0001 1 IN THE COURT OF COMMON PLEAS 2 OF CUYAHOGA COUNTY, OHIO 3 - - - - - 4 CAESAR C. DAILEY, Individually and as 5 Administrator of the Estate of Lillian 6 Dailey, Deceased, Plaintiff, 7 vs. Case No. CV-07-629950 OHIO PERMANENTE 8 MEDICAL GROUP, Inc., et al., 9 Defendants. 10 - - - - - 11 DEPOSITION OF SHEILA VERGHESE, M.D. 12 TUESDAY, JANUARY 29, 2008 13 - - - - - 14 Deposition of SHEILA VERGHESE, M.D., a 15 Defendant herein, called by the Plaintiff for 16 examination under the statute, taken before me, 17 Cynthia A. Sullivan, a Registered Professional 18 Reporter and Notary Public in and for the State 19 of Ohio, pursuant to notice and stipulations, at 20 the offices of Buckingham, Doolittle & 21 Burroughs, One Cleveland Center, 1375 East Ninth 22 Street, Suite 1700, Cleveland, Ohio, on the day 23 and date set forth above, at 10:00 a.m. 24 - - - - - 25 0002 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 Becker & Mishkind Co., LPA, by 4 HOWARD D. MISHKIND, ESQ. 5 JESSICA PERSE, ESQ. 6 Skylight Office Tower 7 1660 West Second Street 8 Suite 660 9 Cleveland, Ohio 44113 10 (216) 241-2600 11 12 On behalf of the Defendants: 13 Buckingham, Doolittle & Burroughs, LLP, by 14 DIRK E. RIEMENSCHNEIDER, ESQ. 15 1375 East Ninth Street 16 Suite 1700 17 Cleveland, Ohio 44114 18 (216) 621-5300 19 ---- 20 21 22 23 24 25 0003 1 SHEILA VERGHESE, M.D., of lawful age, 2 called for examination, as provided by the Ohio 3 Rules of Civil Procedure, being by me first duly 4 sworn, as hereinafter certified, deposed and 5 said as follows: 6 EXAMINATION OF SHEILA VERGHESE, M.D. 7 BY MR. MR. MISHKIND: 8 Q. Would you please state your name for 9 the record. 10 A. Sheila Verghese. 11 Q. Would you spell your last name, 12 please. 13 A. V-E-R-G-H-E-S-E. 14 Q. You are a physician; is that 15 correct? 16 A. Yes. 17 Q. It's my understanding that you were 18 involved in some of the treatment of Lillian 19 Dailey; is that correct? 20 A. Yes. 21 Q. Doctor, have you ever had your 22 deposition taken before? 23 A. No. 24 Q. Let me give you a couple 25 instructions and a couple requests so that we 0004 1 make sure that we are on the same page 2 throughout the deposition; okay? 3 A. Okay. 4 Q. One, make sure that you understand 5 my question before venturing an answer. If you 6 don't understand the question, just tell me, 7 Mr. Mishkind, or you can feel free to call me 8 Howard, I don't understand. I will rephrase the 9 question. 10 A. Okay. 11 Q. Will you do that before answering? 12 A. Yes. 13 Q. May I conclude that if you answer a 14 question, it's because you understood the 15 question? 16 A. Yes. 17 Q. If for any reason you want to take a 18 break during the course of the deposition, 19 please, let me know, and I'll be happy to take a 20 break; okay? 21 A. Okay. 22 Q. The reason I tell you this at the 23 beginning of the deposition is, number one, it's 24 your first deposition; and number two, I want to 25 be as fair as I possibly can to you during the 0005 1 course of the deposition so that when we're done 2 at the end of the deposition, there's no 3 gamesmanship, there's no secrets in terms of 4 talking about Lillian and getting an explanation 5 from you in terms of your involvement in this 6 case; okay? 7 A. Okay. 8 Q. I'm not quite sure how long the 9 deposition is going to be, so if you need to 10 take a break or if you need to review the 11 records to answer any of my questions, more 12 importantly, please, review the records. This 13 is not a memory contest; okay? 14 A. Okay. 15 Q. What I'm going to do is I'm going to 16 start out by asking you some questions about 17 your background, your training, and your 18 employment. I'm going to ask you some questions 19 relevant to some of the medical subject matter 20 that is involved in this case, and then we'll 21 talk about your involvement with Lillian 22 Dailey's care in May and June of '05 and then 23 leading up to her ultimate demise and what 24 knowledge you may have; okay? 25 A. Okay. 0006 1 Q. To give you sort of a roadmap in 2 terms of where we're going; fair enough? 3 A. Yes. 4 Q. Tell me first, who are you currently 5 employed by? 6 A. I'm employed part time with Kaiser 7 Permanente. 8 Q. How long have been employed part 9 time by Kaiser Permanente? 10 A. For the last seven years. 11 Q. You said Kaiser Permanente. It's my 12 understanding that physicians that work at 13 Kaiser Permanente are actually employees of Ohio 14 Permanente Medical Group. 15 A. Yes. 16 Q. So when you say you're part time 17 with Kaiser Permanente, is your employer really 18 Ohio Permanente Medical Group? 19 A. Yeah. My paycheck comes from Ohio 20 Permanente. 21 Q. One of the other instructions is 22 that you should wait until I'm finished with my 23 question entirely before you start answering. I 24 will not interrupt you at all when you're 25 explaining things. I want to give you an 0007 1 opportunity to answer questions fully. I'm not 2 going to limit you to a yes or a no if you need 3 to explain things; okay? 4 A. Yes. 5 Q. Also, if I'm asking you a question, 6 wait until I'm done entirely with the question 7 because you might think I am going one way and 8 you may be formulating an answer, this may sound 9 sort of elementary, but it's important and 10 Mr. Riemenschneider will tell you, sometimes you 11 may just wonder whether my question is ever 12 going to end. Wait until I'm done entirely 13 before you answer. 14 Don't even start nodding your head 15 affirmatively one way or another to the question 16 until it's entirely done; okay? 17 A. Okay. 18 Q. Of secondary importance to all of 19 this is this young lady seated to my left, she 20 has to take everything down, so make sure your 21 answers are verbal. 22 A. Yes. 23 Q. Also, make sure we're not crossing 24 over each other because I don't want to have her 25 lined up with a splitting headache at the end of 0008 1 the deposition trying to figure out who said 2 what. 3 A. Okay. 4 Q. You mentioned to me a moment ago you 5 are part time. 6 A. Yes. 7 Q. How long have you been part time 8 with Ohio Permanente? 9 A. Since 2000. 10 Q. What constitutes part time? How 11 many hours a week is that? 12 A. The last two years it's been only 13 eight hours. Before that it could be anywhere 14 from 20 to 24 hours per week. 15 Q. Why are you only working eight hours 16 currently? 17 A. Because that's the need they have. 18 Q. At Ohio Permanente? 19 A. Yes. 20 Q. Before starting to work at Ohio 21 Permanente, where were you employed? 22 A. I was working for Lakewood Hospital 23 for five years. 24 Q. You started then at Ohio Permanente 25 in 1999? 0009 1 A. Originally I started in 1990. 2 Q. You worked at Ohio Permanente up 3 until when? 4 A. Until '95 as a full-time. 5 Q. What happened then in '95? 6 A. In '95 they said they did not want 7 just office physicians. It was a business 8 decision. They did not just want office. They 9 wanted like doing the surgery and all that, 10 on-call. 11 Q. Was your position then in 1995 12 terminated? 13 A. It was eliminated, like several 14 physicians, office physicians. 15 Q. What did you do professionally then 16 when your position was eliminated in 1995? 17 A. I went and joined Lakewood Hospital. 18 Q. Were you a house physician at 19 Lakewood Hospital? 20 A. No. They had a clinic. I was 21 working in their clinic. 22 Q. What was the name of the clinic? 23 A. Lakewood Hospital Women's Clinic. 24 Q. Were you working full time? 25 A. Yes. 0010 1 Q. That would have taken you up until 2 what year? 3 A. Until the beginning of 2000. 4 Q. Then what happened in the year 2000? 5 A. In the year 2000, the Cleveland 6 Clinic eliminated the Lakewood Hospital clinic, 7 so it became a private Cleveland Clinic office. 8 Q. What happened to your employment 9 with Lakewood Hospital? 10 A. Yeah. The clinic, there was no 11 further clinic, so I couldn't work in that 12 clinic. The clinic was eliminated. 13 Q. You were not offered a position with 14 the Cleveland Clinic? 15 A. I did not apply to the Cleveland 16 Clinic. 17 Q. Your position then was eliminated -- 18 A. Because there was no clinic. 19 Q. What did you do then professionally? 20 A. Then I just called Kaiser. 21 Q. Ohio Permanente? 22 A. Ohio Permanente. 23 Q. Just to trace back to the beginning 24 of the deposition, you then started working in 25 approximately 2000 again -- 0011 1 A. Again. 2 Q. -- for Kaiser Permanente? 3 A. Kaiser, OPMG. 4 Q. That would be 20 to 24 hours a week? 5 A. It was four days a week, so that 6 would be 32 hours. 7 Q. What office did you work at? 8 A. I worked at the Parma office. 9 Q. When you saw Lillian Dailey in 2005, 10 what office were you working at? 11 A. Cleveland Heights. 12 Q. Were you working 20 to 24 hours a 13 week at the Cleveland Heights office at that 14 time? 15 A. Cleveland Heights and Parma. 16 Q. You would go between the two 17 offices? 18 A. And Fairlawn. Three, I went to 19 three offices. 20 Q. Tell me a little bit about your 21 education starting with medical school. Where 22 did you go to medical school? 23 A. I went to Stanley Medical College in 24 Madras, India. 25 Q. What year, ma'am? 0012 1 A. I graduated in 1969. 2 Q. Tell me about your training after 3 graduating from medical school. 4 A. I went into postgraduate training in 5 Ob/Gyn. 6 Q. Where? 7 A. In India; Madras, India. 8 Q. How long did your postgraduate 9 training in Ob/Gyn last? 10 A. Two years. 11 Q. This would take us up to 1971? 12 A. Yes. 13 Q. What did you do after your 14 postgraduate training? 15 A. In 1971 I came as an intern to 16 Barberton Citizens Hospital, Barberton, Ohio. 17 Q. Tell me about your training then at 18 Barberton Citizens Hospital. 19 A. I did one year of rotating 20 internship which included Ob/Gyn, surgery, 21 medicine, and pediatrics. 22 Q. After that one year which would take 23 us up to 1972, what did you do professionally 24 thereafter? 25 A. I did my Ob/Gyn residency training 0013 1 at St. Luke's Hospital, Cleveland. 2 Q. How many years was that program? 3 A. Three years. 4 Q. So that would take us up to 1975? 5 A. Yes. 6 Q. What did you do after completing 7 your Ob/Gyn residency? 8 A. I worked as a house physician at 9 Booth Memorial Hospital, Cleveland. 10 Q. A blast from the past. How long 11 were you at Booth Memorial Hospital? 12 A. For two years. 13 Q. What did you do then? 14 A. After that I left Booth Memorial 15 Hospital because I had my baby, and I couldn't 16 do any more night calls, so I went to the City 17 of Cleveland for two years in the GYN clinic. 18 They had a family planning and GYN clinic at 19 McCafferty Health Center. 20 Q. That would take us up to? 21 A. '79. 22 Q. Did you then leave the McCafferty 23 clinic to take another position in 1979? 24 A. Yeah. I went to Metro Hospital. 25 Q. In the department of Ob/Gyn? 0014 1 A. Ob/Gyn. 2 Q. Up until what year? 3 A. Until 1990, '79 to '90. 4 Q. Do you have any further 5 certification in any specialty area within the 6 practice of obstetrics and gynecology? 7 A. No. 8 Q. Are you board certified in 9 obstetrics and gynecology? 10 A. I'm board eligible. 11 Q. When did you become board eligible? 12 A. Right after my residency. We had an 13 exam to take. 14 Q. That would have been the residency 15 at Barberton? 16 A. No, at St. Luke's's Hospital. 17 Q. St. Luke's, I'm sorry. So you 18 became board eligible in '75? 19 A. Yes. 20 Q. Have you sat for the boards at any 21 time since becoming board eligible? 22 A. I wrote the written part again in 23 '97. 24 Q. I'm sorry, ma'am. I didn't catch 25 that. 0015 1 A. The part one of the boards again in 2 '97. 3 Q. Were you successful in completing 4 the boards in 1997? 5 A. Yes. 6 Q. You mentioned that you're board 7 eligible. 8 A. Right. 9 Q. But you are not board certified? 10 A. Right. 11 Q. Why are you not board certified? 12 A. Because we have to collect cases in 13 which we do surgery and deliveries, inpatient 14 cases. As I told you, I had my baby, and I was 15 postponing it, and then I just got into the 16 office situation. 17 Q. So the first time that you took the 18 boards, the written, was right after finishing 19 your residency? 20 A. Yes. 21 Q. At that time you were unsuccessful? 22 A. No. I passed. 23 Q. You passed the written? 24 A. But there is two parts to it. 25 Q. Okay. The first part that you 0016 1 passed, was that the written part? 2 A. Yes. 3 Q. Then the other part is what? 4 A. The oral part where we have to 5 collect cases which we do surgically for two 6 years. So I was at Booth, and I had collected 7 the cases, but then I had my baby, and it just 8 came I couldn't submit it because there was too 9 much going on. 10 Q. So between 1975 and 1997, correct me 11 if I'm wrong, you did not -- 12 A. Make an attempt. 13 Q. Let me finish. That's one of those 14 rules. Even though you know where I'm going, 15 every once in a while I like to hear myself 16 talk. 17 Between 1975 and 1997, in order to 18 become board certified you needed to complete 19 the requisite number of cases and take the oral 20 portion of the boards; true? 21 A. True. 22 Q. Did you make application prior to 23 1997 to complete the board certification? 24 A. No. 25 Q. Now, what happened in 1997? Did you 0017 1 attempt to complete the oral part, or have you 2 to this date not completed the oral part? 3 A. I called the boards, and I asked 4 them, and they said I have to write the part one 5 again. 6 Q. So in '97 did you take part one 7 again? 8 A. Yes. 9 Q. Did you pass part one? 10 A. Yes. 11 Q. Between '97 and 2008, over the last 12 11 years, the reason that you have not become 13 board certified is what? 14 A. Because I did not collect inpatient 15 cases. 16 Q. Have you submitted an application to 17 take the boards at any time, the oral part, 18 between '97 and 2008? 19 A. No. 20 Q. At any time during your career since 21 coming to the U.S., which would be at least at 22 Barberton Citizens Hospital in 1971 up until the 23 present date, have your privileges at any 24 hospital been suspended, revoked, or called into 25 question? 0018 1 MR. RIEMENSCHNEIDER: Objection. 2 You can go ahead and answer. 3 Q. Let me explain. Mr. Riemenschneider 4 from time to time will object to a question. 5 This may be the only time he ever objects, he 6 may object more often, but unless he instructs 7 you otherwise, you have to answer the question. 8 If you forget what the question is, I can have 9 the court reporter read it back. 10 His objection is just for the court 11 reporter to take down, but you still need to 12 answer the question as to whether your 13 privileges have ever been suspended. 14 A. No. 15 Q. Have you ever applied for privileges 16 at a hospital and been denied? 17 MR. RIEMENSCHNEIDER: Objection. Go 18 ahead. 19 A. No. 20 Q. Have you ever been the subject of 21 any disciplinary action before any state medical 22 boards? 23 MR. RIEMENSCHNEIDER: Objection. Go 24 ahead. 25 A. No. 0019 1 Q. You are licensed to practice 2 medicine in the state of Ohio; is that correct? 3 A. Yes. 4 Q. Are you licensed to practice 5 medicine in any other states? 6 A. No. 7 Q. Working at Ohio Permanente, was 8 there a requirement that you be board certified? 9 A. No. 10 Q. Are you an American citizen? 11 A. Yes. 12 Q. You became an American citizen when? 13 A. 1976 or '77. I'm not sure of the 14 year. 15 Q. Do you have any other family members 16 that are in the medical field? 17 A. Yes. 18 Q. Who is that? 19 A. My husband. 20 Q. Your husband is, his first name? 21 A. George. 22 Q. The same last name? 23 A. Mathew, M-A-T-H-E-W. 24 Q. What is his area of specialty? 25 A. Family practice. 0020 1 Q. Does Dr. Mathew practice here in the 2 Cleveland area? 3 A. Yes. 4 Q. Who is he affiliated with? 5 A. St. John West Shore Hospital. 6 Q. Do you have any other family members 7 that are in the medical field? 8 A. My daughter. 9 MR. RIEMENSCHNEIDER: Just note an 10 objection as to the relevance of this 11 questioning, but go ahead. 12 Q. What does your daughter do? 13 A. She's a resident in psychiatry. 14 Q. At what hospital? 15 A. Cleveland Clinic. 16 Q. What year is she in residency? 17 A. Second year. 18 Q. Doctor, back in 2005 when you were 19 doing 20 to 24 hours a week for Ohio Permanente 20 Medical Group, you were spending time at the 21 Cleveland Heights, Parma, and Fairlawn office? 22 A. Yes. I have also gone to other 23 facilities. I don't remember the dates. 24 Q. That's okay. I'm just trying to get 25 a general overview. But you didn't go day in 0021 1 and day out to the same office? It would depend 2 upon your patient assignments as to which office 3 you would go to? 4 A. It would depend upon the schedule 5 the chief made. Dr. Binstock was the chief or 6 maybe it was Dr. Shuffer. I'm not sure. They 7 made the schedule two months in advance. 8 Q. In terms of your clinical practice 9 back in 2005, what percentage of your practice 10 was GYN and what percentage was obstetrics? 11 A. 90 percent would be GYN. 12 Q. In 2005 what hospitals did you have 13 privileges at? 14 A. I did not have inpatient privileges. 15 Q. If you needed to admit a patient 16 that was under your care, what steps would you 17 need to take to make sure that that patient was 18 appropriately admitted? 19 A. The Ob/Gyn department is a team of 20 eight to ten physicians, and I would take the 21 patient to another one who has got admitting 22 privileges. 23 Q. When is the last time that you had 24 admitting privileges at a hospital? 25 A. When I was working at Booth 0022 1 Memorial. 2 Q. Since that time when you left in 3 '79, I think, from Booth -- 4 A. '77. 5 Q. -- correct me if I'm wrong, you have 6 not applied for privileges at any hospital; is 7 that correct? 8 A. Because I was only practicing in the 9 office. 10 Q. I'm not suggesting that that's not 11 appropriate. I just want to make sure that 12 between '77 and the present date that -- 13 A. I would apply for privileges, but it 14 was for office. So I was privileged in Lakewood 15 and Kaiser. I had all privileges. Every year 16 they renew it, so there are privileges. 17 Q. So you had admitting privileges at 18 Lakewood Hospital? 19 A. In consultation with another doctor, 20 yes. 21 Q. So you wouldn't be listed as the 22 admitting physician at Lakewood Hospital if you 23 had a patient that needed to be admitted? 24 A. Right. 25 Q. At any time since 1977, other than 0023 1 having consultative privileges have you had 2 admitting privileges to any hospital? 3 A. No. 4 Q. Have you written anything or 5 published anything in peer-reviewed journals in 6 the medical field? 7 A. No. 8 Q. Are you a member of any professional 9 organizations within the area of obstetrics and 10 gynecology? 11 A. Not at the present. 12 Q. Have you in the past been a member 13 of any professional associations? 14 A. Yes. 15 Q. Which ones? 16 A. The Cleveland Ob/Gyn Society and the 17 American College of Ob/Gyn. 18 Q. Tell me, Doctor, when was the last 19 time that you were a member of ACOG? 20 A. Several years ago. I don't 21 remember. 22 Q. Would that be in the 2000s or before 23 that? 24 A. Before that because there is an 25 annual membership fee. 0024 1 Q. The reason that you no longer are a 2 member of the American College, is it simply 3 because you didn't pay the renewal? 4 A. The renewal fees. 5 Q. Cleveland Ob/Gyn, when were you last 6 a member of that? 7 A. Several years ago. 8 Q. Would several years be consistent 9 with when you stopped being a member of ACOG, or 10 would it have been earlier or later? 11 A. Later. When I was with Metro until 12 the late '80s. 13 Q. When you were at Metro, your 14 practice was clinic based? 15 A. Clinic based. 16 Q. So that if one of your patients 17 needed to be admitted, you would call upon one 18 of your colleagues? 19 A. The attending doctors at Metro. 20 Q. How do you keep current with 21 evidence based medicine as it relates to 22 gynecology or obstetrics? 23 A. I go for conferences, I listen to 24 Audio-Digest Ob/Gyn tapes, and I read journals. 25 Q. Which journals do you read? 0025 1 A. I read Contemporary Ob/Gyn Journal, 2 Modern Ob/Gyn. 3 Q. Contemporary Ob/Gyn? 4 A. Yes. 5 Q. And Modern Ob/Gyn? 6 A. Modern Ob/Gyn. 7 Q. Any others? 8 A. And there is the brown journal and 9 the gray journal. 10 Q. Are there any other journals that 11 you read to keep current on evidence based 12 medicine, peer-reviewed evidence based medicine, 13 in the area of gynecology or obstetrics? 14 A. Just the Audio-Digest tapes. 15 Q. You mentioned to me when we started 16 the deposition that this was the first time that 17 you've had to give testimony in a deposition. 18 Have you ever testified in any proceeding in a 19 courtroom or any other matter where you had to 20 give sworn testimony? 21 MR. RIEMENSCHNEIDER: Objection. Go 22 ahead. 23 A. I think maybe during my residency 24 there was an alleged rape case. I don't 25 remember very well. 0026 1 Q. I take it that you were called as a 2 witness as it relates to the patient? 3 A. The alleged rape, yeah. 4 Q. Was that the only time prior to 5 today? 6 A. Yes. 7 Q. That you have been called upon to 8 give sworn testimony? 9 A. Yes. 10 Q. Have you ever been named as a party 11 to a lawsuit where you were either the one that 12 was bringing a claim through legal documents or 13 the one that had a claim being asserted against 14 you? 15 MR. RIEMENSCHNEIDER: Objection. 16 A. No. 17 Q. I'm sorry. Was your answer still 18 no? It came about the same time as 19 Mr. Riemenschneider's objection. 20 MR. RIEMENSCHNEIDER: I'm not quick 21 enough. I better get some coffee. 22 Q. Your answer was no? 23 THE WITNESS: I can say? 24 MR. RIEMENSCHNEIDER: Yes. 25 A. No. 0027 1 Q. Thank you. In order to prepare 2 yourself for today, I don't want you to tell me 3 anything that you've talked with your attorney 4 about, and that applies throughout this 5 deposition. Do you understand that? What you 6 talked with him about is confidential. You 7 appreciate that? 8 A. Yes. 9 Q. Outside of any meetings with 10 Mr. Riemenschneider or any representatives, any 11 risk management people or any claims people 12 through Kaiser, have you talked with any 13 physicians or nurse practitioners that were 14 involved in any of Lillian Dailey's care at any 15 time up to today about Lillian Dailey? 16 A. No. 17 Q. Have you talked to any colleagues 18 about your care in terms of the information that 19 you had available to you in May of 2005 and then 20 your visits in May and June? Have you talked to 21 any of your colleagues about your care to elicit 22 an opinion from them about what you did or did 23 not do? 24 A. No. 25 Q. Have you reviewed any medical 0028 1 literature in any of the journals or any other 2 resource that you consider to be reasonably 3 reliable in preparing for today's deposition? 4 A. No. 5 Q. I take it Contemporary Ob/Gyn, 6 Modern Ob/Gyn, and the brown and the gray 7 journals are journals that you regularly read; 8 true? 9 A. Yes. 10 Q. In addition to the audiotapes, they 11 are ones that you rely upon to keep current in 12 regard to advances in gynecology and obstetrics. 13 Is that a fair statement? 14 MR. RIEMENSCHNEIDER: Objection. Go 15 ahead. 16 A. Yes. 17 Q. These are peer-reviewed journals; 18 correct? 19 A. Yes. 20 Q. These peer-reviewed journals are 21 journals that you consider to be reasonably 22 reliable and authoritative; is that correct? 23 MR. RIEMENSCHNEIDER: Objection. Go 24 ahead. 25 A. Also, live conferences. I attend 0029 1 live conferences. 2 Q. In addition to the audiotapes and 3 the live conferences, let's put them off to the 4 side, these journals that are peer-reviewed that 5 you review, do you consider them to be 6 reasonably reliable resources to keep you 7 current with regard to evidence based medicine 8 in obstetrics and gynecology? 9 MR. RIEMENSCHNEIDER: Objection. Go 10 ahead. 11 A. Yes. 12 Q. By your answer before, obviously the 13 live conferences and the audiotapes you also use 14 as a resource to keep current; correct? 15 A. Yes. 16 Q. Fair enough. Do you remember 17 Lillian Dailey as a patient? 18 A. Only through the notes. 19 Q. Are you able by looking at the notes 20 to recreate in your mind an image of her such 21 that you can say I remember seeing her separate 22 and apart from what you have noted in the 23 record? 24 A. No. 25 Q. The reason I ask that is that 0030 1 sometimes when I talk to doctors they will tell 2 me, Mr. Mishkind, I absolutely remember the 3 patient, and then I will ask them what is it 4 that you remember about the patient, and 5 sometimes doctors will tell me I remember 6 certain things that I did or that I said to the 7 patient that I didn't mark down because I can't 8 mark down everything, and I give them an 9 opportunity to tell me what it is that they said 10 or what it is that the patient said or what they 11 did. So that's why I asked you whether or not 12 you recall the patient. 13 When you look at your notes, and 14 we're going to talk in detail about them 15 momentarily, but when you look at your notes, is 16 there anything that you are able to recreate in 17 your mind that you can say that even though I 18 didn't mark down a particular diagnosis or a 19 particular recommendation or a particular test, 20 I know that I told this patient to do this or I 21 know that I ordered this? 22 Is there anything along those lines 23 that you can remember independent of the record? 24 A. There are certain things I tell the 25 patient always. 0031 1 Q. Okay. That would, therefore, in all 2 likelihood apply to what you would have told 3 Lillian Dailey. Is that a fair statement? 4 A. Yes. 5 Q. We'll talk about those things when 6 we talk about the May and the June visit; okay? 7 A. Yes. 8 Q. You saw Lillian twice according to 9 the records? 10 A. According to the notes. 11 Q. Please, feel free to refer to the 12 notes at any time throughout the deposition. 13 Don't feel as if you have to recite your answers 14 based upon your recall. They are sitting there, 15 and Mr. Riemenschneider will allow you to grab 16 them. 17 MR. RIEMENSCHNEIDER: Wait until he 18 gets there and you can. 19 Q. At which office or offices did you 20 see Lillian? 21 A. Cleveland Heights. 22 Q. How many Ob/Gyns were part of the 23 Cleveland Heights office back in 2005? 24 MR. RIEMENSCHNEIDER: Objection. Go 25 ahead if you know. 0032 1 A. I remember three physicians and two 2 nurse practitioners. I mean, they were all not 3 there all the time. 4 MR. RIEMENSCHNEIDER: He just asked 5 you who were the other physicians working. Just 6 listen to his question. 7 THE WITNESS: Okay. 8 Q. The other physicians, would one of 9 them have been Dr. Green? 10 A. Yes. 11 Q. That would be Dr. Albert Green? 12 A. Albert Green. 13 Q. Would one of the other physicians 14 have been Dr. Shuffer? 15 A. Phil Shuffer. 16 Q. Were those the two you were thinking 17 of? 18 A. There was one more. 19 Q. Now, Lillian ultimately had a 20 hysterectomy performed, and that was performed 21 at the Cleveland Clinic; is that correct? 22 MR. RIEMENSCHNEIDER: Objection. I 23 mean, anything she knows after her -- 24 A. I did not know -- 25 MR. RIEMENSCHNEIDER: Hold on a 0033 1 second. You can go ahead and answer. 2 A. I did not know that until -- 3 MR. RIEMENSCHNEIDER: Okay. She 4 answered the question. 5 Q. You did not know that until when? 6 A. Until I was called. 7 Q. For purposes of this deposition? 8 A. Yes. 9 Q. After you saw Lillian in June of 10 2005, did you have any further involvement in 11 her care after that point in time? 12 A. No. 13 Q. In preparing for the deposition 14 today, you I presume were provided with a copy 15 to review of the medical records from Ohio 16 Permanente. Is that a fair statement? 17 A. Yes. 18 Q. You're obviously aware that Lillian 19 ultimately passed away; correct? 20 MR. MISHKIND: I'm not asking her 21 the source. 22 MR. RIEMENSCHNEIDER: Go ahead. 23 Q. You're obviously aware that she 24 died; correct? 25 A. Through (indicating). 0034 1 Q. I'm not asking you the source. 2 You're aware that she died; correct? 3 A. Yes. 4 Q. I take it until you were asked to 5 provide deposition testimony -- and to set the 6 record straight, I'm the one that asked you or 7 I'm the one that invited you here -- but until 8 the request for your deposition was made, is it 9 a fair statement that you were not aware 10 personally of what the medical treatment had 11 been for Lillian's gynecological issue, her 12 uterine bleeding issue. Is that a fair 13 statement? 14 MR. RIEMENSCHNEIDER: Just to be 15 clear, after she last saw her? 16 MR. MISHKIND: Right. 17 MR. RIEMENSCHNEIDER: Just so we're 18 clear, those are the records that were provided 19 to her. So I just want the record to be clear 20 on that. I think your question was you were 21 provided the OPMG records, and she has only 22 reviewed her care and treatment. 23 Q. You've only looked at the records 24 for May and June of 2005? 25 A. Yes. 0035 1 Q. Now, Kaiser has a way of recording 2 events in terms of progress notes along the left 3 margin that gives you information relative to 4 the patient's ongoing diagnostic criteria; 5 correct? 6 A. Yes. 7 Q. So certainly you were aware when you 8 saw Lillian back in May, you were aware of the 9 fact that she had been seen by other doctors 10 within the Kaiser system for various health 11 related problems; correct? 12 A. Yes. 13 Q. I'm going to conclude, correct me if 14 I'm wrong, that in May of 2005 you would have 15 had access to, either on the computer or printed 16 record, you would have had access to test 17 results, ultrasound results, things that would 18 be germane or relevant to your involvement in 19 examining and treating the patient. Is that a 20 fair statement? 21 A. Yes. 22 Q. From time to time at Kaiser, when 23 you would see a patient that had been seen by 24 someone else, would it be common for you to 25 access the information on the computer to see 0036 1 what a previous ultrasound showed or what a 2 previous test result on a patient, whether they 3 are premenopausal, perimenopausal, or 4 postmenopausal, what their signs and symptoms 5 had been before you have your encounter with 6 them? 7 A. Yes. 8 Q. I want to ask you to define a few 9 terms for me. 10 A. Okay. 11 Q. Uterine leiomyoma, what is that? 12 A. It's commonly called fibroid uterus, 13 and it's a benign growth of the uterine muscle. 14 Q. Is it more or less common in 15 patients who are perimenopausal? 16 A. It's common in the 40s. 17 Q. Does it become more common as 18 patients age and go through menopause? 19 A. It's the same. 20 Q. It is the same? 21 A. (Indicating.) 22 Q. What is uterine sarcoma? 23 A. It's a malignant tumor of the 24 uterus. 25 Q. Have you in your experience as a 0037 1 gynecologist had occasion to diagnose a patient 2 or at least to raise an index of concern, either 3 one, either actually diagnosing or raising 4 within the differential that the patient might 5 have a uterine sarcoma? 6 MR. RIEMENSCHNEIDER: Just note an 7 objection to the characterization of the 8 question. I think it's actually asking two 9 questions. 10 MR. MISHKIND: That's fine. I'll 11 rephrase. 12 MR. RIEMENSCHNEIDER: It could be 13 mischaracterized. 14 MR. MISHKIND: Let me make it 15 easier. 16 Q. Have you personally arrived at the 17 diagnosis of uterine sarcoma in any patient? 18 A. During my residency training. 19 Q. That would be back at -- 20 A. In the '70s. 21 Q. I'm trying to remember the hospital 22 that you said. At St. Luke's? 23 A. St. Luke's Hospital. 24 Q. Since that time you personally have 25 not had occasion to diagnose a patient with 0038 1 uterine sarcoma? 2 A. No. 3 Q. Do you remember what the clinical 4 manifestations were in that patient that had 5 uterine sarcoma, how it is that you arrived at 6 the diagnosis? 7 MR. RIEMENSCHNEIDER: Objection. 8 You can answer if you can recall that, but go 9 ahead. 10 A. Rapid growth and pain. 11 Q. Rapid growth of what? 12 A. Of the uterus. 13 Q. Is there a particular area of the 14 uterus that you look at in terms of the growth? 15 A. No particular area. 16 Q. As best you understand, are there 17 certain criteria that you apply or did apply in 18 this particular case as it relates to the growth 19 of the uterus to arrive at the diagnosis of 20 uterine sarcoma? 21 A. I don't understand. 22 Q. Good. Good. I'm glad my 23 instructions worked. You said rapid growth. 24 A. Rapid growth. 25 Q. And? 0039 1 A. Pain. 2 Q. Let's stay with the rapid growth. 3 Do you use two different points to compare the 4 growth of the uterus to define whether the 5 growth is rapid or not rapid? 6 A. The time. 7 Q. The time period? 8 A. Yes. 9 Q. How much growth must there be for 10 you to have an index of suspicion that the 11 patient has uterine sarcoma between one visit 12 and the next visit? 13 A. I can only give an example. 14 Q. Go ahead. 15 A. If at one visit she was like 12 week 16 size and another visit she was like 16, 17 week 17 size, that is a rapid growth. 18 Q. Are there any practice guidelines 19 that you have used throughout your practice to 20 follow in determining whether or not a patient's 21 findings are consistent with a uterine sarcoma? 22 A. Currently? 23 Q. Well, over the course of your 24 practice, have there been any guidelines that 25 you've used to follow in terms of criteria for 0040 1 evaluating a patient's symptoms to determine 2 whether or not they fit within the guidelines or 3 the criteria for uterine sarcoma? 4 A. I use ultrasound often. 5 Q. Are there any printed guidelines 6 that you follow, either through ACOG or perhaps 7 guidelines or protocols that Kaiser had that you 8 would follow in terms of a patient has certain 9 symptoms, and based upon these symptoms, you 10 should consider the following diagnoses? 11 A. So clinical symptoms, pelvic exam, 12 ultrasound, blood work. 13 Q. Those criteria or guidelines, where 14 are they written? Are they guidelines that 15 you've been taught through the American College 16 of Obstetrics and Gynecology? 17 A. It's continuing through my training 18 and education. 19 Q. At Kaiser, at Ohio Permanente, did 20 you have any policies and procedures that you 21 could follow, any algorithms, if you will, in 22 terms of if a patient has the following 23 findings, then you should consider the 24 possibility that the patient has a uterine 25 sarcoma or a uterine cancer? 0041 1 A. I think for uterine cancer they have 2 guidelines. 3 Q. How does uterine sarcoma and uterine 4 cancer differ? 5 A. Well, uterine cancer is the most 6 common one. Uterine sarcoma is extremely rare. 7 Q. Are the physical manifestations that 8 you see in a patient different or similar, the 9 presenting symptoms, in uterine cancer as 10 compared to uterine sarcoma? 11 A. I don't know how to answer that. 12 It's a lot of clinical and lab and ultrasound, 13 and there's a whole -- there's no clearcut 14 answer to that. 15 Q. Are a number of the clinical signs 16 and symptoms that you see in a patient that has 17 a diagnosis of uterine cancer also similar in a 18 patient who has a diagnosis of uterine sarcoma? 19 A. Some of the symptoms. 20 Q. Are there any highly distinguishable 21 symptoms that you expect to see in a patient 22 that has a uterine sarcoma as opposed to a 23 uterine cancer? 24 A. Rapid growth and pain is sarcoma. 25 Q. So would that be sort of the gold 0042 1 standard symptom or gold standard finding that 2 you would expect to see in a uterine sarcoma 3 that would distinguish it from other uterine 4 cancers? 5 A. It cannot be clearly distinguished, 6 but it is two of the important signs, rapid 7 growth and pain. 8 Q. What is, and I may be mispronouncing 9 it because I always do, anovulatory uterine 10 bleeding? 11 A. Anovulatory bleeding. 12 Q. What is that? 13 A. During the perimenopausal years, the 14 ovulation is not regular, so there is no 15 progesterone hormone. There is an imbalance of 16 the hormones, and they bleed irregular because 17 of the imbalance. 18 Q. Can one conclude in a patient -- you 19 used the term perimenopausal. 20 A. Perimenopausal. 21 Q. Can one conclude in a patient that 22 fits the criteria for perimenopausal that the 23 abnormal uterine bleeding is benign? 24 A. Most of the time it is benign. 25 Q. Can we agree that it would not be 0043 1 appropriate to assume that it is always benign? 2 A. We always investigate. 3 Q. Because there is always that chance 4 that it may be a malignancy; true? 5 A. True. 6 Q. So you have to do certain tests to 7 go down a treatment algorithm to determine 8 whether or not it's benign and can be treated 9 one way or whether or not it has more 10 characteristics of something that could be 11 malignant. Is that a fair statement? 12 A. Yes. 13 Q. What factors do you routinely 14 consider in evaluating the treatment options for 15 a patient who is perimenopausal who has abnormal 16 uterine bleeding? 17 A. What treatment options? 18 Q. What factors do you routinely 19 consider in evaluating the treatment options? 20 A. The age, irregular bleeding, that's 21 just two factors but is enough to start 22 investigating. 23 Q. Define for me the term that you've 24 used a couple times, perimenopausal. How do you 25 arrive at that term? 0044 1 A. These are the few years which 2 precede menopause. 3 Q. What is your definition of 4 menopause? 5 A. When there are no menstrual periods 6 for one year. 7 Q. What is your definition of 8 postmenopausal? 9 A. It's the state after no periods for 10 one year. 11 Q. So that is sort of the end point of 12 menopause? 13 A. Right. So it's postmenopausal. 14 Q. So in order to meet the criteria for 15 being postmenopausal, there has to be a one year 16 period with no period? 17 A. And also some more criteria is 18 there. 19 Q. What are the other criteria? 20 A. There's a blood test. 21 Q. Tell me what the name of that blood 22 test is. 23 A. FSH. It's very elevated. 24 Q. Does a patient have to have an 25 abnormal FSH and one year without a period to be 0045 1 by definition postmenopausal? 2 A. Yes. 3 Q. Are there any other criteria? 4 A. Age. 5 Q. What is the age criteria? 6 A. The average age of menopause is 51 7 to 52, but there is a range, a normal range. 8 Q. Plus or minus? 9 A. No. It's 45 to 55. 10 Q. So age, 51 to 52, with the range of 11 45 to 55? 12 A. Is normal. The middle point is 51 13 to 52. 14 Q. An abnormal FSH? 15 A. Not abnormal; elevated. 16 Q. An elevated FSH and one year without 17 a period; is that correct? 18 A. Correct. 19 Q. Those criteria then would cause you 20 to define the patient as being postmenopausal? 21 A. Yes. 22 Q. I believe in the records you used a 23 reference to perimenopausal? 24 A. Yes. 25 Q. For Lillian? 0046 1 A. Yes. 2 Q. Tell me what criteria you were 3 applying to arrive at a diagnosis of or 4 classification of her being perimenopausal as 5 opposed to postmenopausal. 6 A. Well, her last period was in April 7 2004, and then she had another period in 8 December 2004, so there was seven months without 9 periods, so she really did not have that one 10 year. That is one. So there was only a seven 11 month skipping the period. 12 Q. Before we go on to the next 13 category, can I ask you a question about that 14 one just so I don't have to remember and go 15 back? 16 A. Okay. 17 Q. What is it that you were relying 18 upon when you saw her in May of 2005 to 19 determine that she had a period as opposed to 20 abnormal uterine bleeding in December of 2004? 21 A. Because she said her last period was 22 in December. She told the nurse, and she told 23 me, too. 24 Q. Did you inquire further by way of 25 any records to determine whether or not she had 0047 1 actually had a period as opposed to abnormal 2 uterine bleeding? 3 A. It's only what I have written here 4 because the last period column is written there 5 as 12-2004. 6 Q. In your experience as a 7 gynecologist, when patients are perimenopausal, 8 do you experience commonly some confusion on the 9 patient's part as to whether or not what they 10 are experiencing is an actual period as opposed 11 to what is in fact abnormal uterine spotting or 12 abnormal bleeding? 13 A. I don't know how to answer. I don't 14 understand the question. 15 Q. Do patients sometimes, and this may 16 seem illogical, but do patients sometimes not 17 know whether or not they are actually having a 18 period as opposed to some abnormal uterine 19 bleeding or some abnormal uterine spotting? 20 MR. RIEMENSCHNEIDER: Objection. Go 21 ahead. 22 A. Patients complain if they bleed more 23 than one week. So she continued to bleed. If 24 she had just stopped, she would not have 25 complained. But if they bleed more than a week, 0048 1 then they will say I had a period in December, 2 and now I am having it on and off all this time. 3 Q. So your understanding is that in 4 December of 2004 she had what would be 5 classified as a period; correct? 6 A. Yes. 7 Q. If she didn't have a period but had 8 abnormal uterine bleeding in December of 2004, 9 would your classification of her being 10 perimenopausal as opposed to menopausal have 11 been different? 12 MR. RIEMENSCHNEIDER: Objection. 13 A. She is still perimenopausal. 14 Q. You said she had a period in April 15 of '04; correct? 16 A. The previous one, yes. 17 Q. If what she had in December of '04 18 was abnormal uterine bleeding and not a period 19 and you saw her in May of '05, would she be -- 20 A. Well -- 21 MR. RIEMENSCHNEIDER: Hold on. 22 Finish your question. It's already been asked 23 and answered, but go ahead. 24 Q. Would she have been postmenopausal 25 as opposed to perimenopausal? 0049 1 A. She is not postmenopausal. 2 Q. Even with her last period having 3 been in April of '04? If in fact her last 4 period was in April of '04? 5 A. Yes. 6 Q. Why? 7 A. She only skipped seven months. 8 Q. You're defining what occurred in 9 December of '04 as a period? 10 A. Yes. 11 Q. If she went from April of '04 to May 12 of '05 without a period, would she be 13 menopausal? 14 A. Yes. 15 Q. What other characteristics did 16 Lillian have that in your opinion put her at 17 being perimenopausal as opposed to 18 postmenopausal? 19 A. Because the average age of menopause 20 is between 45 and 55 and is still considered 21 normal. So she was 55, and the normal range can 22 vary from 45 to 55. So she was not 60. She was 23 still 55 and within that range. 24 Q. What about her FSH? 25 A. I don't know whether anyone had done 0050 1 an FSH. Usually they don't do FSH because we 2 know this is the perimenopausal. The FSH is -- 3 MR. RIEMENSCHNEIDER: Wait. Answer 4 his question. 5 Q. You were starting to say the FSH is. 6 Under what circumstances do you do an FSH? 7 A. If somebody did not have a period 8 for one year below 40, we would do an FSH. 9 Q. What is an endometrial biopsy? 10 A. It's a procedure where we pass a 11 small suction pipelle into the uterine cavity 12 and suction the endometrium out. 13 Q. You did an office based endometrial 14 biopsy on Lillian; correct? 15 A. Yes. 16 Q. That was in May of 2005? 17 A. Yes. 18 Q. The reason you did an office based 19 endometrial biopsy was for what? 20 A. Of her complaint of bleeding on and 21 off for four months and her age. 22 Q. What was within your differential 23 when you did the endometrial biopsy? What 24 things did you have in your mind that caused you 25 to do the endometrial biopsy? 0051 1 A. I wanted to rule out uterine cancer, 2 endometrial. 3 Q. Did you have any other tests 4 available to you that were considered gold 5 standard tests in May of 2005 to use to rule out 6 or to rule in uterine cancer? Aside from the 7 endometrial biopsy, any other tests? 8 A. Ultrasound. 9 Q. Any other tests? Let me clarify 10 that. Were there any other tests that you could 11 have used that were available to you that you 12 for whatever reason chose not to order or to 13 perform? 14 A. No. 15 Q. There is an incidence, is there not, 16 of false negatives in endometrial biopsies? 17 A. Very rare. 18 Q. I presume as a gynecologist it's 19 important for you to recognize the frequency of 20 false negatives in office based endometrial 21 biopsies; true? 22 A. Rare, yes. 23 Q. But it's important for you in order 24 to provide reasonable care to know how rare 25 false negatives are; correct? 0052 1 A. Yes. 2 Q. What was your understanding back in 3 2005 as to the percentage frequency that 4 endometrial biopsies provided a false negative 5 result? 6 A. The percentage? 7 Q. Yes. 8 A. About 2 to 3 percent. 9 Q. Are you able to cite me to any 10 literature that you've read recently or that you 11 recall from the past that would confirm such 12 percentages, that office based endometrial 13 biopsies have a false negative in the 2 to 3 14 percent range? 15 A. I have read it, but I don't remember 16 which journal or which Audio-Digest. 17 Q. Would you expect that that 18 percentage would be written in some of the 19 peer-reviewed journals that you consider to be 20 reasonably reliable that we've talked about? 21 A. Yes. 22 MR. RIEMENSCHNEIDER: Just note an 23 objection. 24 Q. Doctor, can we agree that uterine 25 fibroids decrease in size in women that are 0053 1 postmenopausal because they are estrogen 2 dependent tumors? 3 A. In postmenopausal. 4 Q. Do uterine fibroids begin to 5 decrease in size in patients who are 6 perimenopausal? 7 A. Not in perimenopausal. 8 Q. Lillian was what ethnicity? 9 A. I don't know. 10 Q. Do you know what the risk factors 11 are for the development of endometrial cancers 12 in terms of ethnicity, for example, whether 13 African-Americans are more or less common to 14 develop endometrial cancers than Caucasians or 15 Asians? 16 A. You said endometrial cancers? 17 Q. Endometrial cancers, right. 18 A. Endometrial cancer is any ethnicity. 19 Q. Not more common in -- 20 A. Endometrial? 21 Q. Yes. 22 A. Not any more common. 23 Q. What about uterine cancers in 24 general, are they more or less common in any 25 ethnicity? 0054 1 A. Any ethnicity. 2 Q. Not more common in one versus the 3 other? 4 A. No. 5 Q. What about patients who are 6 diabetics, are they more or less common in those 7 patients? 8 A. Diabetes definitely is a risk 9 factor. 10 Q. For endometrial? 11 A. Endometrial cancer. 12 Q. What about obesity, a high BMI, are 13 those patients at higher risk for endometrial or 14 uterine cancers? 15 A. Yes. 16 Q. Can you think of any other factors 17 that increase the risk factor for a patient 18 developing uterine cancers besides those we just 19 talked about? 20 A. Hypertension. 21 Q. What risk factors did Lillian have 22 for uterine cancer? 23 A. Obesity, hypertension, and it looks 24 like diabetes. I'm not sure about that. 25 Q. Is age also -- 0055 1 A. Age. 2 Q. -- a risk factor? 3 A. Definitely age. 4 Q. So if she was diabetic, she was 5 African-American and -- I'm sorry. 6 African-American, you don't consider that to be 7 a risk factor? 8 A. Not for endometrial. You didn't ask 9 for sarcoma. You said endometrial. 10 Q. For uterine sarcomas are 11 African-Americans more at risk? 12 A. Yes. Slightly, yes. 13 Q. Are African-Americans slightly more 14 at risk for uterine sarcomas when they also are 15 obese? 16 A. Yes. 17 Q. Are African-Americans that are obese 18 at increased risk for uterine sarcomas when they 19 also are diabetic? 20 A. Yes. 21 Q. Are African-American, obese, 22 diabetic women who also are in the age range of 23 Lillian Dailey at an increased risk of uterine 24 sarcomas than other patients? 25 A. They are all risk factors, but I 0056 1 don't know how to answer that. 2 Q. You've just answered it. 3 A. They are all risk factors. 4 Q. Are these risk factors in your 5 experience and based upon your knowledge, 6 training, and experience cumulative in terms of 7 the consideration of uterine sarcoma? 8 A. Yes. 9 Q. I asked you before, but I want to be 10 clear -- are you doing okay, or do you want to 11 take a break? 12 MR. RIEMENSCHNEIDER: I need to take 13 break. 14 MR. MISHKIND: We'll take about a 15 five-minute break; okay? 16 THE WITNESS: Okay. 17 (Brief recess.) 18 Q. In terms of practice guidelines that 19 you followed in working up a patient that had 20 abnormal uterine bleeding, I think, and this 21 sort of falls in the category of I'm asking you 22 to correct me or guide me appropriately, I think 23 you told me that there were some practice 24 guidelines that you had available to you back in 25 2005 through Kaiser Permanente. Did I hear that 0057 1 correctly or incorrectly? 2 A. OPMG. 3 Q. Ohio Permanente Medical Group. Tell 4 me what those practice guidelines were called. 5 It might be pretty obvious. 6 A. What were they called? 7 Q. What was the title of the practice 8 guidelines? 9 A. Postmenopausal bleeding. 10 Q. Did those practice guidelines give 11 you certain algorithms in terms of what to look 12 for and what steps to take in response to 13 certain symptoms? 14 A. I don't know the exact titles 15 because they are all in the office, so I don't 16 know what those algorithms are. 17 Q. I wouldn't expect that you'd have 18 this memorized. 19 A. I don't know because it's in a bound 20 book. It's there. Unless I refer to it, I 21 won't be able to tell what the titles are. What 22 algorithms are there, I don't know. 23 Q. Suffice it to say back in 2005 there 24 were practice guidelines or protocols that 25 touched on abnormal uterine bleeding and certain 0058 1 things to do in response to patients that 2 present with abnormal uterine bleeding. Is that 3 a fair statement? 4 MR. RIEMENSCHNEIDER: Objection. Go 5 ahead. 6 A. I cannot say for sure unless I see 7 the book. 8 Q. Was the book called policies and 9 procedures for GYN patients? 10 A. No. It was called guidelines -- 11 MR. RIEMENSCHNEIDER: Hold it. 12 (Brief recess.) 13 (Record read.) 14 A. I don't know what the title is. 15 Q. It's a -- 16 A. It's a bound like ring or 17 three-ring. 18 Q. If it's like what I've seen before, 19 certain pages would be revised from time to 20 time? 21 A. Yes. 22 Q. Pages added and pages deleted? 23 A. Exactly. 24 Q. This was something that you would 25 have had available to you as necessary in 0059 1 approaching the clinical management of your 2 patients; true? 3 A. It's available in every office. 4 Q. Sure. 5 MR. MISHKIND: I'll follow up with a 6 request. We may need to get the index. 7 MR. RIEMENSCHNEIDER: Assuming it's 8 there, we'll go with the flow. 9 MR. MISHKIND: I'll follow up with a 10 letter, but I think the easiest thing to do is 11 to get an index of what the contents are so I 12 don't make just a broad request. I'll send you 13 a letter. 14 MR. RIEMENSCHNEIDER: All right. 15 Q. Would you agree with this statement, 16 that abnormal uterine bleeding in a woman that 17 is perimenopausal must be considered a 18 malignancy until proven otherwise? 19 A. I cannot give a yes or no answer to 20 that. 21 Q. Remember, I told you if you couldn't 22 give a yes or no, I'm going to let you qualify 23 and explain to me why you can't give a yes or 24 no. So go ahead and tell me why you can't say 25 either yes or no to that. Do you want me to 0060 1 give you the statement again, or do you recall 2 it? 3 A. Yeah. Could you? 4 Q. Whether you would agree that 5 abnormal uterine bleeding in a woman that is 6 perimenopausal must be considered a malignancy 7 until proven otherwise. A moment ago you said I 8 can't say yes or no to that, and I'm inviting 9 you to tell me whether there's some answer in 10 between yes or no and explain your answer. 11 A. Well, we have to rule out 12 malignancies. It's always there as one of the 13 differential diagnoses, but most of the time 14 there is no malignancy. When we do the 15 endometrial biopsy or D&C, there is no 16 malignancy. So we have to rule it out, but that 17 doesn't mean every person who bleeds is having a 18 malignancy. 19 Q. Remember, I told you I'd let you 20 finish. That's why I'm pausing, to make sure 21 that you're done. 22 We can agree that not every woman 23 that has abnormal bleeding has a malignancy; 24 true? 25 A. True. 0061 1 Q. But flipping that over, when a woman 2 presents with abnormal uterine bleeding and they 3 are perimenopausal, malignancy needs to be ruled 4 out. Is that a fair statement? 5 A. Yes. 6 Q. So tests need to be done when a 7 patient presents with abnormal uterine bleeding 8 first and foremost to make sure that the patient 9 doesn't have a malignancy; correct? 10 A. Correct. 11 Q. Once you've done the necessary tests 12 to rule out malignancy, then you can treat the 13 benign nature of the abnormal uterine bleeding 14 in appropriate manners; correct? 15 A. Correct. 16 Q. Now, you mentioned a moment ago 17 endometrial biopsy and you also mentioned D&C, 18 and because I'm a guy, even though I might know 19 what a D&C is, tell me first what the definition 20 of a D&C is and how that is a tool available to 21 you as a gynecologist to rule in or to rule out 22 malignancies in patients who have abnormal 23 uterine bleeding that are perimenopausal. 24 A. D&C is dilatation and curettage and 25 is usually done under general anesthesia or 0062 1 local paracervical block. It needs anesthesia. 2 Usually there is also hysteroscopic looking into 3 the uterine cavity, but that is the second step. 4 Q. Correct me if I'm wrong, in terms of 5 a patient who has abnormal uterine bleeding that 6 is perimenopausal, what you told me so far is 7 the first tool that you use is an endometrial 8 biopsy? 9 A. Correct. 10 Q. If that endometrial biopsy is 11 negative, is it your testimony that it's 12 acceptable and reasonable for you as a 13 gynecologist to conclude that the patient's 14 abnormal uterine bleeding is not associated with 15 uterine cancer or uterine sarcoma? 16 A. It's only the first step. Any 17 investigation involves many steps. We are just 18 on the first step. 19 Q. So with a negative endometrial 20 biopsy, under what circumstances do you go to a 21 D&C or a hysteroscope? 22 A. If medical treatment failed, you 23 give time for the medical treatment and if that 24 failed, then you go on to the second step. 25 Q. Which would be a D&C? 0063 1 A. And hysteroscopy. 2 Q. Dr. Grayson was Lillian's primary 3 care physician? That's probably not something 4 you -- 5 A. Looking at the chart. 6 Q. Right. Okay. Going back again just 7 in order to be entirely complete, you've not 8 talked to Dr. Grayson about Lillian's case, the 9 legal case, or any aspects of what happened to 10 Lillian after you last saw her in June of 2005; 11 is that correct? 12 A. No, I have not. 13 Q. There was a nurse practitioner who I 14 had hoped to meet today but will not be meeting 15 today due to what we've learned off the record 16 is a personal issue that apparently she has. 17 However, her name is Evelyn James. She is a 18 nurse practitioner. 19 Back in 2005 did you have occasion 20 to interact from time to time with Evelyn James 21 on other patients? 22 A. On other patients. 23 Q. Tell me, if you would, what is the 24 role or what was the role back in the 2004-2005 25 time period at Ohio Permanente for the use of 0064 1 nurse practitioners in seeing patients versus an 2 MD such as yourself? Why would a patient see a 3 nurse practitioner as opposed to seeing a 4 gynecologist? 5 A. My understanding was they saw normal 6 patients, that's all. I don't know much about 7 that. That's up to OPMG. 8 Q. Fair enough. 9 A. They know more about it. 10 Q. And I'll get clarification on that. 11 A. Yes. 12 Q. Evelyn James was a nurse 13 practitioner within the department of Ob/Gyn, 14 though; correct? 15 A. Yes. 16 Q. She wasn't a nurse practitioner 17 under family practice or internal medicine; 18 correct? 19 A. Correct. 20 Q. Were there other nurse practitioners 21 that worked in the department of Ob/Gyn in 22 2004-2005? 23 A. In Cleveland Heights? 24 Q. Is that where Evelyn was working? 25 A. Yes. 0065 1 Q. Were there other nurse 2 practitioners? 3 A. I used to see someone else coming 4 in, but I don't know whether that was their 5 regular place. 6 Q. So there probably was another one. 7 Whether or not -- 8 A. I don't know whether she was there 9 regularly. 10 Q. Do you know anything about Evelyn's 11 qualifications, her training and experience? 12 A. I don't know. I know she has been 13 there, that's all. 14 Q. She didn't just arrive in October of 15 2004? 16 A. No. She's been there. 17 Q. Do you know whether Evelyn is still 18 working as a nurse practitioner? 19 A. I think Evelyn retired in December. 20 Q. Of 2007? 21 A. Yes, last month. 22 Q. Are there occasions where nurse 23 practitioners would contact you or one of your 24 GYN colleagues when a patient was in the office 25 to obtain some direction or consultation? 0066 1 A. Yes. 2 Q. Are there in this policy book, the 3 one with the pages that get revised, are there 4 certain guidelines or protocols as to when the 5 nurse practitioner needs to get ahold of the MD 6 and when the nurse practitioner can do things 7 independently? 8 A. I don't know. 9 Q. I'll get clarification on that. 10 A. Right. 11 Q. Again, if it's something you're 12 familiar with, you tell me. If it's not -- 13 A. Right. I'm not familiar. 14 Q. That's fine. So far am I being fair 15 to you? 16 A. Yes. 17 Q. I want to make sure that throughout 18 this deposition that I'm not being unfair to 19 you. 20 MR. RIEMENSCHNEIDER: Objection. 21 Q. Okay? 22 MR. RIEMENSCHNEIDER: I haven't 23 heard that question in 20 years. 24 Q. I'm going to segue into your May 4, 25 2005, office visit and ask you some questions, 0067 1 but I'm not necessarily going to stay there. I 2 may have some questions that go back in time, 3 but I'll let you know whether I'm leaving this 4 office visit so I don't confuse you by going 5 back and forth; okay? 6 A. Okay. 7 Q. May 4th, 2005, was the first time 8 according to the records and obviously based 9 upon your memory that you had any personal 10 interaction with Lillian Dailey; correct? 11 A. Yes. Correct. 12 Q. Now, on the notes that you prepared, 13 and I understand when you see a patient that the 14 GYN progress sheet has a lot of the information 15 on the left-hand side already completed from 16 prior encounters when you see the patient; 17 correct? 18 A. It's general. Not just GYN, it's 19 everything. 20 Q. Okay. But it would have the 21 various -- 22 A. Medical conditions and surgical 23 conditions. 24 Q. So that when you saw Lillian, you 25 would have had some information that would have 0068 1 been completed by the nurse; correct? 2 A. Yes. 3 Q. You would have had on the left-hand 4 side of the visit her vital signs as well as 5 various medical conditions that she had been 6 treated for or had a history of all preprinted 7 on this progress sheet. Is that a fair 8 statement? 9 A. Yes. 10 Q. Now, the reason for the visit was 11 according to the nurse EMB, and that stands for? 12 A. Endometrial biopsy. 13 Q. Her complaint was vaginal bleeding. 14 Was that every day? 15 A. It looks like that. 16 Q. For four months? 17 A. Yeah. 18 Q. Then? 19 A. LMP. 20 Q. LMP which is? 21 A. Last menstrual period. 22 Q. It says April? 23 A. No. 24 Q. LMP 12-04. Prior menstrual period 25 April of 2004? 0069 1 A. Yes. 2 Q. That would be the nurse's note, 3 correct, not yours at that point? 4 A. Yes. 5 Q. The nurse would have been Nurse 6 Streety? Help me out there. 7 A. Sylvia Streety. 8 Q. S-T-R-E-E? 9 A. T-Y. 10 Q. T-Y? 11 A. Yes. 12 Q. She's a clinical -- 13 A. I think she's a medical assistant. 14 Q. Clinical medical assistant, CMA? 15 A. Yeah. Maybe that's what it is. 16 Q. So she would have met with Lillian, 17 gathered information, all in preparation for 18 your encounter with the patient; correct? 19 A. Yes. The nurse is the first one. 20 Q. Now, the fact that Lillian was 55 21 and 8 months, that fact alone doesn't put her 22 outside of the perimenopausal chronological age; 23 correct? 24 A. Correct. 25 Q. Now, when you examined her -- 0070 1 A. That's on the first page, my exam. 2 Q. So the exam would start with EG/BUS? 3 A. That's external genitalia. It was 4 normal. 5 Q. No lesions then in the vagina? 6 A. There was a small amount of blood. 7 Q. That's why you have small blood 8 positive or plus? 9 A. Yes. 10 Q. Was the plus to just designate the 11 amount of blood? 12 A. No. It was just to say it was 13 present. We have to write everything quickly, 14 so that's why the template is there. We just 15 mark it. 16 Q. Other than the word small, the plus, 17 one plus as opposed to two or three pluses 18 doesn't quantify it? 19 A. No. What I meant was present. 20 Q. Thank you. The cervix, tell me what 21 you have written there. 22 A. No discharge, no lesions. Her 23 cervix was normal. 24 Q. Then the uterus, tell me. 25 A. It was 12 week size and nontender. 0071 1 Q. Now, at that point in time when you 2 saw it was at the 12 week size, did you have 3 available to you information concerning the size 4 of the uterus from her prior visit? 5 A. If I had looked up Evelyn James. I 6 don't know whether I looked it up or not. I 7 usually do. 8 Q. Is it reasonable to say that in 9 evaluating this patient you would want to know 10 with a 12 week uterine size what tests had been 11 done on the patient prior to her seeing you in 12 May; correct? 13 A. Yes. 14 Q. Also, what the measurement was of 15 the uterus if any was made in prior visits; 16 correct? 17 A. I don't know in what order I would 18 go. I'm first seeing the patient. 19 Q. There is a requisition in the 20 records that was ordered by Dr. Grayson 21 indicating that the endometrium is prominent, 22 and it was noted at .9 centimeters. In a 23 patient such as Lillian, with her age, her 24 clinical findings, the history, of what 25 significance is a .9 centimeter endometrium 0072 1 prominence if any? 2 A. None in the perimenopausal. 3 Q. In a patient -- 4 MR. MISHKIND: I'm sorry. Did 5 you -- 6 MR. RIEMENSCHNEIDER: I was just 7 telling her to refer to the chart. 8 MR. MISHKIND: Okay. 9 A. I did see all this, but the order I 10 see it is different. 11 Q. I'm not suggesting -- 12 A. It's not like I read everything and 13 then go and talk. I talk with the patient and 14 then read everything. 15 Q. I'm not suggesting that one came 16 before the other. 17 A. Right. See, it's not like -- 18 without knowing the patient, there's no point in 19 reading everything. Talk to the patient, 20 examine, and then read everything about her. 21 Q. Let's do this. To be entirely fair 22 to you, let's go through the visit as it 23 evolved. I think that might be easier. 24 A. Right. 25 Q. I'll ask my questions relevant to 0073 1 some of these things as they come up. Does that 2 sound reasonable? 3 A. Yes. 4 Q. So you're doing the exam. You first 5 note that the uterus is 12 week size? 6 A. Right. 7 Q. And that's somewhat concerning to 8 you; is it not? 9 A. Yes. 10 Q. But nothing that you can 11 automatically arrive at any diagnosis based upon 12 that. Is that a fair statement? 13 A. Yes. 14 Q. It's an evolving process. It's one 15 piece of evidence that you need to apply. 16 A. Right. 17 Q. Did you do a breast exam? It looks 18 like things were crossed out. 19 A. Crossed out, that means I did not do 20 it because she had her complete physical with 21 Evelyn James, and a breast exam is done only 22 once a year, so there was no need to do that. 23 Q. Now, at that particular point how 24 did you know that she had had what would be 25 considered to be a well woman exam which would 0074 1 include a yearly clinical breast exam? How did 2 you know that Evelyn James had done that back in 3 October of 2004 when you saw her in May of 2005? 4 A. Because when I talk to her, I will 5 ask her have you had your annual GYN exam, and 6 she said, yes, I just had it. 7 Q. So that would be one of those things 8 that you would do out of normal practice? 9 A. Right. 10 Q. Remember, we talked about certain 11 things, and is that one of the items? 12 A. Right. One of the items is when was 13 your annual GYN exam. 14 Q. She would have told you I saw the 15 nurse practitioner? 16 A. Right. 17 Q. That would have been the reason and 18 the only reason why you wouldn't do a breast 19 exam? 20 A. Right. 21 Q. Let's continue as the visit evolved. 22 You didn't do a Pap test because of the same 23 reason, because of the annual exam? 24 A. The same reason. The annual exam 25 includes breast and Pap. 0075 1 Q. Would there have been anything else 2 that you would have routinely asked the patient 3 at this point while you were doing the exam that 4 would be your normal practice that isn't 5 necessarily reflected in the notes? 6 A. Well, I go great detail into the 7 history, what brings you here then. 8 Q. If the history was any different 9 than what she had told the nurse, would you have 10 noted it? 11 A. Yes. 12 Q. We then go to the second page. 13 Would this be the back of the first page, or 14 would this be a separate page if we were looking 15 at the original? 16 A. See, we don't do this anymore, so I 17 think it was -- you know, now we're all on the 18 computer. So I have a feeling it could have 19 been the back, but I don't know. 20 Q. Fair enough. Now you make the 21 computer entries? 22 A. Everything is computer entries. 23 Q. Which could be good or bad depending 24 on which perspective you have. So whether this 25 is the back of the page or the second page, we 0076 1 then go to the continuation of your exam, and 2 you're gathering further information from her; 3 is that correct? 4 A. Right. 5 Q. Do you want to just sort of narrate 6 from the very top? You have where it says other 7 specimens HPV, there is an X there. Was an HPV 8 test done? 9 A. It was not for HPV. It was under 10 other. 11 Q. Okay. 12 A. Other is marked other which is ECC 13 and EMB, endocervical curettage and endometrial 14 biopsy. 15 Q. If you had determined in May based 16 upon all of the information that you gathered 17 from the patient, from what she told you and 18 what you had available, that a D&C was 19 indicated, were you doing D&Cs in May of 2005 as 20 part of your practice? 21 A. That's an inpatient procedure. 22 Q. So if you felt it necessary at this 23 point in time to work up Lillian, you would have 24 called upon one of your colleagues that had 25 admitting privileges? 0077 1 A. Yes. 2 Q. There have been occasions where you 3 felt a D&C was necessary; correct? 4 A. Yes. 5 Q. When was the last time that you had 6 performed a D&C or a hysteroscope, that other 7 procedure? 8 MR. RIEMENSCHNEIDER: Objection. Go 9 ahead. 10 A. A D&C when I was doing inpatient 11 GYN. 12 Q. Okay. Even when you were at Metro, 13 you wouldn't have done D&Cs? 14 A. I was only doing office. 15 Q. So during this visit, you have a 55 16 year old -- 17 A. Gravida one, para one, AB zero, LCB 18 is last childbirth 21 years, vaginal birth, VB. 19 Q. Just continue on. Go slow enough so 20 she can get everything down, and I may stop you 21 to get clarification. If I remain silent, which 22 doesn't happen very much, just continue. 23 A. Okay. Complains of daily bleeding, 24 light and heavy, for four months since December 25 2004, and her last period was April 2004 and 0078 1 previous to that was March 2004. 2 Q. Now, let me stop you at this point 3 and ask you a couple questions. Going back to 4 complaining of daily bleeding, light and heavy, 5 would you likely have asked her further 6 questions to quantify or to qualify what the 7 light and heavy bleeding was like? 8 A. Yes. 9 Q. Do your notes help you appreciate 10 the degree or the magnitude of her bleeding? 11 A. No. I cannot write everything she 12 told me. She would have just said I've been 13 spotting here or spotting there. So I cannot 14 write every single word she tells me because she 15 can just have this big conversation. 16 Q. So the light and heavy bleeding? 17 A. That's an abbreviation of her 18 conversation with me. 19 Q. What I'm giving you is an 20 opportunity if that keys you into any further 21 descriptors or any further qualification of the 22 bleeding, are you able to say that based upon 23 those words her bleeding was likely spotting or 24 her bleeding at times was more significant or 25 does that help you at all? 0079 1 A. It doesn't. I will do a blood test. 2 Q. To see whether or not she's anemic? 3 A. Exactly. 4 Q. Now, you have marked down last 5 menstrual period April of 2004. That's what she 6 told you? 7 A. That is what I was writing in. Even 8 though her last period, what she said was 9 December, so it was the previous one was April. 10 Q. But you marked down last menstrual 11 period April 2004; correct? 12 A. Right. 13 Q. You didn't mark down last menstrual 14 period December of 2004? 15 A. Right. But on the first page it's 16 written as she told us December. 17 Q. Can we agree that there is some 18 inconsistency between your note that her last 19 menstrual period was April of 2004 and what the 20 nurse marked down as the last menstrual period? 21 A. It could be that, or I could have 22 asked her when was the previous one to December. 23 Q. There is a significance to the 24 abbreviation LMP; is there not? 25 A. Right. Yes. 0080 1 Q. So when you mark down last menstrual 2 period, you're not asking the patient when was 3 your last menstrual period before the last 4 menstrual period; are you? 5 A. Usually not. 6 Q. Prior menstrual period then would 7 have been the next question. You would have 8 asked her before your last menstrual period in 9 April of 2004 when was your prior menstrual 10 period? 11 A. Prior to April, yes. 12 Q. She would have indicated March of 13 2004; correct? 14 A. Right. 15 Q. Is it fair to say that during your 16 encounter with Lillian, she did not indicate to 17 you, she might have to the nurse, but she didn't 18 indicate to you that her last menstrual period 19 was December of 2004? 20 A. I don't know what she said. 21 Q. Do your notes reflect that she told 22 you that her last menstrual period was December 23 of 2004? 24 A. It does not reflect clearly. 25 Q. Below previous menstrual period -- 0081 1 A. Because in the next sentence I've 2 said no periods from April until December, so 3 I'm still considering December as a period. 4 Q. Let's go through that. Right below 5 prior menstrual period you have no and is that 6 MPS? 7 A. No menstrual period or bleeding from 8 April until December. 9 Q. Now, that December of 2004, without 10 the benefit of the nurse's note about last 11 menstrual period, this note from April of 2004 12 until December of 2004, can we agree that your 13 note indicates that she either had no menstrual 14 period or bleeding between April and December of 15 2004? 16 A. Yes. 17 Q. But is it fair to say that from this 18 note alone you can't tell me that the bleeding 19 she had in 2004 was a menstrual period as 20 opposed to abnormal menstrual bleeding? 21 A. Well, in my sentence it says no 22 periods until December 2004, so I'm considering 23 12-2004 as a period. 24 Q. Well, let's be really clear and 25 accurate. 0082 1 A. Right. 2 Q. Your note says no menstrual period 3 or bleeding. 4 A. Right. 5 Q. From April 2004 to December of 2004; 6 correct? 7 A. Correct. 8 Q. Your note doesn't say that in 9 December of 2004 what happened was a menstrual 10 period; does it? 11 MR. RIEMENSCHNEIDER: Objection. Go 12 ahead. 13 A. I might not elaborate on that in my 14 notes but -- 15 Q. I'm sorry. Go ahead. I interrupted 16 you. You were in the middle of a but. 17 A. No. See, she might have told me I 18 had a period in December and since then -- 19 that's what they say usually, I had a period in 20 December and then I've been bleeding. But I 21 don't write all those sentences in. I just have 22 to write all this very quickly. 23 Q. You don't have an independent 24 recollection of the conversation that you had 25 with Lillian on that particular date; do you? 0083 1 A. No. 2 Q. In terms of what occurred in 3 December of 2004 or how long she had been prior 4 to April of 2004 or since April of 2004 -- 5 strike that. It never was going to come out 6 understandable, so I'm going to start over 7 again. 8 Is it fair to say that other than 9 this nurse's note that you've referred to in 10 terms of her circling or her marking down LMP 11 December of 2004, interpreting your note that 12 says no menstrual period or bleeding from April 13 of 2004 to December of 2004, can we agree that 14 one cannot conclude that that note means that in 15 December of 2004 she had a menstrual period? 16 MR. RIEMENSCHNEIDER: Objection. 17 Asked and answered. Go ahead, Doctor. 18 A. I have to explain. 19 Q. Go ahead, please. 20 A. If it was not a period, I would have 21 written a note saying the bleeding in December 22 -- see, I agreed with the nurse. I agreed with 23 the nurse because otherwise I will write -- 24 sometimes I write a note that the bleeding was 25 not a period, but I did not write that. 0084 1 I have agreed with the nurse saying 2 it was a December 2004 period. I did not say -- 3 I did not contradict the nurse. I did not 4 contradict the nurse's note saying the period 5 recorded by the nurse is not a period. I did 6 not write that. I did not write a negative 7 thing. 8 Q. We can agree that it's important 9 that you independently obtain a history from the 10 patient on something as important as the nature 11 of the bleeding that a patient that is 12 perimenopausal presents with? 13 A. I extensively question them. 14 Q. Certainly if this patient had a 15 period in April of 2004 and had abnormal uterine 16 bleeding in December of 2004 that wasn't a 17 period, that would be something that would be 18 significant for you to be aware of; true? 19 A. Can I explain it? 20 MR. RIEMENSCHNEIDER: Well, hold on. 21 Just answer his question, and then explain it if 22 you need to. 23 Q. Start by when you go through your 24 independent history and you find out the light 25 and heavy bleeding and you find out when the 0085 1 last menstrual period is, is it important for 2 you as a reasonable and prudent gynecologist 3 that is seeing this patient for the very first 4 time to understand whether or not what occurred 5 in December of 2004 was a normal period, a 6 normal menstrual period, or was abnormal uterine 7 bleeding? 8 A. By my questioning I would understand 9 that. 10 Q. That's an important thing for you as 11 a gynecologist to appreciate and understand; 12 correct? 13 A. Yes. 14 Q. Now, going on below this note, it 15 says no pelvic or abdominal pain? 16 A. Yes. 17 Q. Is that important? 18 A. I always ask them about pain. 19 Q. Tell me, of what significance is the 20 absence of pain as it relates to the diagnostic 21 criteria for this patient? 22 A. Well, it's one good thing if she 23 doesn't have pain. 24 Q. If she had pain, would that lead you 25 down a different path? 0086 1 A. I can't answer that because it's so 2 theoretical. I don't know. 3 Q. The reason I asked that -- I'm 4 sorry. I may have interrupted you. Did I 5 interrupt you? 6 A. No. No. 7 Q. The reason I asked about that is 8 because you told me before when you are thinking 9 about uterine sarcomas, remember one of the 10 things you talked about was pain? 11 A. Yes. 12 Q. What was the other characteristic? 13 A. Rapid growth, pain, bleeding, age. 14 Q. So we have bleeding. Whether this 15 was the normal menstrual period or abnormal 16 uterine bleeding, that will need to be 17 determined, but at least from your notes it's 18 pretty clear she had no pelvic or abdominal 19 pain; correct? 20 A. Yes, and also I did not contradict 21 about the period. 22 Q. I understand that. You've said that 23 a couple times. 24 A. Okay. 25 Q. The fact that she had no pelvic or 0087 1 abdominal pain, that's a good finding that would 2 suggest against uterine sarcoma; correct? 3 A. Pain is one of the symptoms of 4 sarcoma. 5 Q. The absence of pain, does that give 6 you a better comfort level that it's less likely 7 that the patient has a uterine sarcoma? 8 A. No symptom is 100 percent. 9 Q. I understand that, but does it give 10 you a greater level of comfort that it's less 11 likely that it's a uterine sarcoma? 12 A. Less likely at that time, yes, if 13 there's no pain. 14 Q. In your experience in looking at the 15 stages of uterine sarcomas, would you agree that 16 patients that have uterine sarcomas, from a 17 pathophysiological standpoint that the uterine 18 sarcoma is not symptomatic at its earliest 19 stages? 20 MR. RIEMENSCHNEIDER: Objection. 21 THE WITNESS: Do I have to answer? 22 Q. You do. 23 MR. RIEMENSCHNEIDER: If you know, 24 you can answer. 25 A. All disease processes are 0088 1 asymptomatic in the beginning. 2 Q. In uterine sarcomas, in the 3 evolution of the sarcoma are patients 4 immediately symptomatic, or are they in early 5 stages, if a patient in a snapshot in time if 6 they are found by diagnostic criteria to have a 7 uterine sarcoma and they happen to be diagnosed 8 at an early stage, stage one, are you or are you 9 not aware of the literature that references that 10 in early stage uterine sarcomas patients are 11 less likely to complain of pain than in sarcomas 12 as they advance in stage and metastasize? 13 A. All I can say is in the beginning 14 stages of any disease the symptoms are vague, 15 any disease, cancer or noncancer. 16 Q. So talking about uterine sarcomas, 17 you would expect that the symptoms in the early 18 stage of a uterine sarcoma would be either vague 19 or asymptomatic, and as the condition advances, 20 the symptoms become more specific and the 21 patient with uterine sarcomas demonstrates more 22 symptoms of pain? 23 A. Like any other disease. Like any 24 other disease process. 25 Q. But we're only talking about uterine 0089 1 sarcomas, so I don't want to talk about -- 2 A. But that's how it is. Nothing 3 presents right away. 4 Q. That's what you would expect in a 5 uterine sarcoma as well; correct? 6 A. But those other symptoms are there 7 like rapid growth, pain, bleeding, if she 8 presented with that. 9 Q. All right. Let's go on with the 10 visit. Otherwise, we'll never finish. Does 11 that say no other problems at the bottom of the 12 page? 13 A. No other problems. 14 Q. Then we continue on to either the 15 back of the next page or another page? 16 A. That's right. 17 Q. You then marked down -- 18 A. High blood pressure. That is just 19 for my own information. 20 Q. Is the high blood pressure of any 21 clinical significance in evaluating a patient 22 that has abnormal uterine bleeding in terms of 23 whether the patient is at increased risk for 24 uterine sarcoma or uterine cancer? 25 A. High blood pressure is a risk factor 0090 1 for uterine cancer. 2 Q. But not for uterine sarcoma? 3 A. No. 4 Q. Status post BCP? 5 A. She has used birth control pills in 6 the past. 7 Q. Let's just continue with the 8 narrative, not the labs but -- 9 A. Diaphragm used ten years ago, and 10 then well woman exam October 2004 by Evelyn 11 James, CNP, certified nurse practitioner. 12 Q. This would have been Lillian giving 13 you this history that she had been seen? 14 A. She would have told me all that, but 15 when I go back to my office, I then look in the 16 computer and start writing these things down. 17 Q. But at this particular point when 18 you marked down well woman exam -- 19 A. That is checking the computer 20 because she would have told me I had it at the 21 end of last year, but she may not have told me 22 which month, so I go back and check it. 23 Q. All right. Now, you did a TSH on 24 Lillian; correct? 25 A. That was later, I think. Let me 0091 1 see. Yeah, I ordered it on the next page. On 2 page 4 I have ordered the TSH. 3 Q. Is there a reason you didn't order 4 an FSH? 5 A. Yeah, because it's -- because, as I 6 told you, it's not going to help us in any way, 7 FSH, because -- you want me to explain about 8 FSH? 9 Q. Please, I do want you to do that. 10 A. FSH has -- several FSHs have to be 11 done, and then we have to see whether they are 12 all elevated, several of them. Only then can we 13 say it's postmenopause. Just one FSH alone is 14 not going to help because they fluctuate. 15 One can be elevated, and then they 16 can come down, and then they can go up. So it 17 doesn't help really, and just based on one FSH 18 we cannot say you are postmenopausal. 19 Q. Don't you have to start someplace; 20 though? 21 A. Not necessarily. 22 Q. Wouldn't it be reasonable to do an 23 FSH and then to repeat it especially if you know 24 you're going to be seeing this patient back 25 again in the office? 0092 1 A. And then repeat again the FSH? 2 Q. Yes. 3 A. It's not really that important. 4 Q. It's not important to know whether 5 or not the patient is perimenopausal or 6 postmenopausal? 7 A. Well, we may have to do it every two 8 weeks for at least a year maybe. I have seen 9 that. 10 Q. So doing one or two or three -- 11 A. No. 12 Q. -- FSHs, your testimony is it would 13 be clinically unimportant in this patient? 14 A. I don't know. 15 Q. Was the TSH normal or abnormal? 16 A. Those results come at a later date, 17 the one that I ordered. I'd have to go back and 18 look at that. 19 Q. The TSH that you have marked down, 20 is this a TSH from November of 2004 that you 21 were marking down? 22 A. The one I wrote in my side notes is 23 from November. 24 Q. So at this point you're looking at 25 the computer, and you see it was October of 2004 0093 1 that Lillian had been seen by Evelyn James? 2 A. Yes. 3 Q. You then also would have taken off 4 the computer lab results from November of 2004; 5 correct? 6 A. Right. Correct. 7 Q. You would have known she had had 8 various blood work including a mammogram? 9 A. Yes. 10 Q. Then it looks like code seven. What 11 is that? 12 A. That's a mammogram. Code seven, 13 that means she has to have another mammogram in 14 six months. 15 Q. You also made a note, and correct me 16 if I'm wrong, please, that as you're looking at 17 the computer that there was an ultrasound done, 18 and you would have had the results of the 19 ultrasound on the computer to consider in your 20 workup of the patient? 21 A. Yes. 22 Q. Tell me what you've noted in the 23 results of the ultrasound in November of 2004. 24 A. I may not have written every line of 25 the ultrasound report. I actually read the 0094 1 ultrasound report, but just I jot down the main 2 points, that's all, not every single word in 3 that report. 4 Q. So this would be a notation of the 5 main points? 6 A. Just the main points. 7 Q. And this would have noted that the 8 uterus was 12.7 by 9.5 by 10.2 centimeters? 9 A. Centimeters, yes. 10 Q. So E is? 11 A. Is the endometrial stripe lining. 12 Q. You have .9 centimeters, and you 13 underlined it twice. Normally when I talk to 14 doctors, when they underline things there is 15 some reason for doing that. Why did you 16 underline that twice? 17 A. I don't know why I underlined it. 18 Q. That must have been of some clinical 19 importance to you? 20 A. Because I always pay attention to 21 the endometrial lining because if it was thin, 22 then she is postmenopausal. This only shows she 23 is perimenopausal. 24 Q. So .9 centimeters, the endometrial 25 thickening? 0095 1 A. Thickening is normal in 2 perimenopausal. 3 Q. You'd have to be what, 1 centimeter 4 to be postmenopausal? 5 A. No, less than .0. 6 Q. Now, the ultrasound showed multiple 7 fibroids? 8 A. Yes, ovaries not seen. 9 Q. Then what does it have? 10 A. A 5.4 centimeter fibroid on the 11 posterior wall. 12 Q. Now, were you looking at the actual 13 ultrasound, or were you looking at the 14 interpretation? 15 A. I just looked at the report. 16 Q. Now, you have SH which stands for 17 what? 18 A. Social history. 19 Q. Help me with what you've marked down 20 there, please. 21 A. Married 24 years, nonsmoker, and 22 work is English professor at Tri-C. 23 Q. Then FH I presume is family history? 24 A. Family history, no breast or female 25 cancer like uterine or ovaries. Female cancer I 0096 1 mean uterus, ovaries, or cervix, so she doesn't 2 have that family history. Mom is 84. Mother is 3 84. Heart problems and diabetes. Dad died at 4 81 of cancer, prostate, and also had diabetes. 5 Grandparents, uncles and aunts have diabetes. 6 Q. Then the O/E is? 7 A. On examination, general condition 8 was good. Blood pressure was 130 by 70 and 9 weight was 245. 10 Q. Now, before you saw Lillian, there 11 was a telephone encounter on April 22nd, 2005, 12 and that would be something that if you wanted 13 -- it wasn't with you, but if you wanted that 14 information, the telephone encounters would also 15 be in the computer, correct, just as the 16 information about the well woman exam; is that 17 correct? 18 A. Yeah. I think all telephone 19 encounters are there. 20 Q. Okay. The reason I reference that 21 is that the telephone encounter in April of 2005 22 referenced that she had been passing clots, and 23 the note says caller states four month history 24 of intermittent vaginal bleeding. Prior to that 25 last menstrual period was June. 0097 1 A. June, see? 2 Q. Now, just as it was important for 3 you to know the findings from the well woman 4 exam by Evelyn James, would it be important for 5 you to know what the bleeding had been that the 6 patient had a telephone encounter about, whether 7 it was with you or her primary care physician? 8 A. So was the telephone encounter to 9 the primary care? 10 Q. It's sometimes difficult to know by 11 looking at this, but it appears that on 12 April 22nd there was a call, and the provider 13 for some reason on this encounter was MSC 14 pediatrics. MSC, do you know what that stands 15 for? 16 A. Member service center. So they took 17 the call, but where did they direct it? 18 Q. It appears that the nature of the 19 call was -- she was calling for advice. Member 20 with four month history of interim vaginal 21 bleeding. It states prior to that her last 22 menstrual period was mid June. GYN appointment 23 S. Bishara? 24 A. She is the call center person. 25 Q. It looks like the call OB, as best 0098 1 as I can and obviously we'll need to get this 2 clarified, but it looks like the advice was 3 pelvic rest, put on maxi pad, call back in one 4 hour, if soaked sooner call immediately, call 5 back if symptoms increase or persist, consult 6 with clinic MD. 7 These are all computer generated 8 notes from telephone encounters. This is 9 something that if it was important, it would 10 have been something that you could have accessed 11 to see what had gone on with her since she was 12 seen by the nurse practitioner in October of 13 2004; correct? 14 A. Yes. 15 Q. Is it fair to say that your notes 16 don't reflect any discussion or even review of 17 the telephone encounters when you saw her in May 18 just a month later? 19 A. It shows that she's telling us her 20 period is a different time now. That's all. 21 Q. Forget about the dates. My question 22 to you was, when you saw her just two weeks 23 later after this telephone encounter -- 24 A. Right. 25 Q. -- is there any indication in your 0099 1 notes? 2 A. It's not recorded, but I don't know. 3 Q. You ordered an ultrasound to be 4 done? 5 A. According to my notes, there is a 6 pelvic ultrasound. 7 Q. You did a pelvic exam? 8 A. Yes. 9 Q. That's when you noted the uterus to 10 be 12 week size? 11 A. Right. Then I sounded the uterus. 12 Q. How do you do that? 13 A. With a sound. We have a uterine 14 sound. 15 Q. Like a wand? 16 A. It's like a metal, narrow metal, and 17 it's got markings on it. 18 Q. Is there a way you grade the sound? 19 A. Yeah, because it's marked. 20 Q. What was the gradation? 21 A. Uterine sound 10 centimeters. It 22 went all the way up to 10 centimeters. 23 Q. Is that a good finding, a good sign? 24 A. Yeah. That means it's about 10 week 25 size or 12 week size. 10 centimeters, it 0100 1 corresponds with the size. 2 Q. Right below the 10 centimeter 3 uterine size from the sound you have EMB done? 4 A. Done with a pipelle, and ECC done. 5 Q. EMB is? 6 A. Endometrial biopsy done with a 7 pipelle, and endocervical curettage done. 8 Q. Right below that you have in 9 parentheses CB and EMB? 10 A. Call back for endometrial biopsy 11 results if not contacted in two weeks. 12 Q. So were you basically making a note 13 and telling the patient -- 14 A. Yes. 15 Q. -- to call back? Go ahead. 16 A. Because I tell all of them, all 17 these results, you know, if you don't hear from 18 me in two weeks, you have to call me and make 19 sure. 20 Q. Then you also noted that she should 21 follow up with her primary care physician? 22 A. For the mammogram. Yeah, follow up 23 with the primary care, and I wrote that 24 mammogram because it was a code seven, I 25 reminded her to have it in June. 0101 1 Q. Her last one had been? 2 A. That code seven was in December, so 3 code seven means they have to have it in six 4 months, so I was telling her to have it in June. 5 Q. Right below that what does that say? 6 A. Right breast? Is that the one, 7 right breast only? 8 Q. Yes, and then there's -- 9 A. Then there's a signature of the 10 nurse, C. Bednar. 11 Q. C. Bednar? 12 A. Yeah. She was the discharging nurse 13 because they go through that. 14 Q. On the right-hand side of the sheet 15 you've got one of the plans. You've got various 16 labs that you've ordered; true? 17 A. CBC, complete blood count, TSH, and 18 random glucose. 19 Q. Then your plan was also to do an 20 ultrasound? 21 A. A pelvic ultrasound, menstrual 22 calendar. 23 Q. What does that mean? 24 A. So we give them all these calendars 25 so we can see exactly how much they are 0102 1 bleeding. Like they can put heavy or light. 2 It's all like coded. 3 Q. Then you told her to come back in -- 4 A. Six weeks to see me. 5 Q. What you gave her? 6 A. I gave her Provera to start from 7 June, from day 1 to 14 of each calendar month. 8 Q. Did you want her to start the 9 Provera before you had the results of the 10 ultrasound? 11 A. No. 12 Q. Would it have been contraindicated 13 to start the Provera before you had done the 14 pelvic ultrasound? 15 A. No. There was no contraindication. 16 I just wanted to make it easy for her to start 17 from June 1st. 18 Q. What was the reason that you were 19 prescribing Provera? 20 A. If she was having bleeding because 21 of lack of ovulation, that is a hormonal 22 imbalance, and there is no progesterone, and 23 Provera is progesterone, and then we are adding 24 the Provera which is like a medical D&C. Like 25 all the estrogen level would be higher for her, 0103 1 and the lining would be all stuck there, and 2 this Provera would just get rid of it. 3 Q. In a patient who has a uterine 4 sarcoma, would you agree that giving her 5 progesterone would be contraindicated? 6 A. No. 7 Q. You believe it's appropriate to give 8 a patient with uterine sarcoma progesterone? 9 A. The diagnosis hasn't been made. 10 Q. No. If a patient has a diagnosis of 11 uterine sarcoma? 12 A. Like a hypothetical patient? 13 Q. Yes, a hypothetical patient, would 14 it be appropriate or would it be acceptable to 15 give the patient progesterone? 16 A. It's not the treatment. 17 Q. Okay. That would not be something 18 that you would do in that hypothetical patient; 19 correct? 20 A. No. 21 Q. Would giving progesterone to a 22 patient with uterine sarcoma have any adverse 23 effects on the patient? 24 A. No adverse effects. 25 Q. Why would it not be appropriate to 0104 1 give a patient with uterine sarcoma progesterone 2 if it has no adverse effects? 3 A. If a diagnosis of sarcoma is made, 4 we have to treat it. 5 Q. Certainly treating it with 6 progesterone would not be what you would do; 7 correct? 8 A. Right. 9 Q. Now, there was a telephone encounter 10 after your visit, I believe? 11 MR. RIEMENSCHNEIDER: Are you done 12 with this first visit? 13 MR. MISHKIND: I am. 14 MR. RIEMENSCHNEIDER: Why don't we 15 take a break, five more minutes. 16 (Brief recess.) 17 THE WITNESS: Can I go back on one 18 of the questions? 19 MR. RIEMENSCHNEIDER: No. No. 20 You're fine. 21 Q. Doctor, you just indicated after 22 taking a break that there was something you want 23 to go back to on a particular question. 24 A. Right. 25 Q. This was after taking a break and 0105 1 talking to your attorney? 2 A. No. It's just I wanted to ask you 3 even before, but you were asking me these 4 questions, and I didn't have time. 5 Q. Okay. Go ahead. 6 A. It was about the telephone call 7 where the patient said her last period was June. 8 So if you calculate from June, even more she's 9 not in menopause, if the last period was in June 10 and she had a period in December. But that's 11 only four months there because she did say her 12 last period was in June. 13 Q. That's what the telephone encounter 14 noted, but you weren't privy to that telephone 15 conversation? 16 A. I didn't. I mean, when you are 17 saying it now. I don't know if I knew that at 18 that time. There's no record of it in my notes. 19 Q. Doctor, to be absolutely certain so 20 that there's no question in your mind, when 21 you're treating a patient, how do you go about 22 determining whether or not what the patient is 23 describing to you is abnormal uterine bleeding 24 or in fact a menstrual period? 25 A. By history, talking to her, finding 0106 1 whether it's the length, the amount. 2 Q. It's your job, is it not, to make 3 sure that you ask the right questions to get the 4 right information so that you can accurately 5 determine whether or not this is a menstrual 6 period or abnormal uterine bleeding; correct? 7 A. Correct. 8 Q. If you don't ask the right 9 questions, you're not going to get the right 10 information; correct? 11 A. Correct. 12 Q. That can impact how you treat the 13 patient; correct? 14 A. Correct. 15 Q. You said to me before that in 16 endometrial cancer one of the risk factors is 17 age. At what age do you consider a patient to 18 be at increased risk of endometrial cancer? 19 A. 50s, but it can occur at any age. 20 Any age it can happen. 21 Q. But certainly a patient 55 or so 22 would be right in the prime -- 23 A. The highest incidence of 24 endometrial. 25 Q. Great. You put it much better than 0107 1 I could have. Thank you. Now, in a 2 hypothetical patient, because I know you've told 3 me that you don't want to contradict the nurse 4 and that you feel that she was perimenopausal, 5 not postmenopausal? 6 A. Right. 7 Q. But in a patient who is 8 postmenopausal, do you treat abnormal uterine 9 bleeding differently than you do in a patient 10 who is perimenopausal? 11 A. It's very similar. Perimenopausal, 12 if they say at that visit I don't want to have 13 it done today, I'll come back next week, I might 14 say okay. But if it is a postmenopausal, I 15 would say, no, you have to have it right now. 16 Q. Have it right now is what, the 17 endometrial biopsy? 18 A. I mean, I offer it to everyone who 19 has bleeding right then and there. 20 Q. Endometrial biopsy? 21 A. Endometrial biopsy. 22 Q. Is the workup in terms of diagnostic 23 testing to rule out malignancy of greater 24 clinical significance in a patient who is 25 postmenopausal than a patient who is 0108 1 perimenopausal? 2 A. No. It's about the same. What we 3 do is the same. 4 Q. Is the reliance upon a negative 5 endometrial biopsy sufficient in your mind to 6 rule out a malignancy in a postmenopausal woman? 7 A. It's just part of the answer. 8 Q. Now, you ordered an ultrasound to be 9 performed; correct? 10 A. Yes. 11 Q. Was that ultrasound a transvaginal 12 ultrasound? 13 A. Yes. 14 Q. Was the previous ultrasound that was 15 done back in November, was that also a 16 transvaginal ultrasound? 17 A. Yes. 18 Q. So we were comparing apples to 19 apples; correct? 20 A. Yes. 21 Q. That's important; is it not? 22 A. Yes. 23 Q. Is a complaint by a patient of 24 saturating a pad an hour and feeling faint, is 25 that of clinical significance in a patient that 0109 1 presents to you two weeks later with complaints 2 of abnormal uterine bleeding, that two weeks 3 earlier she was saturating a pad an hour and 4 feeling faint? 5 A. It's important that she's bleeding 6 heavy. That doesn't mean she has cancer. 7 Q. In terms of your differential 8 diagnosis, does that cause you to lean one way 9 or another in a patient of Lillian's age, 10 ethnicity, obesity, diabetes, when she presents 11 and has a history of a recent episode of 12 abnormal uterine bleeding where she's saturating 13 a pad an hour and feeling faint? 14 A. Is that the phone call? 15 Q. Yes. 16 A. When? 17 Q. April 22nd. 18 A. Oh. Well, that's why I ordered the 19 blood count, CBC. 20 Q. Right. With saturating a pad an 21 hour and feeling faint, in terms of the 22 differential does that lead you or lean you one 23 way or another in terms of whether or not the 24 patient's history of abnormal uterine bleeding 25 is consistent with a malignancy as opposed to a 0110 1 benign process? 2 A. No. Benign processes bleed, too, 3 similarly. 4 Q. Doctor, is it fair to say that as of 5 May 2005 when you saw Lillian that she had 6 complained to the nurse of vaginal bleeding each 7 day for four months and that it looks like the 8 nurse had underlined four months? 9 A. Yes. 10 Q. And also you noted that she was 11 complaining of daily bleeding? 12 A. Light and heavy. It's not heavy all 13 the time. 14 Q. Also, you had noted for four months, 15 correct, since December of 2004? 16 A. Right. 17 Q. The telephone encounter that you had 18 on May 12th, it looks like you were involved in 19 this telephone encounter? 20 A. I don't know where that is. Is that 21 in a separate section? 22 MR. RIEMENSCHNEIDER: Yes. 23 MR. MISHKIND: We can give her a 24 copy. 25 Q. Here you go, Doctor, just to save 0111 1 you some time (indicating). As you're looking 2 at that, it appears that there was an encounter 3 documented on May 12th at or around 10:30 in the 4 morning by Lillian, and if I'm reading this 5 correctly, it looks like the call was directed 6 to you. 7 A. Was that the first line here? 8 Member states she took progesterone and vaginal 9 bleeding slowed up; is that the one? 10 Q. Well, it looks like there's a page, 11 the first page, which would be the encounter 12 page. See (indicating)? 13 A. It's a different one. 14 MR. RIEMENSCHNEIDER: She's looking 15 right here. Where are you actually referring 16 to? 17 MR. MISHKIND: May 12, 2005. 18 Q. It looks like this call was directed 19 to you? 20 A. Uh-huh. 21 Q. Now, that was a yes? I take it you 22 don't recall having this telephone encounter? 23 MR. RIEMENSCHNEIDER: Listen to his 24 question, Doctor. 25 Q. Do you recall having contacted or 0112 1 having had any communication that was directed 2 to you on May 12th, 2005, when Lillian called 3 Kaiser? 4 A. I don't recall except these notes 5 here. 6 Q. Now, it looks like a nurse spoke to 7 her and indicated that -- strike that. Let's go 8 on to the next page. 9 It looks like there's another 10 encounter on May 19, 2005, and on that 11 particular date it looks like it notes that you 12 contacted the member. You see at the very 13 bottom, and I'll show you the highlighted -- 14 A. Yes. 15 Q. It says contacted MBR. That would 16 be member? 17 A. Right. 18 Q. MBR had EMB and CX done on May 4? 19 A. Yes. 20 Q. By doctor, and that's your name; 21 right? 22 A. Yes. 23 Q. For DUB which would be what? 24 A. Dysfunctional uterine bleeding, 25 within normal. 0113 1 Q. And then member requesting results? 2 A. Yes. 3 Q. Advise member you will be back in 4 office May 23rd. Then it says, member states 5 she took prescription for progesterone times 14 6 days and vaginal bleeding slowed up but did not 7 stop. Now remains with moderate amount of 8 vaginal bleeding. 9 A. Member will keep pelvic ultrasound 10 appointment scheduled on May 20th. 11 Q. Now, there's a note, just continuing 12 down on the encounters, on May 24th. It looks 13 like this is your note. It has 14 week -- 14 A. Size uterine fibroid. 15 Q. A benign condition? 16 A. Uh-huh. Continue cyclic Provera. 17 Q. Was this now after having the 18 benefit of the transvaginal ultrasound? 19 A. Depending on the date of that 20 ultrasound, I might have seen that. 21 Q. The pelvic ultrasound was done on 22 May 20th. 23 A. Okay. 24 Q. Is it reasonable to conclude that on 25 May 24th -- 0114 1 A. I might have seen the report on the 2 computer. 3 Q. The uterus had gone from 12.7 by 9.5 4 by 10.2 to 14.8 by 10.9 by 9.7. If I'm correct, 5 the uterus, the multiple fibroids, the largest 6 one that was seen had gone from a measurement of 7 5.4 to 10.7 centimeters between the two 8 ultrasounds. I presume you would have compared? 9 A. Yes. 10 Q. Yet your diagnosis was that this was 11 a benign condition? 12 A. Yeah, because some of the 13 measurements have even decreased. Like if you 14 compare the 12.7, 9.5, 10.2 and then this is 15 14.8, 10.9, and 9.7, so there is a decrease in 16 that one. 17 Q. When you say a benign condition, I 18 presume that before one would say a benign 19 condition you are ruling out cancer? 20 A. At that time. At that point. 21 Q. So cancer was not within your 22 differential at that point; correct? 23 A. Right, because it was not big, 24 significantly larger measurements. Because also 25 it was read by two different radiologists, and 0115 1 we see that. 2 Q. Taking into account that two 3 different radiologists read it, there might be a 4 little bit of variance in terms of technique and 5 interpretation; correct? 6 A. Right. 7 Q. But, Doctor, between December of 8 2004 and May of 2005, the two ultrasounds, the 9 posterior wall of the uterine fibroid went from 10 5.4 centimeters to 10.7 centimeters. Isn't that 11 considered to be a significant growth in a short 12 period of time? 13 A. No. 14 Q. It isn't? 15 A. Not in perimenopausal. 16 Q. But in a postmenopausal woman, would 17 that be considered -- 18 A. In a postmenopausal, but not in a 19 perimenopausal. 20 Q. So if Lillian was postmenopausal and 21 she had that kind of growth, from 5.4 22 centimeters in the posterior wall of a uterine 23 fibroid to 10.7 centimeters which was the 24 largest area of variable echogenicity, that 25 would be a significant growth in a 0116 1 postmenopausal patient; correct? 2 MR. RIEMENSCHNEIDER: Objection. 3 Q. Hypothetically. 4 A. Hypothetically we just wanted just 5 one thing. 6 Q. If one is considering uterine 7 sarcoma, didn't you tell me before one of the 8 things that you look for is -- 9 A. Is rapid growth. 10 Q. Rapid growth? 11 A. Of everything. All of them. 12 Q. Is it your testimony that between 13 December of '04 and May of '05 that a fibroid 14 going from 5.4 centimeters to 10.7 would or 15 would not be considered rapid growth? 16 A. Because the other measurement went 17 down. 18 Q. Stay with me. Comparing apples to 19 apples, is the growth of the fibroid going from 20 5.4 centimeters to 10.7 centimeters between 21 December of '04 to May of '05, is that with 22 regard to the fibroid considered rapid growth? 23 A. No. 24 Q. It isn't? 25 A. No. 0117 1 Q. What growth would you have needed to 2 have seen in the fibroid between December and 3 May to have considered it to be rapid growth? 4 A. If it affected all the measurements. 5 Q. So all the measurements would have 6 had to have been increased, not just one? 7 A. Right. 8 Q. So that doesn't fall within your 9 definition of what you believe to be reasonable 10 and prudent clinical evaluation to be evidence 11 of rapid growth? 12 A. Yes. 13 Q. The fact that the fibroid had 14 essentially doubled in size that I'm referring 15 to in the posterior wall between December and 16 May in your professional opinion doesn't 17 constitute rapid growth? 18 MR. RIEMENSCHNEIDER: Objection. 19 Asked and answered. Go ahead, Doctor. 20 A. Well, the radiologist usually will 21 also say there is something abnormal here, and 22 it was two different -- 23 MR. RIEMENSCHNEIDER: Okay. Go 24 ahead. Finish your answer. 25 A. So -- 0118 1 Q. Doctor, you're the clinician. 2 A. Right. 3 Q. You're the one that's responsible 4 for the care and treatment of Lillian Dailey at 5 that time; correct? 6 A. Correct. 7 Q. You're the one that needs to 8 interpret and compare the two results; correct? 9 A. Yes. 10 Q. In fact, in terms of her further 11 care and treatment, your interpretation of those 12 results is extremely important as it relates to 13 her health and well-being; correct? 14 A. Correct. 15 Q. So looking at the results, you, not 16 the radiologist, but you, the one that's seeing 17 the patient with a posterior wall uterine 18 fibroid doubling in size between December and 19 May of 2005, is that or is that not considered 20 to be rapid growth? 21 MR. RIEMENSCHNEIDER: Objection. 22 Asked and answered. 23 A. I only have to explain. I cannot 24 say yes or no. 25 Q. Go ahead, please. 0119 1 A. Any test is taken in consideration 2 along with the clinical symptoms, the exam. 3 There are so many other factors. We just don't 4 jump into a diagnosis based on one thing, and 5 this is just one thing. And we are already 6 watching and evaluating her. We are not just 7 dismissing her. 8 Q. We can agree, though, that that's a 9 significant growth in the fibroid in a short 10 period of time; correct? 11 A. If it is an accurate measurement. 12 Q. Did you have any basis to just say 13 when you saw her back after looking at the 14 ultrasound that this interpretation was 15 inaccurate? 16 A. I would have doubted because it's 17 not the same radiologist. 18 Q. Doctor, if you had reason to suspect 19 that this was misinterpreted, you had a duty, 20 didn't you, to contact the radiologist and make 21 sure that that fibroid tumor which had doubled 22 in size between December of '04 and May of '05 23 was interpreted incorrectly because it was by 24 two different radiologists as opposed to a 25 doubling in a fibroid tumor in a short period of 0120 1 time; correct? 2 A. Yes. 3 Q. You had a duty to make sure whether 4 this was technical differences or whether it was 5 a true doubling in tumor size; correct? 6 A. Correct. 7 Q. Because if it was a true doubling in 8 that fibroid tumor in a short period of time, 9 that has clinical significance; does it not? 10 A. Yes. 11 Q. And in a patient who hypothetically 12 is postmenopausal that has a doubling in a 13 fibroid tumor in a short period of time, that 14 would be consistent with uterine sarcoma; 15 correct? 16 MR. RIEMENSCHNEIDER: Objection. 17 A. I mean, I cannot make a diagnosis on 18 that. 19 Q. I'm not suggesting that you're 20 making a diagnosis, but it would be consistent 21 with a patient -- it would have to be within 22 your differential that the patient may have a 23 uterine sarcoma; correct? 24 A. Maybe. 25 Q. May have a uterine sarcoma; correct? 0121 1 A. Maybe. 2 Q. Certainly you didn't in your notes 3 when you saw the patient back in June, you 4 didn't hint or even suggest that uterine sarcoma 5 was even on your radar screen; did you? 6 A. It's always in the back of our mind. 7 Q. If it's in the back of your mind, 8 you need to make sure that those people that are 9 going to see the patient and are going to 10 participate in the care are aware of what's in 11 your mind; correct? 12 A. Right. 13 Q. Did you note anywhere in your 14 records that you were considering uterine 15 sarcoma or uterine cancer after you last saw 16 this patient in June of 2005? 17 A. There is a phone message where I 18 told her to come for surgical consultation. 19 Q. What did you tell her was what you 20 were concerned about at that time? 21 A. Any person who continues to bleed 22 regardless of what the results are needs to be 23 evaluated further. 24 Q. Did you indicate to any surgeon or 25 any doctor that you wanted her to be seen by 0122 1 that you had within your differential the 2 possibility of uterine sarcoma? 3 A. Needs to be seen, that's all. 4 MR. RIEMENSCHNEIDER: Answer his 5 question. 6 Q. Did you indicate -- I'll repeat it 7 again. 8 A. Yeah. 9 Q. Did you indicate to any doctors that 10 you communicated to that would be seeing her 11 that you had within your differential the 12 possibility that Lillian had a uterine sarcoma? 13 A. No. 14 Q. Certainly you had enough information 15 at that point in time in May and in June of 2005 16 to have considered uterine sarcoma within your 17 differential; correct? 18 A. No. 19 Q. Why? 20 A. Because fibroids can also become 21 big, benign fibroids. 22 Q. One has to rule out a malignancy 23 before one can conclude that the patient has a 24 benign fibroid tumor; correct? 25 A. I don't know how to answer that. 0123 1 Q. You have to rule out malignancy 2 before you can just conclude that it's a benign 3 fibroid tumor? 4 A. Because benign fibroid is very 5 common. 6 Q. Sure. It's the uterine sarcoma -- 7 A. Which is very rare. 8 Q. But if you have it in a patient that 9 is under your care and treatment, you need to 10 recognize what you're looking at; correct? 11 A. It's usually diagnosed at 12 hysterectomy. 13 Q. Sure. But clinically you're looking 14 for rapid growth in a fibroid; correct? 15 A. Right. 16 MR. RIEMENSCHNEIDER: Objection. 17 Q. And you're looking for pain? 18 A. Pain. She didn't have pain. 19 Q. Okay. 20 A. Because I have written it again 21 here. 22 Q. Which visit are you talking about 23 now, the June visit? 24 A. The June, yeah. 25 Q. Let's move to the June visit. I 0124 1 want to try to keep close to my indication that 2 we're a half an hour from finishing, the 3 emphasis on close. 4 The reason for this visit on 5 June 15th was to follow up on -- 6 A. The ultrasound. 7 Q. It says follow up cyclic Provera 8 therapy and pelvic ultrasound? 9 A. Yes. 10 Q. What were you following up on as it 11 relates to the cyclic Provera therapy? What 12 were you looking to determine? 13 A. To see whether there was any 14 improvement in the bleeding. 15 Q. According to your notes, and I'm not 16 going to read each and every note, but it 17 appears that she was still having irregular 18 bleeding; correct? 19 A. Yes. 20 Q. And the fibroid uterus, you now had 21 it described as a 14 week size? 22 A. Yes. 23 Q. What was the size when you had seen 24 her in May? 25 A. 12 week. 0125 1 Q. Is it of any significance that the 2 uterus now went from a 12 week to a 14 week in 3 roughly a month? 4 A. Like a pelvic exam, are you talking 5 about that? 6 Q. Tell me, you've got irregular 7 bleeding as one of your diagnoses and you marked 8 down the fibroid uterus was now a 14 week size 9 on June 15th. It was a 12 week size on May 22nd 10 or whatever the date was, May 4th. 11 Is that of any clinical significance 12 in this patient that the uterus was now larger? 13 A. Well, on a pelvic exam in a very 14 obese person there's not much to distinguish 15 between a 12 and a 14 week size. 16 Q. Well, Doctor, in fairness, this is 17 the same obese patient that you saw about a 18 month ago and noted a 12 week uterus; correct? 19 A. Correct. 20 Q. If it was still a 12 week uterus, 21 the same obese patient that you're seeing, you 22 could have just as easily marked down 12 weeks; 23 correct? 24 A. Correct. 25 Q. The fact that you marked down 14, 0126 1 the fibroid uterus was larger, was it not, on 2 your pelvic exam? 3 A. I don't see a pelvic exam. 4 Q. Well, did you just pick a number? 5 A. No. I went by the ultrasound. I 6 went by the ultrasound results. 7 Q. So the ultrasound result is what you 8 based the 14 week size on? 9 A. Yes. 10 Q. On this visit she still had 11 irregular bleeding, and just going on to the 12 notes, you indicated no pelvic or abdominal 13 pain. That's a good thing; right? 14 A. Yes. 15 Q. Had mammogram, today going for 16 breast ultrasound? 17 A. Yes. 18 Q. Now, it says irregular -- 19 A. Menstrual period. 20 Q. -- menstrual periods? 21 A. Since one year since April. 22 Q. April 2004; correct? 23 A. Yes. 24 Q. Doctor, if she has irregular 25 menstrual periods, that is the same thing as 0127 1 saying irregular uterine bleeding; correct? 2 A. Yes. 3 Q. If she had irregular uterine 4 bleeding for one year, that would meet the 5 definition for postmenopausal; correct? 6 A. Not really because I'm still 7 considering this 12-2004 as a period. 8 Q. If we eliminate the 12-2004 as a 9 period, if you are wrong, hypothetically if 10 you're wrong -- 11 A. Right. 12 Q. -- and this 12-2004 bleeding was not 13 a period but was a continuation of irregular 14 uterine bleeding, and we then look at what you 15 have marked down here, irregular menstrual 16 periods one year since April of 2004, 17 hypothetically if December 2004 is not a period 18 and she has had irregular uterine bleeding since 19 April of 2004, is Lillian Dailey postmenopausal 20 by definition? 21 MR. RIEMENSCHNEIDER: Objection. 22 A. Not by definition. 23 Q. What would have needed to have been 24 included to have been postmenopausal? 25 A. If she didn't have any bleeding or a 0128 1 period for one whole year since April of 2004. 2 Q. No bleeding or a period? 3 A. A period. 4 Q. So irregular uterine bleeding after 5 she no longer has a period, a menstrual period, 6 she has to go without any abnormal bleeding? 7 A. Or period for one whole year. 8 Complete absence of bleeding for one whole year 9 and then start bleeding. 10 Q. Until then your definition is that 11 that patient is perimenopausal until you reach 12 that period of time? 13 A. Perimenopausal because -- 14 Q. Perimenopausal because? 15 A. Because the average age of menopause 16 is 45 to 55. 17 Q. What is inactive endometrium? 18 A. It's a benign condition. It's not 19 atrophic, but it's not overgrowth like 20 hyperplasia. 21 Q. Is it your suggestion that inactive 22 endometrium is of no clinical significance? 23 A. The significance is it's benign. 24 There is no cancer, no cancer of the 25 endometrium. 0129 1 Q. On page 4 of your notes, the O/E 2 again is objective exam? 3 A. On examination. 4 Q. On examination, I'm sorry. General 5 condition good? 6 A. Good. 7 Q. You noted her blood pressure and her 8 weight? 9 A. Yes. 10 Q. Then it says, and correct me if I'm 11 interpreting your handwriting wrong, it says 12 discussed ultrasound results? 13 A. Yes. 14 Q. From May 20, 2005? 15 A. Yes. 16 Q. Then you talked about the 17 measurements? 18 A. Yes. 19 Q. What is E dash not see? 20 A. That's the endometrial lining not 21 seen. I just copied from the ultrasound report. 22 Q. The fact that the endometrial lining 23 could not be seen, is that of any clinical 24 significance? 25 A. Sometimes in fibroids they distort 0130 1 the lining, just benign fibroids, so they have a 2 hard time measuring it. 3 Q. Is that also a finding that you 4 understand to be seen in patients who have 5 either uterine cancer or a uterine sarcoma? 6 A. In uterine cancer the lining will be 7 very thick, but uterine fibroids can distort the 8 lining so they cannot see it. 9 Q. In a patient who has a uterine 10 cancer or a uterine sarcoma, would you expect 11 the ultrasound not to be able to visualize the 12 endometrial lining? 13 A. I don't understand that. 14 Q. With the finding of the endometrium 15 or endometrial lining not being seen, would that 16 be something that would be consistent with, not 17 necessarily diagnostic of, but consistent with a 18 patient with uterine cancer or uterine sarcoma? 19 A. No. 20 Q. It wouldn't? 21 A. No. 22 Q. Your plan was to continue the cyclic 23 Provera; correct? 24 A. Yes. 25 Q. Day 1 to 14 of each month? 0131 1 A. Continue the menstrual calendar. 2 Q. And then you indicated return in 3 four to six months if -- 4 A. Irregular bleeding symptoms. 5 Q. Continue? 6 A. Uh-huh. 7 Q. That's a yes? 8 A. Yes. 9 Q. You indicated for her to see her 10 primary care physician? 11 A. For the fasting sugar elevated. 12 Q. Now, did you refer this patient to a 13 GYN surgeon? 14 A. I told her. 15 MR. RIEMENSCHNEIDER: Did you refer 16 her to a GYN surgeon? 17 THE WITNESS: Yes. 18 MR. RIEMENSCHNEIDER: On June 5th? 19 THE WITNESS: Not on this date 20 (indicating), but I told her on the phone. 21 Q. On this visit you didn't refer her 22 to a GYN surgeon? 23 A. Usually what is not written here I 24 tell them. I mean, everything I tell them may 25 not be recorded. 0132 1 Q. Certainly if you refer a patient at 2 the end of an office visit such as telling a 3 patient to be seen by her primary care 4 physician, a referral to a GYN surgeon would be 5 something that would be important? 6 A. But I was giving time like a couple 7 of months with the Provera. She hasn't had time 8 with the Provera. So what I usually say is give 9 it time for two or three cycles, and if you 10 continue to bleed you have to see the GYN. 11 Q. That plan of action wasn't outlined 12 in any way in your note from the June visit; 13 correct? 14 A. Not in this note, but in another 15 note it is. 16 Q. I'm talking about the June visit. 17 A. Right. 18 Q. When did you talk to her after the 19 June visit? 20 A. I didn't talk to her after that. 21 Q. What note are you referring to that 22 you referred her to a GYN surgeon? 23 A. It's a telephone. I can't find my 24 telephone where I told her in May about it. 25 There is a telephone thing. 0133 1 Q. This was before the June visit? 2 A. It was before the June visit and -- 3 Q. Doctor, there is a note -- again, in 4 order to be clear, there's a note on May 25, 5 2005? 6 A. Right. 7 Q. That says called home, no answer, 8 didn't leave message, CBC normal? 9 A. Not anemic. 10 Q. Non-anemic. Ultrasound, fibroid 11 uterus. Patient aware. Provera will show 12 effects after two to three months or can try 13 Aygestin? 14 A. That's another kind of progesterone. 15 Q. 10 milligrams for ten days in a 16 month. If medical treatment or a few months 17 fails, then consider surgical treatment. That's 18 the reference that you're making; correct? 19 A. Yes. 20 Q. Would you have been typing that into 21 the computer? 22 A. Yes. 23 Q. So this would have been a summary of 24 what you would have discussed with -- 25 A. Right. 0134 1 Q. Well, as I'm looking at this, quite 2 honestly I don't see where you actually talked 3 to the patient on that particular day from what 4 I'm looking at. Correct me if I'm wrong, but 5 what I'm looking at is you called, there was no 6 answer, you didn't leave a message, and then 7 this seems to be sort of your thought process 8 that you're noting, but I don't see where -- 9 A. About the surgical consultation? 10 Q. Doctor, let me finish. I don't see 11 where you indicated to the patient at that point 12 in time that you were thinking that if things 13 didn't work out over the next few months that 14 she should consider surgical treatment. 15 It appears that that note suggests 16 that this was in your mind, but I don't see any 17 evidence that you actually told the patient. 18 Now, if there is something, please, direct me to 19 it; okay? 20 A. Okay. So the next one after that -- 21 so then the next page. 22 Q. What does it say on the next page, 23 and what is the date and time just so we're 24 clear? 25 A. On 5-26 at 1:18 p.m. 0135 1 Q. It says, spoke to patient and 2 instructions and results given. Patient to call 3 primary care physician about -- 4 A. The fasting blood sugar. 5 Q. Doctor, maybe I'm not reading things 6 carefully, but where does this say that you told 7 the patient other than seeing the primary care 8 physician that she should have a surgical 9 consult? 10 A. I've written the patient aware. 11 Q. Come on, Doctor. Let's read this. 12 Patient aware, you're talking about back on 13 May 25 patient aware? 14 A. Yes. 15 Q. Patient aware of the ultrasound 16 fibroid uterus. Where does it say that when you 17 called home that you actually spoke to the 18 patient and conveyed your thought process that 19 she needed to see a surgeon if medical treatment 20 failed after a few months? 21 A. Because when she called back, it 22 looks like the nurse has talked to her. 23 Q. Okay. Whether you did or didn't 24 talk -- 25 A. Because it's written here. 0136 1 Q. Well, Doctor, what is written there 2 is written there. That you and I can agree 3 upon. What the interpretation of that is and 4 what was conveyed may be an issue of fact. 5 But my question to you is, you had 6 in May the concern that if she didn't respond to 7 medical management that she would need to have a 8 surgical consult; correct? 9 A. Right. 10 Q. What did you have in mind if medical 11 management didn't provide the appropriate 12 response? What kind of surgical treatment did 13 you feel Lillian would need? 14 A. We would have gone to the next step 15 of a D&C and hysteroscopy. 16 Q. Is there any reason as of May or 17 June of 2005 that you couldn't have told the 18 patient that she needs to have a surgical 19 consult now rather than in a few months? 20 A. I wanted the Provera to work for two 21 to three cycles. 22 Q. That's the only reason that you held 23 up? 24 A. I wanted the medical treatment 25 because she is high risk for medical. She's got 0137 1 diabetes and high blood pressure, and she's 2 going to go under anesthesia, and people can die 3 under anesthesia. 4 Q. Sure. You certainly had within your 5 thought process that she might have a uterine 6 cancer; correct? 7 A. If bleeding continues, we have to 8 find out. 9 Q. So within your radar screen or 10 within your thought process was the possibility 11 that Lillian Dailey might have uterine cancer; 12 correct? 13 A. Not for sure. 14 Q. I'm not saying for sure. It was 15 within your differential. It was one of the 16 possible explanations if she didn't respond to 17 medical treatment -- 18 A. Right. 19 Q. -- then you were concerned enough 20 that you talked about a surgical consult? 21 A. Right. 22 Q. You were concerned that Lillian 23 might have uterine cancer; correct? 24 A. I cannot come to that diagnosis. 25 All I can say is you have to be investigated 0138 1 further. We don't have a diagnosis. 2 Q. Doctor, as a GYN that is trained to 3 recognize the signs and symptoms of uterine 4 cancer and the signs and symptoms of uterine 5 sarcoma, did you have within your differential 6 the possibility as of May 2005 that Lillian 7 Dailey might have uterine cancer? 8 A. The possibility is always there, but 9 we can have ten different diagnoses, and the 10 last one could be there. 11 Q. If the possibility of cancer exists, 12 that's something that needs to be closely, 13 carefully, and appropriately followed up on; 14 correct? 15 A. Correct. 16 Q. Failure to closely and carefully 17 follow up on the possibility of uterine cancer 18 can cause a delay in treatment of the uterine 19 cancer; correct? 20 A. Correct. 21 Q. Do you have an opinion, and you may 22 or may not, whether or not, and the reason I say 23 you may or may not have an opinion is because 24 you may or may not have reviewed sufficient 25 information to answer this, but do you have an 0139 1 opinion whether or not Lillian had in retrospect 2 uterine sarcoma as of May and June of 2005 when 3 you saw her? 4 A. No. 5 Q. No, you don't have an opinion, or 6 no, you don't believe she did? 7 A. No. She did not have. 8 Q. Okay. So you believe that she 9 developed uterine sarcoma sometime after you saw 10 her in June of 2005 and prior to her demise? 11 MR. RIEMENSCHNEIDER: Just let me 12 note an objection because in all fairness she 13 hasn't seen any subsequent records, pathology, 14 or reviewed any autopsy. 15 Q. Go ahead, Doctor. 16 A. I've only seen my notes. 17 Q. Right. Doctor, I'm going to show 18 you three documents. 19 - - - - - 20 (Thereupon, Plaintiff's Deposition Exhibits 1 21 through 3 were marked for purposes of 22 identification.) 23 - - - - - 24 (Discussion off the record.) 25 MR. RIEMENSCHNEIDER: I don't intend 0140 1 to get into causation aspects with her. She's 2 here as a factual witness based upon her care 3 and treatment. In all fairness, I've realized 4 what she has testified to. 5 But without seeing the medical 6 records, the pathology, do you still have an 7 opinion as to the causation, whether or not it 8 was present or not in May or June. 9 THE WITNESS: It wasn't. 10 MR. MISHKIND: That's fine. 11 MR. RIEMENSCHNEIDER: We're going to 12 take a break, and I want you to read that and 13 study it. 14 MR. MISHKIND: Let me indicate on 15 the record, the fact that you choose not to ask 16 her, she is a fact witness, but she's also 17 instrumentally, inextricably involved in the 18 care of this patient that ultimately died of a 19 uterine pulmonary sarcoma following the 20 hysterectomy, and I want to know from her, which 21 is very relevant to standard of care and 22 causation issues, whether or not she still holds 23 that opinion. 24 Q. After looking at what I'm going to 25 show you, and I'll let you study this, the CAT 0141 1 scan that was done in October of 2005, the 2 surgical pathology report from the hysterectomy, 3 as well as the findings in December of 2005, all 4 after you had last seen her, but given these 5 findings, which I'm going to let you study, I 6 want to know your opinion under oath whether 7 looking at this information whether in 8 retrospect back in May and June did she in your 9 opinion likely have uterine sarcoma? 10 It's going to be, yes, she did 11 likely have sarcoma, uterine sarcoma; no, she 12 didn't likely have uterine sarcoma; or I have no 13 opinion even after looking at this information; 14 okay? 15 A. So you want me to say that after 16 reading this? 17 Q. Exactly. I want you to read this, 18 and I want you to read this on your own. 19 A. How long? 20 MR. RIEMENSCHNEIDER: We're going to 21 take a break, and you're going to read it by 22 yourself. 23 MR. MISHKIND: Dirk, in fairness I 24 would hope that you would allow her to read 25 this, and there won't be any coaching off the 0142 1 record. 2 MR. RIEMENSCHNEIDER: I'm going to 3 let her read it, and then I'm going to confer 4 with my client. 5 MR. MISHKIND: The record will 6 reflect I certainly want her uninfluenced by 7 your coaching. You're going to talk to her 8 about it. She's already indicated that she 9 doesn't believe the patient had uterine sarcoma. 10 I'm not going to be privy to what you're going 11 to discuss with her, but the purpose is to get 12 her sworn testimony, her opinion, not your legal 13 theory. 14 MR. RIEMENSCHNEIDER: That's fine. 15 MR. MISHKIND: I would ask you not 16 to -- as an officer of the court, I'd ask you 17 not to provide her with suggestions as to how 18 she should answer. She should review this. 19 MR. RIEMENSCHNEIDER: Let's go. I'm 20 not going to suggest anything to her; all right? 21 In all fairness, if she's going to review it, 22 she's going to review objectively the records, 23 and if she thinks she has the expertise on the 24 pathology, then so be it. 25 MR. MISHKIND: Okay. 0143 1 MR. RIEMENSCHNEIDER: But in all 2 fairness without studying it, I certainly have 3 an opportunity and a duty to confer with her 4 about what she's going to testify to. 5 MR. MISHKIND: It's pretty clear 6 where we're going with this, but hopefully, 7 Doctor, you take as much time as you need. Read 8 this over. It should hopefully not take you 9 that long. Once you're done with that, I 10 absolutely have less than five minutes of 11 additional questioning if any. That's probably 12 the second piece of good news. 13 THE WITNESS: I don't know any of 14 this. 15 MR. MISHKIND: You go ahead and read 16 that. You're going to go with your attorney, 17 and we'll wait for you patiently. 18 (Brief recess.) 19 Q. Doctor, you have in front of you 20 what I think I previously identified as three 21 exhibits -- let me just if I can have them for 22 one second -- as Plaintiff's Exhibits 1, 2, and 23 3, and you have had an opportunity to read these 24 documents? 25 A. Yes. 0144 1 Q. Based upon these documents, I 2 believe I had asked you previously whether or 3 not you believe knowing what information became 4 known and available as of December and January, 5 December of 2005 and January of 2006, do you 6 have an opinion whether Lillian more likely than 7 not had uterine sarcoma back in May and June of 8 2005? First, do you have an opinion. 9 A. I don't know, but the endometrial 10 biopsy was normal, but I don't know the whole 11 story. 12 Q. So even looking at this, you're not 13 able to say to me that to a probability she had 14 uterine sarcoma back in May or June of 2005? 15 A. I don't know. 16 Q. I'm on the home stretch. I want to 17 just clear up a few things, and then we're going 18 to be done; okay? 19 A. Okay. 20 Q. You had just the two visits and 21 obviously the phone encounter that we talked 22 about. Are there any aspects of the visits in 23 terms of recommendations that you made to 24 Lillian in May or June that we have not already 25 talked about? 0145 1 A. It's my standard practice to talk to 2 all patients that if their problem continues 3 they have to come back. They should come back 4 and investigate further always. 5 Q. In your note in June of 2005, you 6 told Lillian that she should return in four to 7 six months if -- what does that say on page 4, 8 return in four to six months? Just to save some 9 time, where it says return in four to six months 10 (indicating)? 11 A. If irregular bleeding symptoms 12 continue. 13 Q. In the written note, you don't say 14 anything about her coming back sooner, but what 15 you've testified to is that that would be your 16 normal custom and practice; true? 17 A. Normal practice is if the problem 18 continues, they have to call back and come back. 19 And also my phone consultation, already I had 20 told her that she needs surgical consultation. 21 Q. Well, your phone consultation 22 concerning surgical consultation that we've 23 talked about, that will be interpreted by 24 others, but that was before this June visit? 25 A. Right. 0146 1 Q. Right? 2 A. Correct. 3 Q. So the June visit, when you last saw 4 her and she's getting ready to leave the office, 5 what you have noted in the record is return in 6 four to six months if irregular bleeding 7 symptoms continue; correct? 8 A. That is what I have written. 9 Q. Again, to be fair to you, what 10 you're saying is that your normal custom and 11 practice would be to tell a patient whether it's 12 Lillian or anyone else -- 13 A. Anyone. 14 Q. -- if they are continuing to have 15 problems -- 16 A. Problems. 17 Q. -- that they need to contact you or 18 perhaps someone else in the department? 19 A. Right. Come back much sooner or 20 even to the emergency room. I always say that. 21 Q. Fair enough. Is there anything else 22 that you recall in terms of conversations that 23 either you remember or would be your normal 24 custom and practice that we haven't already 25 talked about? 0147 1 A. Well, in my normal practice I would 2 say there are other physicians here, too. You 3 should see them. 4 Q. In fact, Lillian -- 5 A. Even though I might not have written 6 it, I would have said see Dr. Shuffer or 7 Dr. Green. There are three other physicians 8 there that are GYN. 9 Q. You didn't yourself discuss 10 Lillian's case after the June visit with those 11 doctors; did you? 12 A. No. 13 Q. In fact, as of June 2005, at that 14 point in time you didn't have on your radar 15 screen uterine sarcoma or uterine cancer as a 16 likely diagnosis; correct? 17 A. I mean, after reading this 18 (indicating), I don't know. 19 Q. No. 20 MR. RIEMENSCHNEIDER: He's going 21 back. 22 Q. Listen to what I'm saying. What 23 you're referring to as this are Exhibits 1, 2, 24 and 3, and that you didn't know at the time. 25 My question was, as of the last 0148 1 visit in June 2005, you didn't have uterine 2 cancer or uterine sarcoma as a likely diagnosis 3 for this patient's symptoms; correct? 4 A. Correct. 5 Q. There's no indication in the notes, 6 nor is there any recollection on your part that 7 you would have discussed Lillian's case with 8 Dr. Shuffer or any of the other doctors after 9 that visit, after the June visit; correct? 10 A. Correct. 11 Q. Is there anything else from your 12 custom and practice that you believe if you were 13 following your custom and practice you would 14 have done in May or June that we haven't already 15 talked about? 16 A. Nothing except explaining everything 17 to her. 18 Q. That's why I wanted you -- 19 A. Exactly. 20 Q. -- to tell me everything. 21 A. Tell her feel free to call us 22 anytime. Come in anytime. If the place is 23 closed, go to the emergency room. Always feel 24 free to do that. Always to all patients, don't 25 just wait because you are told to come later. 0149 1 If you have a problem or pain or hemorrhage, 2 just come in. 3 Q. You're not critical of Lillian; are 4 you? 5 A. No. 6 Q. Have I now given you an opportunity 7 to explain your custom and practice and those 8 things that may not be recorded in the record 9 but things that you would have normally done 10 with patients like a Lillian Dailey? 11 A. Yes. 12 Q. Looking at Exhibits 1, 2, and 3 13 which obviously show the uterine sarcoma, you 14 just don't have an opinion as to whether or not 15 she likely had uterine sarcoma back in May or 16 June; correct? You just don't have an opinion 17 one way or another? 18 A. Right. I don't. Right. 19 Q. Fair enough. Doctor, your first 20 experience with a deposition is about to 21 conclude. You're smiling. By that you're very 22 happy to hear me say that. 23 Have I been fair to you in terms of 24 explaining your involvement in the care of 25 Lillian Dailey? 0150 1 A. Mostly. 2 Q. Tell me in what respect I haven't 3 been fair to you. 4 MR. RIEMENSCHNEIDER: Objection. 5 Q. Remember, I told you at the very 6 beginning that I wanted to make certain that I 7 was fair and I gave you every opportunity to 8 explain things. Have I given you every 9 opportunity to explain what you did and why you 10 did things? 11 A. You did. 12 MR. MISHKIND: With that I thank 13 you, and we are now done. 14 MR. RIEMENSCHNEIDER: We'll reserve 15 signature. 16 - - - - - 17 (Deposition concluded at 2:15 p.m.) 18 (Signature not waived.) 19 - - - - - 20 21 22 23 24 25 0151 1 AFFIDAVIT 2 I have read the foregoing transcript from 3 page 1 through 150 and note the following 4 corrections: 5 PAGE LINE REQUESTED CHANGE 6 7 8 9 10 11 12 13 14 15 16 17 _____________________ 18 SHEILA VERGHESE, M.D. 19 20 Subscribed and sworn to before me this _______ 21 day of _______, 2008. 22 23 _____________________ 24 Notary Public 25 My commission expires ______________. 0152 1 CERTIFICATE 2 3 State of Ohio, ) 4 ) SS: 5 County of Cuyahoga. ) 6 7 8 9 I, Cynthia A. Sullivan, a Notary Public within and for the State of Ohio, duly commissioned and 10 qualified, do hereby certify that the within named SHEILA VERGHESE, M.D. was by me first duly 11 sworn to testify to the truth, the whole truth and nothing but the truth in the cause 12 aforesaid; that the testimony as above set forth was by me reduced to stenotypy, afterwards 13 transcribed, and that the foregoing is a true and correct transcription of the testimony. 14 I do further certify that this deposition was 15 taken at the time and place specified and was completed without adjournment; that I am not a 16 relative or attorney for either party or otherwise interested in the event of this 17 action. I am not, nor is the court reporting firm with which I am affiliated, under a 18 contract as defined in Civil Rule 28(D). 19 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, 20 Ohio, on this 5th day of February 2008. 21 22 23 Cynthia A. Sullivan, Notary Public 24 Within and for the State of Ohio 25 My commission expires October 17, 2011. 0153 1 INDEX 2 DEPOSITION OF SHEILA VERGHESE, M.D. 3 4 BY MR. MR. MISHKIND: 3 5 6 7 Exhibits 1 through 3 were marked 139 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25