BY MR. HIRSHMAN: 21 Q. And you've got to, in many ways, coordinate your 22 efforts with those of the general surgeon in order to provide a 23 continuity of care for the patient, correct? 24 A. Correct. 25 Q. You're not contending that all patients whose fathers * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 98 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 have had colon cancer, by virtue of that family history of colon 2 cancer, are appropriate candidates for subtotal colectomies, are 3 you? 4 A. No. 5 Q. You're not contending that all patients with polyps, 6 even with adenomatous polyps, by virtue of that fact, are 7 appropriate candidates for subtotal colectomy, are you? 8 A. No. 9 Q. And you're not contending that all patients with 10 Crohn's disease are candidates -- or with inflammatory bowel 11 disease are appropriate candidates for a subtotal colectomy, are 12 you? 13 A. No, I'm not, and most are not candidates for it. 14 Q. All right. And we don't even know whether Father 15 Walick had Crohn's disease or not, do we? 16 A. I don't think we know that for fact, no, sir. 17 Q. Mr. Casey indicated the general -- or that 18 gastroenterologists earn their living by doing colonoscopies, I 19 believe, was the -- 20 A. That's -- 21 Q. -- the thrust of that line of questions? 22 A. Sounds kind of bad when you -- when you play it back, 23 but yes, that's one -- that's one of the things we do; yes, sir. 24 Q. Okay. It's also true that general surgeons earn their 25 living doing surgeries? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 99 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, they do. Yes. 2 Q. So to the extent that Mr. Casey is trying to impute a 3 financial motivation into the decision-making process, we'd have 4 to make the same imputation for the general surgeon, would we 5 not? 6 MR. CASEY: Objection -- 7 MR. POLING: Objection. 8 MR. CASEY: -- to the term "imputation." 9 THE WITNESS: I think so, yes, sir. 10 BY MR. HIRSHMAN: 11 Q. There was some discussion regarding the conversation 12 that occurred in the endoscopy suit and what options were made 13 available to Father Walick; do you recall that? 14 A. Yes. 15 Q. Okay. 16 MR. CASEY: My objection continues to all this. 17 BY MR. HIRSHMAN: 18 Q. You would agree with me that patients -- Strike that. 19 I won't get into that. I think we've already covered 20 it. 21 Part of what we talked about, as it relates to the 22 conversation between Father Walick and his two physicians in the 23 endoscopy suit, elicited an answer from you where you indicated 24 that typically when advice is given, patients will, at least 25 frequently, ask questions? * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 100 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 A. Yes, sir. 2 Q. Certainly, if Father Walick had known that the 3 pathology report from the biopsy during the colonoscopy showed 4 an inflammatory polyp rather than a precancerous polyp, he would 5 have had some additional questions to ask, wouldn't he have? 6 MR. POLING: Objection. 7 THE WITNESS: I would guess he would, yes. 8 MR. HIRSHMAN: No further questions. 9 MR. CASEY: That's it? 10 MR. HIRSHMAN: That's all I have. 11 VIDEO TECHNICIAN: Doctor, you have -- 12 MR. CASEY: Wait. Move to strike all of that 13 testimony as being beyond the scope of redirect examination, but 14 assuming that the Judge is going to allow it to be played -- 15 - - - 16 RECROSS-EXAMINATION 17 BY MR. CASEY: 18 Q. Doctor, while you do not mean to impute that a person 19 with a family history -- a person with a family history of colon 20 cancer, all those people should have their colons removed; or 21 individuals who just have polyps, all those individuals should 22 have surgery; or people with early signs of Crohn's disease, all 23 those people should have surgery, you do mean to impute in this 24 case that, with all of the facts and circumstances as it related 25 to this patient on November 7th of 1984, surgery was a * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 101 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 reasonable and viable option for this patient? 2 A. I indicated that, regardless of those other three 3 facts. 4 Q. Regardless of pathology? 5 A. Yes, sir. 6 Q. No pathology? 7 A. The -- 8 Q. Anything? 9 A. Yes, sir. 10 Q. This patient was a surgical candidate and surgical -- 11 surgery was a reasonable option to offer this patient? 12 A. For that polyp, yes, sir. 13 Q. And a reasonable recommendation to make? 14 A. For that polyp, yes. 15 MR. CASEY: That's all I have. 16 MR. LEAK: Thank you, Doctor. 17 THE WITNESS: Okay. 18 VIDEO TECHNICIAN: Doctor, real quick. By law, you do 19 have the right to immediate review of the tape, if you'd like 20 to -- 21 THE WITNESS: I don't want to see it. 22 VIDEO TECHNICIAN: -- or you can waive. Going off the 23 record. 24 (Discussion held off the record.) 25 (Whereupon, the following colloquy was had off the * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER * 102 MC GINNIS & ASSOCIATES, INC. COLUMBUS, OHIO (614) 431-1344 1 videotape record.) 2 MR. LEAK: It sounds like the deposition won't be 3 ready until Monday. Anyone have any objection to me filing this 4 on Monday for purpose of trial? 5 MR. HIRSHMAN: No. 6 MR. CASEY: No objection. 7 MR. POLING: No objection. 8 - - - 9 (Signature waived.) 10 - - - 11 (Thereupon, the videotape deposition was concluded at 12 7:16 o'clock p.m. on Wednesday, April 7, 1999.) 13 - - - 14 15 16 17 18 19 20 21 22 23 24 25 * DEPONET AFFILIATE * CERTIFIED MIN-U-SCRIPT PUBLISHER *