Free Motion to Preclude - District Court of Connecticut - Connecticut

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0213 1 VOLUME III 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF CONNECTICUT ------------------x 4 LAURA GUIGLIANO, as Administrator : 5 of the Estate of Michael Guigliano, Deceased, and LAURA GUIGLIANO, : 6 individually, : 7 Plaintiffs, : Case No. 8 vs. : 3:02 CV 718 9 DANBURY HOSPITAL, J. BORRUSO, M.D., JOSEPH CATANIA, M.D., and : 10 DANBURY SURGICAL ASSOCIATES, P.C., : 11 Defendants. : 12 - - - - - - - - - - - - - - - - - - x 13 14 Continued deposition of MICHAEL B. 15 TEIGER, M.D., taken pursuant to the 16 Federal Rules of Civil Procedure, at the 17 Offices of Pulmonary Internal Medicine 18 Associates of Greater Hartford, 1000 Asylum 19 Avenue, Hartford, Connecticut, before Bonita 20 Cohen, a Registered Merit Reporter and Notary 21 Public in and for the State of Connecticut, 22 License Number 00041, on Wednesday, May 31, 23 2006, at 10:27 a.m. 24 25 0214 1 2 APPEARANCES 3 THE LAW FIRM OF JOSEPH LANNI, P.C. 4 Attorneys for the Plaintiffs Suites 6-8 5 138 Chatsworth Avenue Larchmont, New York 10538 6 (914) 834-6600 By: JOSEPH LANNI, Esq.

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NEUBERT, PEPE & MONTEITH, P.C. Attorneys for the Defendant Danbury Hospital 9 13th Floor 195 Church Street 10 New Haven, Connecticut 06509-1940 (203) 821-2000 11 By: MAUREEN SULLIVAN DINNAN, Esq. 12 RYAN, RYAN, JOHNSON DeLUCA, LLP 13 Attorneys for the Defendant J. Borruso, M.D. 80 Fourth Street 14 P.O. Box 3057 Stamford, Connecticut 06905-0057 15 (203) 357-9200 By: BEVERLY J. HUNT, Esq. 16 17 RENDE, RYAN & DOWNS Attorneys for the Defendant Dr. Kessler 18 202 Mamaroneck Avenue White Plains, New York 10601 19 (914) 681-0444 By: MICHAEL GRADY, Esq. 20 21 22 23 24 25 0215 1 A P P E A R A N C E S (cont'd) 2 3 HALLORAN & SAGE, LLP 4 Attorneys for the Defendant Joseph Catania, M.D. One Goodwin Square 5 225 Asylum Street Hartford, Connecticut 06103-4303 6 (860) 522-6103 By: TIMOTHY J. GRADY, Esq. 7 8 9 10 11

7 8

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12 13 14 15 16 17 18 19 20 21 22 23 24 25 0216 1 M I C H A E L B . T E I G E R , M.D., 2 called as a witness, having first been duly sworn 3 by Bonita Cohen, a Notary Public in and for the 4 State of Connecticut, was examined and testified 5 as follows: 6 CROSS-EXAMINATION 7 BY MS. HUNT: 8 Q. Dr. Teiger, my name is Beverly Hunt. I 9 represent Dr. Borruso. 10 As I said when were you sitting down, I'm 11 sorry for bringing you back. I know this is 12 becoming -- sort of getting in the way of what I know 13 your schedule is. 14 I think at your prior deposition you 15 indicated that in your opinion the respiratory arrest 16 preceded in time the cardiac arrest. Is that your 17 opinion? 18 MS. DINNAN: Do you have a page of the 19 deposition that you want to refer us to? 20 A. I would agree with that statement. 21 Q. Okay. And what's the basis for that opinion, 22 that the respiratory arrest preceded the cardiac 23 arrest? 24 A. I think the records indicated that he had 25 breathing difficulty first and he was gasping for 0217 1 breath. We don't know that ever for sure, but it would 2 be my opinion that the respiratory arrest preceded the 3 cardiac arrest. 4 Q. What you were referring to, we won't know for 5 sure -- the respiratory arrest preceded the cardiac

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6 arrest, is that what you were referring to when you 7 said "we won't ever know for sure"? 8 A. I think I was talking more in general terms. 9 When you're talking about a cardiopulmonary arrest, we 10 always struggle with which came first. In this 11 particular case, it's my opinion he had a respiratory 12 arrest first. 13 Q. Okay. 14 Q. In your opinion what was the cause of the 15 respiratory arrest? 16 A. I believe I said in my deposition earlier 17 that I felt it was multifactoral, but primarily he had 18 respiratory difficulty due to atelectasis associated 19 with abdominal distention from his pseudomembranous 20 colitis. 21 Q. All right. In your opinion, then, his 22 respiratory arrest resulted initially from respiratory 23 insufficiency? 24 MS. DINNAN: Objection to the form. 25 A. Could you restate that for me, please. 0218 1 Q. Yes. 2 In your opinion, then, the respiratory 3 insufficiency preceded the respiratory arrest? 4 A. I think he was struggling to breathe prior to 5 the arrest, yes. 6 Q. And by that you mean some degree of 7 respiratory insufficiency? 8 MS. DINNAN: Objection to the form. 9 A. I think we're saying the same thing. 10 Q. Okay. 11 Q. And when you say "respiratory insufficiency," 12 does that also equate to a particular design in oxygen 13 saturation? 14 (Pager interruption) 15 A. I'm sorry. Could you repeat the question, 16 please. 17 Q. Yes. 18 When you were talking about his breathing 19 difficulty, which we've established means some degree 20 of respiratory insufficiency, when there is use of the 21 term "respiratory insufficiency," do you mean by that 22 some significant degree of decline in oxygen 23 saturation? 24 MS. DINNAN: Objection to form. 25 A. I'm sorry, Attorney, I'm not sure if you're

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0219 1 talking in general terms -2 Q. Yes. 3 A. -- or specifically about this case. 4 Q. In general terms. 5 MS. DINNAN: Same objection. 6 A. I need you to restate the question, please. 7 Q. In this case, is it your opinion that the 8 patient experienced at or about the same tine of the 9 respiratory arrest a decrease in oxygen saturation? 10 MS. DINNAN: Now you're not talking 11 generally. You're talking about this case? 12 MS. HUNT: That's what I just said. 13 A. I'm confused. I thought we were talking in 14 general terms and then we were going to specifics. 15 Q. In this case -16 A. In this particular case? 17 Q. -- did this patient experience some degree of 18 decrease in oxygen saturation that led to his gasping 19 that you referred to before? 20 MS. DINNAN: Objection to the form. 21 A. I think, Attorney, that's a matter of record. 22 It was not my understanding that he did have a decrease 23 in oxygen saturation in the time preceding his 24 transport down to x-ray. 25 Q. I'm not talking about the time period before 0220 1 his -- I'm not talking really about the time period 2 before his transport down to the CT. I'm just talking 3 about the time just preceding the patient's respiratory 4 arrest. 5 In your opinion, did this patient experience 6 a decrease in oxygen saturation that resulted in his 7 gasping for breath that proceeded into, with time, his 8 respiratory arrest? 9 A. I'm sure the answer -10 MS. DINNAN: Objection for the record. 11 You can answer. 12 A. I'm sure the answer to that is yes. 13 Q. Okay. 14 Q. Do you have any opinion to a reasonable 15 degree of medical probability as to what that oxygen 16 saturation was that Mr. Guigliano experienced that 17 preceded the respiratory arrest? 18 A. I think it would be speculation and 19 impossible for me to answer that question.

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20 Q. In general terms, in a patient, outside of 21 Mr. Guigliano, but a patient who has many factors 22 impacting his respiratory status, what is the range of 23 oxygen saturation that would precipitate a process 24 evolving into a respiratory arrest? 25 MS. DINNAN: You're talking about 0221 1 someone with pseudomembranous colitis? 2 MS. HUNT: Right. 3 MS. DINNAN: Objection to the form of 4 the question. 5 A. Again, I think that's a difficult question to 6 answer. When you're talking about general terms, if 7 you're asking me what degree of oxygen saturation would 8 precipitate a cardiac arrest, it would depend on the 9 patient's underlying condition preceding. 10 Q. Assuming that this -- that a patient had all 11 of those factors that you had noted at your previous 12 deposition, the multifactorial picture that you alluded 13 to earlier here, and I think you mentioned in your 14 early -- and in an earlier deposition he had abdominal 15 distention, he had a fall, a fracture, pain and 16 swelling, pseudomembranous colitis, in a patient with 17 those factors, what would be the oxygen saturation, a 18 range, that would be expected to precipitate a process 19 evolving into a respiratory arrest? 20 MS. DINNAN: Objection to the form. 21 A. Again, Attorney, I'm not clear what you're 22 asking me. 23 This was a 52-year-old man who was generally 24 healthy. That's different than an 80-year-old man with 25 chronic obstructive pulmonary disease and coronary 0222 1 disease. A 52-year-old man can handle low oxygen 2 saturation better. However, he had multiple conditions 3 which caused his difficulty, including trauma from a 4 fracture, pseudomembranous colitis, which means that 5 his general condition was compromised. 6 So, when you ask me what oxygen saturation 7 would precipitate a cardiac arrest, I think the answer 8 to that question is possible. You need to remember 9 that oxygenation normally is in the range of 97 10 percent. Patients tolerate a level of 90 percent 11 without supplemental oxygen. When they drop into the 12 80s, they are struggling. 13 A healthy 52-year-old can tolerate low oxygen

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14 saturations in the 80s indefinitely if his underlying 15 constitution is okay. He cannot tolerate saturations 16 in the 70s or 60s or 50s for long periods of time. 17 There is not one single number I can give you 18 that would lead to a cardiac arrest in an otherwise 19 healthy 52-year-old. That data are not available. I 20 will tell you that oxygenation is important for life 21 and compromise will lead to organ system failure. 22 Q. All right. So you then don't have an opinion 23 to a reasonable degree of medical probability in this 24 case with this patient as to what oxygen saturation 25 precipitated his respiratory arrest? 0223 1 A. I would agree with that statement. 2 Q. There was a disclosure that's been discussed 3 at earlier depositions of a number of experts disclosed 4 on behalf of Danbury Hospital. It's dated 5 December 30th. You're one of the individuals who was 6 disclosed as an expert on behalf of Danbury Hospital 7 and the disclosure includes your report of 8 December 28th 2005. 9 Do you have that disclosure with you? 10 A. I do not have -11 MS. DINNAN: December 28, 2005. 12 A. The letter you're describing, I don't have 13 the disclosure, but I do have this letter. 14 Q. Okay. What did you bring with you today to 15 today's deposition? 16 A. I have a very limited number of records with 17 me -18 Q. Okay. 19 A. -- today. 20 Q. All right. And did your counsel tell you to 21 bring with you what we had enclosed in the notice of 22 deposition? We had asked that you bring with you a 23 copy of your CV, all of the original records concerning 24 this patient, your time records, your billing 25 statements. 0224 1 MS. DINNAN: For the record -2 Q. In part, were you asked to bring those 3 materials with you? 4 MS. DINNAN: For the record, we notified 5 the office of the deposition being taken 6 today on May 31. The notice is dated May 25. 7 I have brought his CV with the notice. We

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8 expected, as we had for the other 9 depositions, for him to bring the file. 10 There was a miscommunication about his file. 11 He thought the deposition for this morning 12 was for a different file. He has those 13 records which he keeps in his office which do 14 include some billing, and I have the exhibits 15 from the first two days of depositions. 16 MS. HUNT: Do you have as an exhibit, I 17 believe it was marked, the disclosure dated 18 December 28, 2005? 19 MS. DINNAN: I have his report. Yes, 20 here it is. 21 Q. Dr. Teiger, let me just place your report in 22 front of you. That was marked at a prior deposition as 23 Plaintiff's Exhibit 1, and on the first page of that 24 report, in the second paragraph, you were requested by 25 Attorney Stockman to provide opinions about the care 0225 1 rendered to Michael Guigliano by surgeons during the 2 postoperative course as well as hospital staff. 3 In reviewing the report, the only reference I 4 see to the surgeons is on page 3, and in the second 5 section there, it says, second sentence, you indicated 6 that you don't disagree that the patient was sick or 7 required the need for a CT scan to determine the cause 8 of the ileus. "I think that the CT scan was 9 appropriately ordered and this was a correct test to be 10 done considering the bowel difficulty he was having for 11 days." 12 In my reading of the report, that was the 13 only reference to the surgeons in this case, either -14 reference either to Dr. Borruso or Dr. Catania. Could 15 you, for me, take a look yourself at the disclosure or 16 letter of your opinion and verify for me that there is 17 no other reference to the surgeons in that report. 18 A. I think, Attorney, you'll have to be more 19 specific what you're asking me. 20 Q. All right. 21 A. Because my opinion in general includes what 22 the surgeons did with regard to this patient. 23 Q. All right. 24 A. So if you're asking me specifically about 25 surgical protocol, I'm not sure that I make any 0226 1 statement specifically with regard to that. However,

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2 I'm giving an overall opinion as far as management, and 3 that includes the surgical care of this patient. 4 So I have to be honest and tell you I'm not 5 sure what you're asking me. 6 Q. I'm asking you in that report of yours, the 7 letter which is dated December 28, 2005, is there 8 anything other than what I read into the record that 9 relates to the functioning of the surgeons in this 10 case? 11 A. I think the surgeons were responsible for the 12 patient's care and I'm giving you an opinion with 13 regard to his episodes. 14 Q. Okay. 15 A. So I think I am giving an opinion in general 16 with regard to the patient's care, and he was cared for 17 by surgeons. 18 Q. But I'm asking you about the report of 19 December 28th 2005. 20 Is there any reference or -- to the care of 21 the surgeons other than that reference on page 3? 22 A. I think, Attorney, you're asking me does my 23 report stand as my report, I think. I think you'd have 24 to be more specific. You're asking me a general 25 question about the overall report that I'm giving you 0227 1 and how it relates to the surgical care. I think 2 that's a confusing question. 3 Q. All right. I'm not asking you about prior 4 deposition testimony. I'm asking you about your 5 report. 6 For instance, your report refers to the code 7 situation, the CT suite, the CT scan technician, the 8 speed with which the code developed. On the top of 9 page 3 you're talking about nursing staff. 10 So what I'm asking you is in that report of 11 December 28th 2005, is there anything else that relates 12 directly to the care provided by the surgeons other 13 than that notation that I just read into the record on 14 page 3? 15 MS. DINNAN: Objection. 16 A. Attorney, I think -- I'm not the trying to be 17 difficult, but I think if you want me to give an 18 opinion there, you'll have to ask me specific 19 questions. I am not holding this report out as a 20 comment on surgical care of this patient. 21 Q. All right.

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22 A. I am holding this report out as an overall 23 opinion with regard to how this patient did. 24 Q. All right. 25 A. And the surgeons were involved with his care. 0228 1 Q. Let me ask you this: Based on the 2 disclosure, based on your disclosure, I am making the 3 assumption that at trial you will not be providing any 4 opinion to the extent that the surgeons deviated from 5 the standard of care; is that correct? 6 MS. DINNAN: Objection insofar as I 7 think he will be giving testimony regarding 8 abdominal distention. 9 A. I will do my best to try and limit my 10 testimony to my expertise, which is as a pulmonologist 11 and critical care physician, who practices taking care 12 of patients like this for 23 years. 13 Q. Okay. 14 A. But I will clearly maintain that I am not a 15 surgeon, and I don't have training as a surgeon, and 16 I'm not board-certified in surgery. 17 Q. Okay. So, at trial, then, it is not your 18 intent to provide testimony concerning whether the 19 surgeons in this case conformed or did not conform to 20 the standard of care? 21 A. I think I would point out to you, Attorney, 22 that the care of this patient is in the purview of both 23 surgery and medicine. This is a management of an ill 24 patient in the hospital, and that crosses lines of both 25 surgery and medicine. 0229 1 Q. But my question is simply this: At trial, I 2 take it from your disclosure you will not be providing 3 any opinion that the surgeons in this case deviated 4 from the standard of care; is that fair to say? 5 MS. DINNAN: Objection to the form. I 6 think what he's indicated, and he just 7 testified, that at times the management of 8 the patient may have crossed the line of 9 surgery and medicine. Insofar as the 10 surgeons may have exercised some role which 11 crosses that line, then he may in fact be 12 rendering an opinion regarding that. 13 Q. Doctor, can you answer that question? 14 A. I will do my best to answer any question 15 within the realm of my specialty in pulmonary and

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16 hospital-based medicine. 17 Q. All right. This is my question, because this 18 is the time that we have to elicit opinion testimony 19 from experts, and that's why I'm asking you this 20 question, because this is the time at which that sort 21 of process takes place. 22 My question to you is: Based on your 23 disclosure, I am presuming that you are not going to be 24 providing at trial testimony critical of the surgeons 25 in this case; is that fair to say? 0230 1 A. What you're not clear to me, Attorney, is 2 what the purview of surgical versus medical care is, 3 and I am not trying to be difficult in answering your 4 question, but I would suggest to you that the areas 5 that I'm giving opinion on may cross the lines of both 6 medicine and surgery, and by you asking me the 7 question, you are limiting my ability to answer 8 questions, and I'm not sure where you are drawing the 9 line between medical versus surgical care. 10 Q. You read the Danbury Hospital record, did you 11 not, that relates to the hospitalization with admit 12 date in February 2001 of Michael Guigliano, correct? 13 A. That is correct. 14 Q. And you read the depositions of both 15 Drs. Catania and Borruso, correct? 16 A. Correct. 17 Q. You know what roles they function in in this 18 case, correct? 19 A. I believe so. 20 Q. All right. So my question is this: Having 21 reviewed all of that material, I'm assuming from your 22 disclosure that you are not going to be providing 23 testimony at trial critical of the functioning of the 24 surgeons; is that correct? 25 MS. DINNAN: Again, I have to object. 0231 1 MS. HUNT: That's okay. Under 2 Connecticut rules you can state your 3 objection to form but it cannot be a speaking 4 objection. 5 MS. DINNAN: That's why I objected. 6 A. Unfortunately, Attorney, your question is too 7 broad for me to know how to answer it with any 8 accuracy, and again, I apologize if I seem difficult. 9 I just don't know how to answer this question.

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10 Q. All right. We will certainly deal with this 11 issue further at trial because your answer is not 12 responsive. 13 In this case, when did Mr. Guigliano begin to 14 require oxygen on a continuous basis? 15 MS. DINNAN: Do you need to look at the 16 medical records? 17 THE WITNESS: I think I'll need to look 18 at the records. 19 MS. DINNAN: Off the record. 20 (Discussion off the record) 21 MS. HUNT: I'll rephrase the question. 22 Q. During the hospitalization of Mr. Guigliano 23 in February of 2001, did he begin to require oxygen on 24 a continuous basis around the time of February 10th? 25 A. To be honest, Attorney, I have not looked at 0232 1 this record since we met last, which means that I would 2 have to go back and look through this entire record to 3 refresh my memory. I'd be happy to do that, but I 4 think that would be not possible at this time for me to 5 answer your questions specifically. If we need to do 6 that, then I'll need to come back and rereview all 7 these in careful detail to answer these specific 8 questions. 9 Q. All right. As of February 17th, 2001, was 10 this patient requiring in the morning time period, let 11 me just say 6:00 a.m., was this patient requiring 12 oxygen on a continuous basis? 13 MS. DINNAN: I'm going to also object to 14 the form. What do you mean by "a continuous 15 basis"? 16 Q. Was he receiving oxygen continuously or did 17 he have it on and take it off? Was it intermittent? 18 Was it prn? Was it ad-lib? What was his use of oxygen 19 during the morning hours? 20 THE WITNESS: Can we take a break for a 21 minute, please? 22 MS. DINNAN: Sure. 23 (Recess taken) 24 MS. DINNAN: On the record now. 25 In light of the fact that Dr. Teiger's 0233 1 office had given him a similar sounding name 2 to this case, but not this Guigliano case, he 3 had not reviewed the right chart prior to

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4 this deposition. We're going to reconvene 5 the deposition and the doctor is going to 6 commit sufficient time in order for the 7 defendants to do their cross-examination, a 8 full cross-examination. 9 MS. HUNT: Okay. And all counsel here 10 agree? 11 MR. LANNI: Yes. 12 MR. MICHAEL GRADY: Agreed. 13 MR. TIMOTHY GRADY: Agreed. 14 MS. HUNT: Thank you very much. 15 (Time Noted: 11:20 a.m.) 16 (Jurat follows on page 233) 17 18 19 20 21 22 23 24 25 0234 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF CONNECTICUT ------------------x 3 LAURA GUIGLIANO, as Administrator : 4 of the Estate of Michael Guigliano, Deceased, and LAURA GUIGLIANO, : 5 individually, : 6 Plaintiffs, : Case No. 7 vs. : 3:02 CV 718 8 DANBURY HOSPITAL, J. BORRUSO, M.D., JOSEPH CATANIA, M.D., and : 9 DANBURY SURGICAL ASSOCIATES, P.C., : 10 Defendants. : 11 - - - - - - - - - - - - - - - - - - xDS With the addition of the changes, if 12 any, indicated on the attached errata sheet,

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13 14

the foregoing is a true and accurate transcript of my testimony given in the above-entitled action on May 31, 2006.

__________________________ 15 MICHAEL B. TEIGER, M.D. 16 Subscribed and sworn to before me, the 17 undersigned authority, on this the _____ day of 18 _______________, 2006. 19 __________________________ 20 Notary Public 21 My commission expires: 22 23 24 25 0235 1 CERTIFICATE 2 3 I hereby certify that I am a Notary Public, 4 in and for the State of Connecticut, duly commissioned 5 and qualified to administer oaths. 6 I further certify that the deponent named in 7 the foregoing deposition was by me duly sworn, and 8 thereupon testified as appears in the foregoing 9 deposition; that said deposition was taken by me 10 stenographically in the presence of counsel and reduced 11 to typewriting under my direction, and the foregoing is 12 a true and accurate transcript of the testimony. 13 I further certify that I am neither of 14 counsel nor attorney to either of the parties to said 15 suit, nor am I an employee of either party to said 16 suit, nor of either counsel in said suit, nor am I 17 interested in the outcome of said cause. 18 Witness my hand and seal as Notary Public 19 this ______ day of _______________, 2006. 20 21 __________________________ Bonita Cohen 22 Notary Public 23 My Commission expires: November 30, 2007 24 25