Free Motion to Preclude - District Court of Connecticut - Connecticut

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0082 1 2 VOLUME II 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE DISTRICT OF CONNECTICUT 5 ------------------x 6 LAURA GUIGLIANO, as Administrator : 7 of the Estate of Michael Guigliano, Deceased, and LAURA GUIGLIANO, : 8 individually, : 9 Plaintiffs, : Case No. 10 vs. : 3:02 CV 718 11 DANBURY HOSPITAL, J. BORRUSO, M.D., JOSEPH CATANIA, M.D., and : 12 DANBURY SURGICAL ASSOCIATES, P.C., : 13 Defendants. : 14 - - - - - - - - - - - - - - - - - - x 15 16 Continued deposition of MICHAEL B. 17 TEIGER, M.D., taken pursuant to the 18 Federal Rules of Civil Procedure, at the 19 Offices of Pulmonary Internal Medicine 20 Associates of Greater Hartford, 1000 Asylum 21 Avenue, Hartford, Connecticut, before Bonita 22 Cohen, a Registered Merit Reporter and Notary 23 Public in and for the State of Connecticut, 24 License Number 00041, on Friday, April 7, 25 2006, at 1:23 p.m. 0083 1 2 3 APPEARANCES 4 THE LAW FIRM OF JOSEPH LANNI, P.C. 5 Attorneys for the Plaintiffs Suites 6-8 6 138 Chatsworth Avenue

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Larchmont, New York 10538 7 (914) 834-6600 By: JOSEPH LANNI, Esq. 8 9 NEUBERT, PEPE & MONTEITH, P.C. Attorneys for the Defendant Danbury Hospital 10 13th Floor 195 Church Street 11 New Haven, Connecticut 06509-1940 (203) 821-2000 12 By: ERIC J. STOCKMAN, Esq. 13 RYAN, RYAN, JOHNSON DeLUCA, LLP 14 Attorneys for the Defendant J. Borruso, M.D. 80 Fourth Street 15 P.O. Box 3057 Stamford, Connecticut 06905-0057 16 (203) 357-9200 By: BEVERLY J. HUNT, Esq. 17 18 RENDE, RYAN & DOWNS Attorneys for the Defendant Dr. Kessler 19 202 Mamaroneck Avenue White Plains, New York 10601 20 (914) 681-0444 By: MICHAEL GRADY, Esq. 21 22 23 24 25 0084 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

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10 11 oOo 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0085 1 M I C H A E L B. T E I G E R , M.D., 2 recalled as a witness, having been previously 3 duly sworn, was examined and testified further as 4 follows: 5 DIRECT EXAMINATION 6 BY MR. LANNI: (Continued) 7 Q. Good afternoon, again, Dr. Teiger. Again, 8 feel free to refer to the hospital record or your 9 report or any other material before -- in responding to 10 my questions. Okay? 11 A. Thank you. I brought what I think are 12 complete copies of all the information that has been 13 given to me in this case. 14 Q. Thank you. 15 Dr. Teiger, do you recall seeing a nurse's 16 note in the chart for the morning of February 17th, 17 regarding elevation of the head of the patient's bed? 18 A. Is there a way you can refer to that 19 specifically rather than go through all the records 20 here today? 21 Q. Yes. I'm going to refer you to page 95 of 22 the chart. 23 MR. STOCKMAN: Just for ease of 24 reference, I'll let him use my book. 25 MR. LANNI: Absolutely. 0086 1 A. I have page 95 here. 2 Q. I'm going to draw your attention to the 3 nurse's note timed 6:45 a.m.

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4 A. Can you tell me whose signature that is? 5 Q. No, I cannot. But I'm going -- I'm going to 6 just draw your attention -7 A. I do see that note, but I'm not sure exactly 8 whose signature that is. 9 Q. Okay. 10 A. I believe it is not the signature of Maryann 11 Milleville; is that correct? 12 Q. It doesn't appear to be. 13 So, but anyway, my question was: With 14 respect to that particular note, do you recall 15 reviewing that in your review of the materials in this 16 case? 17 A. Well, to be honest, I don't have recollection 18 of reviewing it. I've read the note now. 19 Q. All right. In reviewing that note now, with 20 respect to the portion of the note that has the 21 notation "HOB" and an upgoing arrow, do you see that? 22 A. Yes, sir. 23 Q. Do you have an understanding of what that 24 refers to? 25 A. That would usually refer to head of bed 0087 1 elevation. 2 Q. Okay. And with respect to that particular 3 note, there's a sentence which appears to read, quote: 4 Encouraged to take deep breaths and HOB 5 elevated, end quote. 6 Do you see that? 7 A. Yes, I do. 8 Q. Okay. And with respect to that particular 9 note, do you have an understanding as to why the head 10 of the bed was elevated at that point in time? 11 MR. STOCKMAN: Objection. You can 12 answer. 13 A. I'm not sure what the question is, Attorney. 14 Q. Well, in reading that -15 A. In reading this note, the nurse is making 16 observations based on what she has seen. There's 17 usually filler information rather than information of 18 tremendous import. 19 Q. All right. My question is with respect to 20 this particular sentence, quote: 21 Encouraged to take deep breaths and HOB 22 elevated, period, end quote. 23 A. To me that would be standard nursing care for

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24 somebody who is post-op with abdominal discomfort. It 25 describes a patient who to me seems not terribly 0088 1 distressed, his oxygen saturation is reasonably good, 2 on 2 liters of nasal oxygen, which is not a lot of 3 oxygen supplement. She's describing him as 4 uncomfortable. He's encouraged to take deep breaths, 5 which would be the routine for somebody who is post-op 6 and you're trying to treat atelectasis. 7 Q. By the way, when had he last been operated on 8 as of this point in time? 9 A. The date of this note is 2/17, and his 10 operation was several days previous. 11 Q. Okay. 12 A. Remember, though, that during this time, he 13 had his abdominal difficulty with pseudomembranous 14 colitis, somebody felt he had a narcotic bowel, and his 15 chest x-ray identified atelectasis. So he was still in 16 the throes of what we would consider being ill in the 17 hospital. I believe I mentioned that in my deposition 18 when we met previously. 19 Q. Does this note indicate, though, to you that 20 the nurses elevated the head of this patient's bed? 21 A. It doesn't imply that at all. All it to me 22 says, it's an observation that the head of the bed was 23 elevated. Quite honestly, many patients' heads are 24 elevated in the hospital. 25 Q. The fact that he was encouraged to take deep 0089 1 breaths, does that have any particular significance to 2 you? 3 A. To me that just represents good nursing care 4 of somebody who is encouraging the patient to take deep 5 breaths, because that's what should be done in order to 6 improve ventilation, improve atelectasis. 7 Q. The fact that it's mentioned in the same 8 sentence, that he's encouraged to take deep breaths and 9 the head of the bed is elevated, does that indicate to 10 you that the nurses elevated the head of the bed, to 11 you, with respect to his respirations? 12 A. It doesn't, absolutely not. Again, I don't 13 put much importance on the flow of this note except to 14 say that the patient -- patient's nurse was doing her 15 job of observing the patient whose head of the bed was 16 elevated, and he was encouraged to take deep breaths. 17 This is not an alarming or concerning note,

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18 because it is short and to the point, and I think if 19 the nurse had any worries about difficulty, she would 20 have embellished much more than what she did. 21 Q. Now -22 A. Head of bed elevation is what I would expect 23 to see in a typical nursing note. 24 Q. Okay. With respect to this particular note, 25 at 6:45 a.m., there's -- there are two pulse oximetry 0090 1 readings; correct? 2 A. I noticed that, yes. 3 Q. And the first one appears to be what? 4 A. 89 to 90 -- 89 to 91 percent on 1 liter nasal 5 cannula is noted, and the oxygen saturation rises to 6 94 percent on 2 liters nasal cannula. 7 Q. And I take it you looked at this note, even 8 though you may not have a recollection of it, but I 9 take it you looked at this note when you formulated 10 your opinions in this case? 11 A. I'm sure that I did, yes. 12 Q. All right. And did you have an understanding 13 then or do you have an understanding now as to why the 14 oxygen flow rate was increased from 1 liter per minute 15 to 2 liters per minute at that time? 16 MR. STOCKMAN: Objection. You can 17 answer. 18 A. Do I have an understanding of why that was 19 done? 20 Q. Yes. 21 A. Because that would be proper medical care, 22 certainly proper nursing care, to increase the liter 23 flow so that the saturation was greater than 24 90 percent, because that is our standard of care. 25 Q. In other words, the -- your understanding is 0091 1 that the flow rate went from 1 liter per minute to 2 2 liters per minute to improve the oxygen saturation to 3 above 90 percent; is that your understanding? 4 A. I can't comment on what the nurse's thought 5 process was at that time. But I will comment that 6 standard of care would require somebody who sees an 7 oxygen saturation below 90 percent to try and 8 supplement that with additional oxygen. 9 We consider 90 percent and above to be 10 appropriately treatable. We would consider less than 11 90 percent to be appropriately treatable, and if

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12 somebody has a saturation of 89 percent, we would give 13 more oxygen to get that saturation higher. I'm sure 14 that's what the nurse thought, and appropriately. 15 I would point out that 1 liter, 2 liters of 16 oxygen is not a big intervention on our part. One or 17 2 liters describes FI 02 delivery of between 24 and 18 28 percent. Normal is 20 percent. Therefore, 19 supplement of 1 or 2 liters of oxygen, in our world, is 20 a small incremental increase in supplement. 21 If the patient was distressed, we would 22 consider 50 percent, 70 percent or a hundred percent 23 oxygen supplement to be a strong intervention. 24 Q. It is an increase, though; correct? 25 A. It's -- it's a small increase, yes, from 0092 1 1 liter to 2 liters. 2 Q. It appears to be an increase to elevate the 3 oxygen saturation to above 90 percent; is that correct? 4 A. Yes. And the fact that 1 liter increase in 5 oxygen raised the oxygenation from 89 to 94 percent 6 tells me that his lungs were working with a reasonable 7 degree of effectiveness. 8 Q. Okay. 9 A. He did not have refractory hypoxemia. 10 Q. As of the morning of February 17th, 2001, was 11 there any indication in the chart -- and I'm talking 12 about in the time that this patient was in the 13 hospital, up to and including February 17th of 2001 -14 was there any indication that the patient's abdominal 15 distention was having some impact on his ability to 16 breathe? 17 A. I think atelectasis was identified in this 18 gentleman, yes. 19 Q. And when you say that "atelectasis was 20 identified in this gentleman," are you saying that the 21 atelectasis was, in turn, caused or in some way was 22 caused, to some degree, by abdominal distention? 23 MR. STOCKMAN: Objection to form. 24 MR. TIMOTHY GRADY: Objection. 25 MS. HUNT: Objection. 0093 1 A. It's a well-known medical fact that abdominal 2 distention can be responsible for atelectasis. That's 3 normal pathophysiology. 4 Q. With respect to this particular patient, 5 would it be correct to say that the abdominal

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6 distention in some way contributed to the atelectasis, 7 which, in turn, contributed to his breathing 8 respiratory difficulties? 9 MS. HUNT: Object to the form. 10 MR. STOCKMAN: Objection. You can 11 answer. 12 A. I would rather answer that question in two 13 parts rather than have the sequence you described. 14 Q. Why don't we take the first part. 15 Would it be correct to say that in this 16 particular patient, abdominal distension in some way 17 contributed to atelectasis as of the morning of 18 February 17, 2001? 19 MR. TIMOTHY GRADY: Object to the form. 20 You can answer. 21 A. I would agree with that statement entirely. 22 Q. And would it be correct for me to say that as 23 of February 17th, 2001, the atelectasis had some impact 24 on his ability to breathe? 25 MR. STOCKMAN: Objection. 0094 1 MR. TIMOTHY GRADY: Objection. 2 MS. HUNT: Objection. 3 Q. Would that be correct for me to say? 4 A. Atelectasis, by definition, is impairment of 5 the ability to breathe to full capacity. 6 Q. So that would be yes? 7 A. I think the answer would be yes. 8 Q. Okay. Within the week leading up to 9 February 17th of 2001, was this patient on pulse 10 oximetry monitoring? 11 MR. STOCKMAN: Are you asking continuous 12 pulse oximetry monitoring? 13 MR. LANNI: No. Some type of pulse 14 oximetry monitoring. 15 Q. Was this patient on pulse oximetry 16 monitoring? 17 A. You're describing from the time he entered 18 the hospital on admission until the 17th, was pulse ox 19 obtained? The answer is yes. 20 Q. And within that week, I'm talking about -- so 21 let me restate the question. 22 A. Please. 23 Q. From approximately February 10th up to and 24 including the morning of February 17th, 2001, was this 25 patient on some type of pulse oximetry monitoring?

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0095 1 MR. STOCKMAN: Objection. You can 2 answer. I'm just concerned about the 3 implication that it's continuous. 4 MR. LANNI: I said "some type of." 5 A. I'm not sure whether you're questioning my 6 memory of the records that I've read, or was he being 7 monitored with pulse oximetry obtained from time to 8 time, and I saw pulse oximetry readings recorded on 9 this gentleman between the time of admission and the 10 17th. 11 Q. Okay. And in fact, as of the morning of the 12 17th, there's notations which indicate that he was 13 undergoing pulse oximetry readings; correct? 14 A. That's correct. And we've just discussed 15 those as part of the record here, yes. 16 Q. Within that same time frame, within 17 approximately February 10th all the way up until 18 February 17th of 2001, was this patient on what is 19 known as telemetry monitoring? 20 A. He was on a telemetry monitor, yes. 21 Q. Now, let me draw your attention to page 462 22 of the chart. 23 (Discussion off the record) 24 Q. I'm going to draw your attention to page 462 25 of the chart. It's in the physician's orders. I'm 0096 1 going to draw your attention in particular to an order 2 that is dated February 9th of 2001 at 11:30 a.m. Do 3 you see that? 4 A. Yes, I do. 5 Q. All right. And I believe that the top line 6 of that order reads, quote: 7 O2 NC prn to keep O2 greater than or 8 equal to 97 percent, end quote. 9 Do you see that? 10 A. I do. 11 Q. Do you have an understanding of what that 12 refers to? 13 A. Do I have an understanding of what that order 14 means? 15 Q. Yes. 16 A. Or why the order was written in response to 17 the patient's condition? 18 Q. No, no. I'm just asking you do you have an 19 understanding of what that order means.

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20 A. Yes, I do. 21 Q. What does it mean? 22 A. That means that the physician who ordered it 23 wanted to tell the nurse that she should be 24 monitored -- monitoring his oxygen saturation, and if 25 it falls less than 90 percent, then she gives him 0097 1 enough oxygen by nasal cannula to bring the oxygen 2 saturation up to or greater than 97 percent saturation. 3 Q. Okay. 4 A. It's a fairly unusual order to me and fairly 5 excessive, since 97 percent is not really absolutely 6 required for good patient care or good oxygenation, but 7 the doctor felt that he wanted to give this patient 8 enough. 9 Q. All right. And I take it that -10 A. I might have -- I didn't mean to intercede. 11 MR. STOCKMAN: Let him ask the 12 questions. 13 Q. Based upon the materials that you reviewed, 14 do you know if this order was ever discontinued? 15 A. To the best of my recollection, I don't know. 16 Q. Okay. Could you tell me, how would one 17 determine if oxygen saturation is maintained at greater 18 than or equal to 97 percent? 19 A. Can you repeat the question, please. 20 Q. Sure. How does one determine whether oxygen 21 saturation is kept at greater than or equal to 22 97 percent? How does one determine that? 23 A. One determines that by either a saturation 24 monitor or by blood gas testing. 25 Q. Okay. And same question would be, how would 0098 1 one determine if oxygen saturation was maintained at 2 90 percent or greater or less? How would one do that? 3 A. By the same methods. 4 Q. It would be either arterial blood gases or 5 pulse oximetry monitoring? 6 A. Correct. 7 Q. Would someone with specialized training be 8 needed to interpret pulse oximetry monitoring? 9 A. I'm not sure how to answer that question. 10 Specialized training, do you mean medical training? 11 Q. Some degree of medical training. 12 A. As opposed to a layperson? Of course. 13 Q. Who would that be?

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14 A. That could be a nurse; that could be a 15 respiratory technician; that could be a physician; that 16 could be a monitor watcher. 17 Q. When you say "a monitor watcher," are there 18 any other terms to describe such a person? 19 A. There are people employed by the hospital 20 whose job it is just to watch monitors, either 21 telemetry, remote pulse oximetry, EKG technicians who 22 watch rhythm strips, and they're technicians. 23 Q. All right. 24 A. So they're not -- so they are trained. They 25 are technical people, but their focus is to identify 0099 1 the numbers and trends. 2 Q. Would someone with specialized training be 3 needed to provide any medical intervention that would 4 be required to maintain oxygen saturation at or greater 5 than 97 percent? 6 A. You're talking about medical therapeutics, 7 and the giving of oxygen is medical therapy, and 8 by-directive therapy should be given by qualified 9 personnel. 10 Q. Such as what? 11 A. A physician, a licensed person who is 12 licensed to practice -- to give therapy. So a 13 respiratory therapist is licensed, a nurse is licensed, 14 a physician is licensed. A technician is not licensed. 15 Q. So to follow this particular order and 16 provide medical intervention by giving oxygen to 17 maintain oxygen saturation at or greater than 18 97 percent, it would have to be some licensed medical 19 personnel; would that be correct to say? 20 A. I can't think of a situation in a hospital 21 environment where that would not be correct. 22 Q. Okay. Looking at that particular order 23 regarding maintaining oxygen saturations, whether it's 24 97 percent or a similar order for 90 percent, who, if 25 anyone, was responsible for following that order? 0100 1 A. Medical orders are written for the support 2 personnel, which includes nurses and respiratory 3 therapists. Primarily the orders are written for 4 nurses, although an order like this, which is 5 respiratory related, might be delegated to the 6 respiratory therapy department. 7 Q. Okay.

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8 A. And in our hospital, respiratory therapists 9 would be qualified and would probably take the 10 responsibility of carrying out this order. 11 Q. If you could just turn to page 464 of the 12 chart. I'm going to draw your attention to a 13 physician's order dated February 10th of 2001 at 14 1:00 a.m. on page 464. Do you see that? 15 A. Yes, I do. 16 Q. Do you recall seeing that order when you 17 reviewed this chart and formulated your opinions? 18 A. I recall that a V/Q scan was done, and I 19 remember the results of the test. 20 Q. Do you recall that specific order, though? 21 A. To the best of my recollection, the answer 22 would be no. 23 MS. HUNT: What is the order? 24 THE WITNESS: The order reads, "number 25 69 V/Q scan," and that refers to a 0101 1 ventilation/perfusion lung scan in an attempt 2 to look for a pulmonary embolism. 3 Q. And there's a number 8 in that order; 4 correct? Do you see that a few lines down? 5 A. I believe that's 80, but it says "telemetry." 6 Q. Right. And what is your understanding of 7 that aspect of the order, the reference to telemetry? 8 A. In our hospital, telemetry refers to remote 9 monitoring of the patient's electrocardiogram. We have 10 remote telemetry in our hospital, and I assume that 11 that means the same. 12 Q. Okay. And in your review of the medical 13 records, is there any indication that this physician's 14 order with respect to telemetry was ever discontinued? 15 A. To the best of my knowledge, the telemetry 16 order was not discontinued. 17 Q. Okay. Now, with respect to telemetry 18 monitoring on this patient, would someone with 19 specialized training be needed to interpret telemetry 20 monitor readings? 21 A. Yes. 22 Q. Who would that be? 23 A. Again, I think it depends on the hospital 24 protocol, but generally telemetry monitoring is done by 25 people we call EKG technicians, whose job it is to read 0102 1 and report electrocardiogram strips which are obtained

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2 by the telemetry monitor. 3 Q. Do you know if there were nurses at 4 Danbury Hospital as of February 2001 who were trained 5 to read telemetry monitoring devices? 6 A. I can only give you my assumption, but I 7 can't tell you for a fact that they were specifically 8 trained. In any hospital that I've ever worked in, it 9 would be expected that nurses would have been able to 10 read, interpret and act on telemetry readings. 11 Q. And would someone with specialized medical 12 training be needed to provide any medical intervention 13 in response to telemetry readings? 14 A. The therapy and medical care of irregular 15 heart rhythms would be under the purview of a 16 physician. 17 Q. If there were a sudden change in a telemetry 18 reading that required medical intervention, who, if 19 anyone, would have the specialized training to respond 20 to that? 21 MR. STOCKMAN: Objection. You can 22 answer. 23 A. The physician. 24 Q. Anyone else? 25 A. I believe it is not the responsibility of the 0103 1 nurse to treat. The treatment of irregular heart 2 rhythms, if necessary, would be under the jurisdiction 3 and responsibilities of the physician -4 Q. Let me -5 A. -- alone. 6 Q. Let me give you a hypothetical. 7 If a patient was to be on telemetry, and the 8 telemetry indicated tachycardia, let's say in the range 9 of 150 beats per minute, what, if any, obligation would 10 the nurse or personnel monitoring that telemetry have? 11 A. It would be standard of care that the 12 nurse -- the nurse's responsibility would be to 13 identify that the rhythm is abnormal, to identify that 14 it is a potential problem and then to notify the 15 superior, who would be responsible for intervention, 16 and almost always that would be the attending 17 physician. 18 When there is more than one physician, it 19 would be the appropriate physician to render a 20 treatment, which is to say that if it's an orthopedic 21 case, the person who managed the rhythm would be the

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22 cardiologist, the internist with experience, et cetera. 23 Q. All right. 24 A. But it would be the nurse's responsibility to 25 identify the abnormality and notify the appropriate 0104 1 person that treatment is necessary. 2 Q. Okay. If a patient is ordered to be on 3 telemetry, and that order is not discontinued, and 4 they're being transported to an area of the hospital 5 where there is no telemetry, how would one go about 6 monitoring that patient for determining if there was a 7 cardiac arrhythmia? 8 A. A judgment would be made prior to the 9 transport as to whether telemetry was necessary for the 10 period of time the patient might be in another area of 11 the hospital. 12 Q. So how would one -- if one wanted to continue 13 that type of monitoring, how would one do that? 14 MR. STOCKMAN: You're talking the 15 mechanism for implementing that? 16 MR. LANNI: Yes. 17 A. If it was determined that monitoring was 18 necessary, then the transportation would include 19 monitoring equipment. 20 Q. Such as a portable cardiac monitor? 21 A. Such as a portable cardiac monitor, portable 22 pulse oximeter, whatever might be felt necessary, given 23 the condition of the patient. 24 Q. I see. Now, with respect to this particular 25 order for telemetry, do you have an understanding as to 0105 1 who, if anyone, was responsible for following that 2 order? 3 A. The entire medical staff caring for the 4 patient has the responsibility for telemetry. 5 Q. That would be the nursing staff? 6 A. Well, the telemetry is instituted, and the 7 monitoring becomes a part of the patient's care. 8 Q. Okay. 9 A. Just as vital signs are a part of the 10 patient's care, intake and output. Telemetry is part 11 of the observation mechanism that the staff would be 12 responsible for. Sometimes the data is gathered by 13 nurses, and sometimes the data is gathered by 14 technicians, and sometimes data is gathered by nurse 15 assistants.

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16 Q. All right. 17 A. All of which is made available on the chart 18 for the physician's review. 19 Q. Well, who, if anyone, is responsible for 20 ensuring that this order is followed? This order for 21 telemetry. 22 A. The nursing staff. 23 Q. Could I have that page back, please. 24 (Witness complies) 25 Q. Between February 10th, 2001, when this order 0106 1 was -- the telemetry order was written, and up until 2 the morning of February 17th of 2001 -- when I say the 3 morning of February 17th, let's use as a cutoff 4 11:00 a.m., all right, which is the last nurse's note 5 in the chart -- was telemetry monitoring indicated for 6 this patient? 7 MR. STOCKMAN: As a medical matter or as 8 a matter of the order? 9 MR. LANNI: I'm sorry. You want to draw 10 a distinction between the two? 11 MR. STOCKMAN: Yes. 12 MR. LANNI: I'm asking him was it 13 indicated for this patient. 14 MR. STOCKMAN: Objection. You can 15 answer. 16 A. These days in hospital practice, as a matter 17 of trying to give the best patient care that we can, 18 telemetry monitoring is an additional step that's been 19 instituted by facilities to better monitor patients. 20 Similarly, the institution of pulse oximetry in the 21 hospitals is also a way of better monitoring patients, 22 with the idea of giving the best observation that we 23 can. 24 Telemetry was instituted in this patient, I'm 25 sure, as one of several measures to identify that the 0107 1 patient was monitored well, that his heart rhythm was 2 monitored along with his oxygenation. 3 Between the period of the 10th to the 17th, I 4 was impressed that there were no significant 5 identifications of life-threatening, abnormal, 6 irregular, dangerous heart rhythms identified by 7 telemetry. 8 Therefore, to answer your question, I think 9 that while telemetry was instituted correctly as a way

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10 to monitor the patient, it became an unnecessary 11 monitoring tool as time went on. Not to say that 12 irregular rhythms couldn't happen in the future, but 13 stability had been identified, in my opinion, for many 14 days as far as the cardiac rhythm was concerned. 15 Q. Now, given what you've just told me, are you 16 saying that within that time frame, from February 10th 17 through the morning of February 17th, up to and 18 including 11:00 a.m., that you're of the opinion 19 telemetry was not indicated? 20 A. I'd prefer not to have the question phrased 21 that way. Whether it's indicated or not is not the 22 issue. It's a mechanism of identifying stability in a 23 patient, and for that period of time, this gentleman 24 demonstrated cardiac stability. I think it was 25 probably not necessary, but I wouldn't use the phrase 0108 1 "not indicated." 2 Q. So are you saying that it was indicated? 3 MR. STOCKMAN: Objection. 4 MR. MICHAEL GRADY: I'll object. 5 A. I think that's a way of twisting the question 6 to get an answer that I'm still not comfortable with. 7 Q. You can't answer that question? 8 A. I think the gentleman demonstrated cardiac 9 stability for many days. Therefore, more likely than 10 not, the monitoring was not necessary. From an 11 indicated point of view, we take vital signs, and it's 12 a matter of routine, not whether it's indicated or not 13 based on his condition. 14 Q. Well, correct me if I'm wrong, but I believe 15 that you testified that the telemetry was a method to 16 determine if this patient was stable; correct? 17 A. As are vital signs. 18 Q. Right. 19 A. Correct. 20 Q. And would the same hold true for pulse 21 oximetry readings, that it's a method of monitoring to 22 determine if this patient is stable? 23 A. As are vital signs. The answer to the 24 question is yes. 25 Q. All right. Now, with respect to telemetry in 0109 1 this patient, would you agree with me that the 2 physician who ordered telemetry monitoring in this 3 patient believed that he needed such monitoring? Would

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4 you agree with that? 5 A. Again, I can't be sure what the thought 6 process was. I don't think that there was a concern 7 that his cardiac status was unstable and, therefore, 8 the patient should be on monitor. I believe the use of 9 the telemetry was a method of giving the patient better 10 observation in the year 2005 -11 Q. '1? 12 A. -- 2001, because we have the ability to do 13 that. 14 I might point out to you that the use of 15 oximetry is a relatively new use of monitoring, and the 16 oxygen saturation has been considered now the fifth 17 vital sign after temperature, blood pressure, pulse and 18 respirations. The use of oximetry now has become 19 standard of care. 20 We do have ability to monitor 21 electrocardiograms remotely because of technology, and 22 I believe this is another method of assessing patients 23 in the hospital. Whether it's indicated or not in this 24 specific patient I don't think is the question. 25 Q. Well, let me ask that question with respect 0110 1 to pulse oximetry. Between February 10th of 2001 and 2 up until the morning of February 17th, 11:00 a.m., was 3 pulse oximetry indicated in this patient? 4 MR. STOCKMAN: Objection. 5 MR. TIMOTHY GRADY: Objection. 6 A. In this specific case the answer is yes, 7 because he was identified to have respiratory problems 8 early on. He had a pulmonary consultant who identified 9 pneumonia. He had an abnormal chest x-ray, and he was 10 treated with antibiotics, and he was identified to have 11 atelectasis on chest x-ray. For all those reasons, 12 pulse oximetry would be indicated in this specific 13 patient. 14 Additionally, pulse oximetry is done on 15 patients who have no pulmonary difficulty whatsoever 16 just because it's a method of monitoring an important 17 organ which is responsible for good health. Oximetry 18 is done in emergency rooms as a matter of routine. 19 Q. Let me see if I have your opinion on the 20 issue of monitoring this patient clear. What you're 21 saying is that telemetry was indicated for this 22 patient, but not necessary, in your view; isn't that 23 correct?

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24 MR. STOCKMAN: Objection. That's not 25 what he's been saying for the last ten 0111 1 minutes. 2 Q. Well, what are you saying with respect to 3 that? 4 A. I'm saying -5 Q. I'm not clear on what you're saying. 6 MR. STOCKMAN: Objection. 7 MR. MICHAEL GRADY: Objection. Asked 8 and answered. Go ahead. 9 A. I'm saying the gentleman had no reason for 10 anybody to suspect a cardiac difficulty that would 11 require telemetry. I'm saying this patient -- there 12 was no indication that he had an irregular heart 13 rhythm, therefore, that he needed to be monitored. 14 I'm saying that telemetry, in my opinion, in 15 this case was used as a matter of course as another 16 method of identifying potential problems in a man who 17 was ill, and the technology was there. When you asked 18 me was it indicated, that would imply to me that there 19 was a cardiac problem that needed watching. 20 Q. Well, he did have tachycardia; correct? 21 A. He also had a fractured ankle, and he was 22 sick. So the answer is yes, he did have tachycardia. 23 Q. And in fact, he had tachycardia from at least 24 February 10th all the way through the morning of 25 February 17th? 0112 1 A. There were times where his pulse was above 2 100. 3 Q. Okay. And in fact, that's noted more than 4 once in the nurse's notes during that period of time; 5 correct? 6 A. Yes. 7 Q. Okay. And the fact that he has tachycardia 8 throughout that time, would that be something that 9 needs monitoring in some way? 10 A. Aside from taking the pulse, which would be 11 some way, the answer is maybe nothing else is required. 12 Q. All right. The fact that this patient had 13 tachycardia from February 10th through February 17th, 14 is that an indication for using telemetry to monitor 15 his cardiac status? Is that an indication? 16 A. In my opinion, not necessarily. 17 Q. The fact that a physician ordered oxygen,

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18 supplemental oxygen, to be given to maintain oxygen 19 saturations at or greater than a certain level -20 MR. TIMOTHY GRADY: Objection to the 21 form. That hasn't been established that that 22 was a physician's order. 23 MR. LANNI: It says "doctor's orders," 24 and I think that that's a safe bet that 25 that's a physician's order. 0113 1 MR. TIMOTHY GRADY: It's not. It says 2 ""P.A." 3 MR. LANNI: I understand. Cosigned. 4 Q. Let me restate the question. The fact that a 5 physician ordered that the patient's oxygen saturations 6 be kept at or above a certain percentage and that 7 supplemental oxygen be used to maintain that, if 8 necessary, would that indicate to you that someone 9 determined that some degree of pulmonary monitoring was 10 indicated in this patient? 11 A. Yes -12 MR. STOCKMAN: Objection. 13 MR. TIMOTHY GRADY: Note my objection. 14 A. Yes, it would. 15 MR. STOCKMAN: When there's a logical 16 break point, can we take a two-minute break? 17 (Discussion off the record) 18 Q. Have you ever used the term "labile oxygen 19 saturations"? Have you ever used that term? 20 A. No. 21 Q. As of the morning of February 17th, 2001, did 22 this patient require supplemental oxygen to maintain 23 his oxygen saturations within normal range? 24 A. Yes. 25 Q. And did he require supplemental oxygen to 0114 1 maintain his oxygen saturation within normal range or 2 acceptable range from February 10th at least up until 3 the morning of the 17th? 4 A. Yes. 5 Q. By the way, what is your definition of 6 tachycardia? 7 A. My definition is the same that's in any 8 medical textbook, which is a pulse greater than 100. 9 Q. In a resting patient? 10 A. Of course. 11 Q. And, of course, you as a pulmonologist use

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12 the term "tachypnea"? 13 A. Yes, we do. 14 Q. What is tachypnea? 15 A. Increased respiratory rate. 16 Q. And is there a normal range for respirations 17 per minute in a healthy patient at rest? 18 A. Generally, we feel 12 to 14 to 16 breaths per 19 minute would be a normal respiratory rate in a resting 20 healthy person. 21 Q. Okay. 22 MR. STOCKMAN: Note my objection to the 23 question. 24 Q. With regard to this particular patient -25 MR. STOCKMAN: If they were healthy, 0115 1 they wouldn't be a patient. That's my 2 objection. 3 (Recess taken) 4 Q. In the note of 11:00 a.m. for the morning of 5 February 17th, there appears to be a notation that 6 reads, quote: 7 R-e-s-p, resp, 20 dash 24, end quote. 8 Do you see that? That's on page 96 of the 9 chart. 10 A. Yes, I do. 11 Q. What does that refer to, based on your 12 understanding? 13 A. That would be a nurse's report of respiratory 14 rate being between 20 and 24 breaths per minute. 15 Q. Is that within normal range? 16 MR. STOCKMAN: Objection. You can 17 answer. 18 A. It's slightly elevated. 19 Q. Given that this patient's abdominal 20 distention contributed to his atelectasis, could laying 21 this patient supine have any impact on his respiratory 22 status? 23 MS. HUNT: Object to the form. 24 MR. TIMOTHY GRADY: Objection to the 25 form. 0116 1 MR. STOCKMAN: Objection. You can 2 answer. 3 A. The answer is yes. 4 Q. In what way? 5 MS. HUNT: Objection.

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6 MR. STOCKMAN: Objection. 7 MR. TIMOTHY GRADY: Join. 8 A. It's normal respiratory physiology that the 9 best way to breathe is in the erect position. That's 10 when the lungs ventilate the best. 11 Q. Would that have held true for the morning of 12 February 17th of 2001? 13 MS. HUNT: Objection. 14 MR. TIMOTHY GRADY: Objection. 15 MR. STOCKMAN: Join. 16 A. That holds true for any physiological 17 position. People breathe better upright as opposed to 18 laying flat. 19 Q. If you could just pull out your report, 20 please. And in that report you state on page 3 at the 21 top, quote: 22 The nursing staff did not violate the 23 standard of care with regard to transport of 24 the patient to CT scan on February 17th 25 because the patient had been examined earlier 0117 1 in the day on rounds by several physician 2 observers and was felt to be medically stable 3 with regard to vital signs and examination, 4 period, end quote. 5 Do you see that? 6 A. Yes, I do. 7 Q. That's one aspect of your opinion -- your 8 opinions in this case concerning the transport of this 9 patient to CT scan; correct? 10 A. Yes, sir. 11 Q. All right. And when you say that "the 12 patient had been examined earlier in the day on rounds 13 by several physicians," what physicians are you 14 referring to? 15 A. I would need to go back to the records. 16 Q. All right. Why don't you go back to pages 95 17 and 96 in the chart. 18 MR. STOCKMAN: There's also -- there's 19 also another note -20 MR. TIMOTHY GRADY: It was out of order. 21 It's not out of order in the way it's been 22 given to us. 23 MR. STOCKMAN: That's on page 95 and 96. 24 MR. TIMOTHY GRADY: He just didn't write 25 his note at the time.

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0118 1 MR. LANNI: What are you referring to? 2 MR. TIMOTHY GRADY: Dr. Gray's note on 3 page 103. 4 MR. STOCKMAN: It's 95, 96 and 103. 5 MR. LANNI: That's right. 6 MR. STOCKMAN: It's actually from the 7 morning. 8 MR. LANNI: All right. 9 A. So, actually, you gentlemen have already 10 pointed out three physicians who saw the patient, 11 perhaps four, and my understanding from the deposition 12 of Nurse Milleville, that there is another physician 13 who saw the gentleman just one hour prior to his 14 transport to CT scan. 15 So there were several physicians observing, 16 apparently, who had seen this patient on the morning of 17 February 17th, 2001. 18 Q. And when you say from the deposition of Nurse 19 Milleville there was a gentleman who saw the patient 20 about an hour before his transport, first of all, do 21 you know who it is that Nurse Milleville is referring 22 to? 23 A. I don't have a specific recollection, but 24 having just reread her deposition, the discussion was 25 something about a physician that she discussed the case 0119 1 with around the time that she had given the Dulcolax 2 suppository. 3 Q. And -- do you recall if that was Dr. Kessler? 4 A. I believe it was not Dr. Johnson, so it may 5 have been Dr. Kessler. 6 Q. All right. Well, could you point out to me 7 where in Nurse Milleville's deposition she refers to 8 this patient -- I'm sorry, this physician being present 9 and discussing the patient with her one hour before 10 transport? 11 A. It was toward the end of the deposition. It 12 may take some time. 13 She refers to Dr. Kessler, Dr. Gray. 14 "Both physicians were in, saw him also, 15 Dr. Kessler, Dr. Gray, both, before he went 16 down." 17 Q. What page are we at? 18 A. We're on page 65 of the deposition. 19 "They didn't have any concerns with him

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20 leaving the floor to go." 21 I believe that's what I was referring to. 22 MR. MICHAEL GRADY: Did you say page 65, 23 Doctor? 24 THE WITNESS: Yes. 25 MR. MICHAEL GRADY: Thanks. 0120 1 A. I thought there may have been another 2 statement that she had an interaction with one 3 physician prior to the patient being transported, but I 4 may not be recalling it correctly. 5 Q. All right. 6 A. Nevertheless, the implication is that several 7 physicians had seen the patient on the morning of the 8 17th prior to him being transported. 9 Q. On page 65 of Nurse Milleville's deposition 10 or any other place in Nurse Milleville's deposition, 11 does she specifically state that Dr. Kessler saw the 12 patient an hour or so before he was transported down to 13 CT scan? 14 MR. STOCKMAN: Do you want to give him a 15 chance to review the deposition? 16 MR. LANNI: Absolutely. 17 (Pause in the proceedings) 18 A. There is a statement in her deposition on 19 page 19 where she is asked: 20 "Did you see Dr. Kessler on the unit 21 that day?" 22 She responds: "Yes." 23 The question was: "Where did you see 24 him?" 25 The answer was: "At the nursing 0121 1 station." 2 The question was: "Did he speak to you 3 about the patient?" 4 The answer is: "Yes." 5 The question is: "Do you recall what, 6 if anything, he said about the patient?" 7 The answer is: "Well, we both talked a 8 little. I talked with him, and he said it 9 looks like Michael, you know. I want you -10 I know he has the CAT scan coming. But I did 11 ask him -- I said, 'You know, he seems to get 12 respirations increase a little, you know, 13 positioning in bed. I did tell him he's on

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14 the monitor,'" et cetera. 15 I think the implication here is that 16 Dr. Kessler saw the patient. 17 Q. But would it be correct for me to say there 18 is no reference in this testimony by Nurse Milleville 19 as to exactly when Dr. Kessler saw the patient? 20 A. I don't want to be held to that statement, 21 because I'd have to read this with a fine-tooth comb, 22 but my understanding is that Dr. Kessler saw the 23 patient. 24 Q. I'm just saying you've cited page 19 and 25 page 20 of the deposition and page 65 of the deposition 0122 1 in which Nurse Milleville relates a conversation with 2 Dr. Kessler, and I'm just asking does she specify the 3 time that she had this conversation? 4 A. I can't answer yes or no. 5 Q. Why not? 6 A. Because I'd have to reread every page of the 7 deposition. At least in the pages that we referred to, 8 it does not say the times specifically that Dr. Kessler 9 or any other doctor saw this patient. 10 Q. Okay. 11 A. Although again, I, to the best of my 12 recollection, remember that there was an interaction 13 between the nurse and a physician about one hour before 14 the patient was transported. 15 Q. Can you tell me where that appears? 16 A. I can't at this point. 17 Q. Okay. On page 95, there's a surgery note 18 that appears; correct? 19 A. 95 of where, please? 20 Q. Of the chart. 21 A. Yes. 22 Q. All right. And are you under -- are you 23 under the -- withdrawn. 24 Are you of the understanding that this is 25 Dr. Catania's note? 0123 1 A. That does not look like the signature of 2 Dr. Catania. 3 THE WITNESS: Is it? 4 MR. LANNI: I initially thought that, 5 too. 6 (Discussion off the record) 7 MR. LANNI: Back on the record.

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8 Q. There has been testimony in the case that 9 that is Dr. Catania's signature. 10 A. Thank you. Amazing, but -11 Q. And that follows the 6:45 a.m. nursing note; 12 correct? 13 A. That is correct. 14 Q. Okay. And then there is Dr. Kessler's note 15 on the next page, on page 96, and that's at the top of 16 the page. 17 A. I see that note. 18 Q. Okay. And then after that is Nurse 19 Milleville's note at 11:00 a.m.? 20 A. I see that as well. 21 Q. Okay. If you could just turn to -- hold on a 22 second. If you could just turn to page 487 of -- 487 23 of the doctor's orders. There's an order for a 24 CAT scan by -- that is entered in there. Do you see 25 that? 0124 1 A. I'm looking for the number 478, 487. Oh, 2 page 487. 3 Q. I'm going to draw your attention to an order 4 that's dated February 17, '01. 5 A. Yes. 6 Q. And there's an order for a CAT scan of the 7 abdomen and pelvis; correct? 8 A. I see the order. 9 Q. Okay. And by the way, do you know what that 10 reference is to P.O. slash I.U.? 11 A. Yes, I do. It's I.V. 12 Q. It's I.V.? 13 A. Yes. And the reason that's written is 14 because the CAT scan is done of the abdomen and pelvis 15 with both oral and intravenous contrast, so I believe 16 the order is specific. And, in fact, P.O. I.V. 17 contrast on the next line. 18 Q. I see that. Okay. 19 A. So that's an I.V. 20 Q. All right. Great. Thank you. 21 And then there is -22 A. I do remember that the patient was given P.O. 23 contrast material. 24 Q. Okay. So there's a time -- there's a time 25 here indicating when this order was picked up; correct? 0125 1 A. May I?

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2 (Pause in the proceedings) 3 A. In our institution, we put in orders by 4 computer. We've been doing that for years, and we 5 haven't written orders in quite some time. 6 Q. Okay. 7 A. The timing here is not a hundred percent 8 clear to me. This may be when the nurse picked up the 9 order. This could be when the order was written. This 10 could be when the order was carried out. So I honestly 11 can't be sure by convention in this particular 12 situation what the time of 7:45 means. 13 Q. Okay. 14 A. There's also a time of nine on this order as 15 well. What is clear to me is that the time the order 16 was written is not placed, because it would be put in a 17 different location -18 Q. Well -19 A. -- so more likely than not this time refers 20 to when the order was transcribed. 21 Q. Would that indicate to you that Dr. Catania 22 saw this patient sometime at or before 7:45 a.m.? 23 A. I think that would be a fair assumption, yes. 24 Q. And now if you could just turn to the next 25 page of the physician's orders, that is page 488, and 0126 1 there's a note at the top of the page that's for 2 February 17th, 2001 by Dr. Kessler. Do you see that? 3 A. Could you help me with the signature, because 4 it certainly is illegible. 5 You can compare now. Without a doubt, this 6 is the signature of Dr. Kessler with the order written 7 at 9:15 a.m. 8 Q. Right. He timed the order 9:15 a.m.? 9 A. Yes, he did. He saw the patient, wrote a 10 note on February 17th, and there's an order written on 11 February 17th, which is timed when it was written. 12 Q. Nine -13 A. And the signature is that of Dr. Kessler. 14 Q. So would it be correct for me to say that 15 Dr. Kessler saw the patient at or about 9:15 a.m.? 16 Would that be correct for me to say? 17 MR. STOCKMAN: Objection. 18 A. I think the correct impression would be that 19 Dr. Kessler saw the patient at 9:15, because the order 20 would have been written when he saw the patient. 21 Q. Okay.

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22 A. And it should be noted that there is the time 23 of 9:40 written, which is probably the time the order 24 was picked up. 25 MR. STOCKMAN: Off the record for one 0127 1 second. 2 (Discussion off the record) 3 Q. Now, would it be correct for me to say that 4 both Dr. Catania and Dr. Kessler saw this patient 5 before Nurse Milleville wrote her 11:00 a.m. note? 6 A. I think that is correct. 7 Q. Now, when you write in your report that the 8 patient was examined by several physicians and, quote, 9 was felt to be medically stable with regard to vital 10 signs and examination, end quote, what do you mean by 11 that? 12 A. I think I have to ask you what do you mean by 13 what do I mean? 14 Q. Let me ask you this question: Are you saying 15 that Dr. Catania felt that this patient was medically 16 stable? 17 A. I think all the physicians involved felt that 18 the patient was ill. I don't want to get confused 19 between medical stability and well. From a stability 20 point of view, we're talking about cardiopulmonary 21 hemodynamics, vital signs, et cetera. It doesn't imply 22 that the patient is well. 23 In fact, we know the patient is not well, 24 because he's being sent for a test with significant 25 concerns that something is not right. I don't want to 0128 1 imply at any point that I feel this patient is well, 2 but when you ask me is he medically stable, that 3 implies that hemodynamics, cardiopulmonary status 4 appears to be, by all the data we have, as stable, what 5 we would call stable. 6 Q. Now, my question was a little bit different. 7 Are you saying that Dr. Catania was one of 8 the physicians who felt that this patient was medically 9 stable? 10 MR. TIMOTHY GRADY: Object to the form. 11 Q. Are you saying that in this statement? 12 MR. TIMOTHY GRADY: Object to the form. 13 A. I answered that question by taking the 14 implication of his notes. 15 Q. Right. Okay. You anticipated my next

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16 question, which is: What is the basis of that 17 statement? 18 A. The basis is, if the patient were not stable, 19 I think Dr. Catania would have written an entirely 20 different note -21 Q. Well, in Dr. Catania's -22 A. -- and would have raised significant concerns 23 that are not reflected in this note. 24 Q. Well, in Dr. Catania's note on page 95, does 25 he make any reference to the patient's vital signs, for 0129 1 instance? 2 A. He does not. 3 Q. Does he make any reference to an examination 4 of the patient other than an examination of the 5 abdomen? 6 A. I'm not sure we can even imply that he 7 examined the abdomen. 8 Q. Well -9 A. He observes that the abdomen remains 10 distended, which is an observation. He does not state 11 on his note that he palpated the abdomen, and there was 12 a finding. 13 Q. And there's no reference to him, to 14 Dr. Catania, listening to the patient's lungs? 15 MR. TIMOTHY GRADY: Object to the form. 16 Q. There's no reference in this note? 17 A. That's correct. 18 Q. And there's no reference in the note to 19 Dr. Catania listening to the patient's heart? 20 MR. TIMOTHY GRADY: Objection. 21 A. Again, that's correct. 22 Q. And with regard to the note that appears on 23 the next page, Dr. Kessler's note, what is it about 24 this note -- withdrawn. 25 Are you saying that Doctor -- that based on 0130 1 Dr. Kessler's note, Dr. Kessler believed that this 2 patient was stable, medically stable? 3 A. Again, that word is not written, so I can't 4 tell you all his thought processes. 5 Q. Would it be correct for me to say that 6 neither in Dr. Catania's note nor in Dr. Kessler's note 7 is the word "stable" used? Would that be correct for 8 me to say? 9 A. That is correct, because that is what the

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10 note says. 11 Q. In Dr. Kessler's note is there any reference 12 to the patient's vital signs? 13 A. There is not. 14 Q. Is there any reference to Dr. Kessler 15 examining the patient that date? 16 A. He makes a statement that "ileus continues," 17 so perhaps the implication is that he examined him, but 18 he did not write his physical examination on the note. 19 Q. So there's no specific indication that he 20 examined the patient; correct? 21 A. That is correct. 22 Q. And there's no statement in there that he 23 listened to the patient's lungs? 24 A. Again, correct. 25 Q. No statement in there that he listened to the 0131 1 patient's heart? 2 A. Again, correct. 3 Q. Now, going on -- continuing on with your 4 report, you give another reason for your opinion that 5 the nursing staff did not violate the standard of care 6 with regard to transporting this patient to the CT scan 7 by stating, quote: 8 There was no acute precipitous decline 9 in his condition on that day prior to his 10 transport, period, end quote. 11 Correct? 12 A. That's what I wrote. 13 Q. Okay. And when you make that statement in 14 your report, are you referring only to the date of 15 February 17th? 16 A. I'm referring to the entire flow of the case 17 since the patient was admitted to the hospital. 18 Q. On the 17th, in the morning, is there a 19 notation indicating that this patient had, to some 20 degree, shortness of breath on the morning of the 17th? 21 A. I think shortness of breath is referred to 22 several times during the patient's course. 23 Q. But my question is on the 17th. 24 A. One recollection I have is that shortness of 25 breath was referred to with regard to the patient's 0132 1 movement. 2 Q. Position? 3 A. Or positioning.

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4 Q. Right. In fact, it's the note of Nurse 5 Milleville at -- at 11:00 a.m. on the 17th; correct? 6 A. May I? 7 Q. Yes. Sure, if you want to turn to it in the 8 chart. 9 MR. STOCKMAN: I've got it. 10 Q. Do you have it in front of you? 11 A. The identical note is in front of me without 12 the highlighting. 13 Q. All right. And in fact, that note says or 14 makes reference to shortness of breath with position 15 change activity; correct? 16 A. Position change dash activity. 17 Q. Right. 18 A. Which means that when he moves, he's short of 19 breath. The implication is when he is not moving, he's 20 not short of breath. 21 Q. All right. Now, this patient, by the way, 22 had multiple fractures of his leg? 23 A. That is my understanding, yes. 24 Q. And in fact, he had two operations to repair 25 those fractures? 0133 1 A. Again, correct. By two different physicians. 2 Q. Right. And can we agree that this patient's 3 mobility was limited to some extent? 4 A. Would I agree with that statement? 5 Q. When you see the notation regarding shortness 6 of breath and you see position change as one of the 7 references to this shortness of breath, what is your 8 understanding of that? 9 A. I'm a pulmonologist, and I see shortness of 10 breath in the hospital all the time, and the reasons 11 can be multiple. My understanding is nothing more than 12 the patient was short of breath when he moved. That 13 does not imply a cause; that implies a physical 14 finding. 15 Q. I understand. 16 A. So my understanding of that is simply what it 17 states. He's short of breath when he moves. The next 18 step in the thought process would be why is that the 19 case. 20 Q. All right. So when you see shortness of 21 breath with position change, you're of the 22 understanding that he was getting shortness of breath 23 whenever he moved in any way?

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24 MR. STOCKMAN: Objection. You can 25 answer. 0134 1 A. I think I would rather not take this nurse's 2 statements too far out of context. She's an observer, 3 and she is not implying that every single position or 4 activity causes difficulty. 5 She's making an observation that shortness of 6 breath occurs when he does something. She is not 7 making a statement of degree. She's not making a 8 statement of intensity. She's just making an 9 observation, which is a helpful piece of information 10 for the physician to use. 11 Q. Well, that morning of February 17th, 2001, 12 from the first nurse's note at 3:45 a.m. up until 13 11:00 a.m., is this patient out of bed? 14 A. I believe there are times when he's gotten 15 out of bed, yes, to sit in a chair. 16 Q. I'm talking about that particular morning. 17 Do you see that? Can you show me that? 18 A. No, I can't. 19 Q. Well, could you go back over those notes, 20 those nurse's notes starting at 3:45 a.m., and show me 21 where he's out of bed? 22 A. Did I imply that he was out of bed? 23 Q. That was my question. My question was: Is 24 there anything that morning where it shows that he's 25 out of bed? 0135 1 A. I think you're confusing me with your 2 questions. Between the time of the 10th and the 17th, 3 I believe there were many times when he was out of bed. 4 Q. That's not my question. My question was a 5 little bit more specific than that. 6 I'm talking about from the morning of the 7 17th, from the first note there, from 3:45 a.m. up 8 until 11:00 a.m., is there anything in the nurse's 9 notes which indicate that he was out of bed? 10 A. I see nothing written that says that he was 11 out of bed. 12 Q. So would it be fair to say that whatever 13 position change was accompanying the shortness of 14 breath would be a position change within the bed? 15 MR. STOCKMAN: Objection. 16 Q. Would that be fair to say? 17 MR. STOCKMAN: Objection. You can

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18 answer. 19 A. Not necessarily, Attorney. 20 Q. Why do you say that? 21 A. Just because it was written doesn't mean it 22 didn't happen, but I understand all we have to go on is 23 these notes. 24 Q. According to these notes, would it indicate 25 to you that the position change which accompanied the 0136 1 shortness of breath occurred within -- while the 2 patient was in bed, based on these notes? 3 A. Based on my experience in the hospital, 4 that's not necessarily a fair assumption. Again, just 5 because the nurse doesn't write it doesn't mean it 6 didn't occur. For her to write down every activity 7 that a patient had would be too much to expect. 8 During the nighttime, if the patient was 9 uncomfortable, he might have gotten out of bed to the 10 chair. That would imply activity. In the morning of 11 the 17th, the nurse may have had him out of bed to the 12 chair or moved him to the commode or asked him to walk 13 to the bathroom to use the toilet. That would be 14 activity that would have identified shortness of 15 breath, but she may not have written it down. 16 So all I'm going to say is I can't say for 17 sure that the patient was only in bed, only had 18 activity in bed, and therefore, that's the type of 19 activity that we're talking about. 20 Q. Well, is there any specific reference in the 21 notes on the morning of February 17th, 2001 to this 22 patient having engaged in activity or engaging in some 23 type of position change outside of his bed? 24 A. There's nothing written by anyone to imply or 25 suggest that. 0137 1 Q. You cited Nurse Milleville's deposition 2 earlier. Do you remember whether she discussed or 3 testified about when he was exhibiting shortness of 4 breath with position change? 5 A. I do not recall that information 6 specifically. 7 Q. All right. Now, going back to your statement 8 that there was no precipitous decline in his condition 9 on that date prior to transport, we note that there's a 10 reference to shortness of breath on the morning of the 11 17th; correct?

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12 A. Correct. 13 Q. Okay. Is there a reference to shortness of 14 breath prior to the 17th, the morning of the 17th? Go 15 ahead. 16 A. To the best of my recollection, there were 17 comments about the patient being uncomfortable with 18 abdominal distention, and short of breath, and 19 difficult time breathing. 20 Q. All right. Let me draw your attention to 21 what I think you're referring to, and you can correct 22 me if I'm wrong. All right. 23 On page 93 of the chart, and I'm going to 24 draw your attention to a nurse's note of February 16th 25 of 2001, time 3:30 p.m., and halfway through that note 0138 1 there's a reference to the patient becoming short of 2 breath while sitting at the edge of bed. 3 A. I do remember reading this note, yes. 4 Q. So that's one reference to the shortness of 5 breath; correct? 6 A. There's also a reference that he did get out 7 of bed to use the commode. 8 Q. Right. 9 A. And there's also a reference to his oxygen 10 saturation of 89 percent on 1 liter. 11 Q. Right. 12 A. Which was 24 hours -- almost 24 hours before 13 the reference on the 17th. 14 Q. Okay. So, in any event, on the afternoon of 15 the 16th, he's short of breath while sitting at the 16 edge of the bed? 17 A. Correct. 18 Q. Okay. And I'm just saying that's one 19 reference to the shortness of breath that occurs before 20 the morning of the 17th; right? 21 A. Thank you for pointing that out. And there 22 may be others. 23 Q. In fact, I'm going to draw your attention to 24 another one. On page 91, there's a pulmonary note. 25 It's timed February 16th, 2001. And I believe it 0139 1 reads, quote: 2 Feels more uncomfortable today, and then 3 there's an upturned arrow SOB, secondary to 4 distended abdomen, end quote. 5 Do you see that?

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6 A. I do, and I think your reading of the 7 penmanship is absolutely correct. 8 Q. By the way, would you agree with this note, 9 that the shortness of breath here is in some way 10 contributing to -- or caused by the abdominal 11 distention? 12 MS. HUNT: Object to the form. 13 MR. TIMOTHY GRADY: Objection. 14 MR. STOCKMAN: Objection. 15 A. I think there's no way I can make that 16 assessment at all except to parrot what Dr. Kessler 17 says. 18 Q. Kotch, you mean? 19 A. Dr. Kotch, yes. I'm sorry. The 20 pulmonologist. 21 It would be logical to assume that the 22 abdominal distension was associated with his shortness 23 of breath, of course. I do note, and I believe that's 24 the interpretation of the penmanship, that he reports 25 that the lungs are clear, and the abdomen is distended 0140 1 and soft, and the assessment is stable pulmonary 2 status. 3 I can't read anything after that. But this 4 is the pulmonologist's note of the 16th. 5 Q. Now, is there any reference to shortness of 6 breath prior to the 16th that you saw? 7 A. You might have to help me with that, 8 Attorney. I don't recall any offhand, but there may 9 have been. I do know that the patient's abdomen was 10 distended for several days, and he was uncomfortable 11 for several days, and it was my understanding that that 12 discomfort affected his breathing. 13 Q. Okay. 14 A. He was, in fact, given intensive spirometry 15 to help him with his breathing, and that would be a 16 therapy to treat shortness of breath for abdominal 17 distention and atelectasis. 18 Q. I'm asking if you recall any description that 19 he had shortness of breath prior to the 16th and what's 20 noted in Dr. Kotch's note here. 21 A. The best way I can answer that is, to the 22 best of my recollection, I do not remember any other 23 references. 24 Q. When Dr. Kotch wrote "Patient stable 25 pulmonary status," did you have an understanding as to

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0141 1 what he's referring to? 2 A. Again, I think I tried to define stability as 3 best I could earlier, and Dr. Kotch probably has the 4 same understanding that I do. The patient is not well 5 but is stable in the hospital from -- in terms of vital 6 signs and hemodynamics, cardiopulmonary status. 7 Q. In other words, they're remaining roughly 8 within the same parameters? 9 A. If it helps you -- that's correct. If it 10 helps you, just to reference from a stability point of 11 view, I'll point out to you that he had an oxygen 12 saturation written by the nurse on the 16th of 13 89 percent with 1 liter, and he rose to 95 percent on 14 2 liters. This is a nurse who is identifying the 15 oxygen saturation on the 16th. 24 hours later, the 16 findings are essentially identical in that he has a low 17 oxygen saturation. 18 Q. On 1 liter? 19 A. On 1 liter. And then it rises again to 20 94 percent on 2 liters. 21 Q. Okay. 22 A. That to me is essentially stability. Not 23 well, but stability. And this is how I try and 24 describe to you that the patient seems to be stable in 25 that there's no precipitous change in his vital signs 0142 1 or oxygenation, at least in this 24-hour period, that 2 we can identify. 3 Q. Going back to your statement that there's no 4 precipitous decline in his condition, on the morning of 5 the 17th at 3:45 a.m., there's a reference to 6 inspiratory and expiratory wheezing. Do you see that? 7 Again, I'm going to draw your attention to page 95. 8 A. That's the note written by the nurse at 9 3:45 a.m.? 10 Q. Right. 11 A. Or it was timed 3:45 a.m. And I'm not sure 12 whose signature that is. 13 Q. And by the way, what is inspiratory and 14 expiratory wheezing? 15 A. These are sounds that are heard by 16 auscultation, and they imply some degree of 17 bronchospasm of the airways. 18 Q. Bronchospasm being what? 19 A. Constriction of the major airways, implying

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20 that there is a tightness of the breathing tubes with 21 difficulty air moving in and out. 22 Q. Could you get wheezing as a result of 23 compression of the lungs, to some degree? 24 MS. HUNT: Objection to form. 25 MR. STOCKMAN: Objection. You can 0143 1 answer. 2 MR. TIMOTHY GRADY: Objection. 3 A. Are you talking in general or in this 4 particular case? 5 Q. In general. 6 A. Generally that's not the finding one would 7 expect with abdominal distention, compression or 8 atelectasis. 9 Q. Well, with respect to th