Za 1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT ST. CLAIR COUNTY, ILLINOIS CASE NO. 13-L-9 JUDY KEEVEN, as Administrator of the ESTATE OF LINETTE KEEVEN, deceased, Plaintiff, vs. ST. ELIZABETH'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS, JACQUELINE RICKARD, M.D., HSHS MEDICAL GROUP, INC., PANDURANGA KINI, M.D., and PANDURANGA R. KINI, M.D., LTD., Defendants. / 1190 N.W. 95th Street Miami, Florida September 21, 2017 Wednesday, 9:20 a.m. DEPOSITION OF KENNETH C. FISCHER, M.D. Taken before Theresa M. Cohen, Florida Professional Reporter and Notary Public in and for the State of Florida at Large, pursuant to Notice of Taking Deposition filed in the above cause. - - - 2 1 APPEARANCES: 2 WEILMUENSTER LAW GROUP By: NATHANIEL O. BROWN, ESQUIRE 3 nob@weilmuensterlaw.com 3201 West Main Street 4 Belleville, Illinois 62226 On behalf of the Plaintiff. 5 NEVILLE, RICHARDS & WULLER 6 By: JAMES E. NEVILLE, ESQUIRE jneville@nrw-law.com 7 Five Park Place Professional Centre Swansea, Illinois 62226 8 On behalf of the Defendants Panduranga Kini, M.D. and Panduranga R. Kini, M.D., Ltd. 9 BROWN & JAMES 10 By: KEN BURKE, ESQUIRE kburke@BJPC.com 11 525 West Main Street Suite 200 12 Belleville, Illinois 62220 On behalf of the Defendants Jacqueline Rickard, 13 M.D. and HSHS Medical Group. 14 DONOVAN, ROSE, NESTER, P.C. By: JASON M. GOURLEY, ESQUIRE 15 jgourley@drnpc.com 201 South Illinois Street 16 Belleville, Illinois 62220 On behalf of the Defendant St. Elizabeth 17 Hospital. 18 19 20 21 22 23 24 25 3 1 INDEX 2 WITNESS DIRECT CROSS 3 KENNETH FISCHER 4 67 4 (Neville) (Burke) 5 91 6 (Gourley) 7 99 8 (Brown) 9 10 EXHIBITS 11 Defendant's Composite Exhibit No. 1 Page 4 12 (Supreme Court 213 Disclosure) 13 Defendant's Composite Exhibit No. 2 Page 4 14 (Case List for Depositions & Trials) 15 Defendant's Composite Exhibit No. 3 Page 4 16 17 18 19 20 21 22 23 24 25 4 1 THEREUPON: 2 (The documents were marked "Defendant's 3 Composite Exhibit Nos. 1-3 for Identification.) 4 tHE REPORTER: Raise your right hand. 5 Do you swear the testimony you're about to give 6 is the truth, the whole truth and nothing but the 7 truth? 8 THE WITNESS: Yes, I do. 9 KENNETH C. FISCHER, M.D. 10 called as a witness on behalf of the Defendants 11 Panduranga Kini, M.D. and Panduranga R. Kini, M.D., 12 Ltd., herein and, having been first duly sworn, was 13 examined and testified as follows: 14 DIRECT EXAMINATION 15 BY MR. NEVILLE: 16 Q Would you state your name, please. 17 A Dr. Kenneth C. Fischer. 18 Q Doctor, we have been provided, and I'm going to 19 ask you to identify it because we've already marked them, 20 what we call the Supreme Court 213 Disclosure in which you 21 are listed among others. We marked that as Defendant's 22 Composite Exhibit 1. 23 Have you seen this document before, doctor? 24 A No, I have not seen this. 25 I think there may be some parts of it referable 5 1 to me which I may have reviewed previously. 2 Q Yes. Starting on Page 5 you are identified and 3 it goes almost through nine. 4 A That aspect of it I've seen. 5 Q Then also attached in that as Exhibit A is your 6 CV which I think you told us is current. Is that right? 7 A Yes, sir, that is correct. 8 Q It says it's January 2017. 9 A That is correct, sir. 10 Q Then we've also marked as Defendant's Composite 11 Exhibit 2 a case list for depositions and trials which you 12 provided us today for the years -- it looks like it starts 13 with 2014 through -- 14 A Yes. 15 Q Through when? 16 A Through July 2017, so about three and a half 17 years. 18 Q Thank you. 19 A There's a couple this year which aren't in there. 20 One I can think of, but not much. 21 Q What would be the case you would add for this 22 year? 23 A I had one deposition in the case of Steve 24 Torrant, T-o-r-r-a-n-t, versus several different 25 defendants, including Dr. Imami, who I think was the main 6 1 one. I-m-a-m-i. 2 Q Who was the attorney that retained you in that 3 case? 4 A Michael Mullen. 5 Q Do you know where it was pending? 6 A Yes. Port St. Lucie, Florida. I'm not sure 7 which county that is. 8 Q I saw that in quickly looking at this case list, 9 doctor, that in April of 2017 you list a case where you 10 were retained by Colleen Jones from the Cook, Ysursa, 11 Bartholomew law firm. 12 A Yes, sir. 13 Q And that was a trial. Was that trial testimony? 14 A Yes, sir. 15 Q What was that case about? 16 A It was a lady who came to an emergency room in 17 southern Illinois with a TIA. 18 She then had a stroke during the course of her 19 first evening in the hospital which was not recognized and 20 she did not get TPA and was left with a residual deficit. 21 Q Have you had other cases for the Ysursa 22 Bartholomew law firm? 23 A I have. 24 Q Do you know how many? Are they listed here? 25 A Most of them don't go to trial or deposition. 7 1 It was the first trial I had with his firm. I 2 I've had several depositions with his firm. 3 There's one, Youroukos, Y-o-u-r-o-u-k-o-s, where 4 I had a deposition on that case, but it has not gone to 5 trial yet. 6 Q Youroukos? 7 A Yes, sir. 8 Q I was going to be the one handling that, but it 9 got dismissed. We were scheduled to come here and it got 10 cancelled. I don't know if you remember that. 11 A Yes. 12 Q Then the case got dismissed. 13 Is that listed in here, the Youroukos case? 14 A If I had a deposition, yes. If I didn't, it 15 would not be. 16 Q I think you gave a discovery deposition and it 17 was scheduled for your evidence deposition. 18 A Yes. 19 Q So what would be listed here is if you gave a 20 deposition, it would be listed in the year that you gave 21 the deposition? 22 A That is correct, sir. 23 Q Okay. I don't remember when you gave your 24 discovery deposition. 25 A It was probably either this year or last year. I 8 1 can't recall. 2 Q Have you been involved in any other cases for Mr. 3 Brown or Weilmuenster's firm? 4 A Three. 5 Q Including this one? 6 A Yes, sir. 7 Q Were the others before or after this one? 8 A This is the most recent case. 9 Q Have you given testimony in the other two cases? 10 A Yes. 11 Q Did you testify in court? 12 A No. It was settled. 13 Q Both cases were? 14 A Let me think about it. This was one case which 15 was not in your area. It was for some reason in Virginia, 16 but his firm handled it. 17 Q Are those other two cases listed in this list 18 here, doctor? 19 A I'm trying to think of the time. There was a 20 Jeffrey Sterling. I'm not sure what the year of that was. 21 If it was in 2014 or afterwards, it would be. 22 The other case I'm sure would be there. 23 Jacqueline Smith. 24 Q I just found that one. Okay. 25 MR. BURKE: Was the other case Jeffrey Wheeler? 9 1 THE WITNESS: Yes. That was the case that was 2 earlier. 3 MR. BURKE: You said Sterling. 4 THE WITNESS: Wheeler. Excuse me. I'm not sure 5 why I said Sterling. 6 BY MR. NEVILLE: 7 Q By the way, I found the Youroukos one. Your 8 deposition was in April 2016. 9 A Okay. 10 Q Have you been retained and involved in cases at 11 the behest of Tom Keefe? 12 A Yes. 13 Q How many? 14 A Probably two, but not in the last five years. 15 Q And did you give depositions in each of those 16 cases? 17 A I recall one at least. 18 Q Do you remember the name of the case? 19 A No, sir. 20 Q Or what it involved? 21 A One was a lady who was having seizures, was 22 diagnosed and it was dismissed. 23 There was something strange about this lady, and 24 after a while I told Mr. Keefe she wasn't on the up and 25 up. Something was inconsistent about her and I think he 10 1 dropped it. 2 Q Okay. 3 A There was another case, a stroke case. I just 4 don't remember the details. It was about seven or eight 5 years ago. 6 Q Then we've marked as Defendant's Composite 7 Exhibit 3 what looks like the bill that you gave us for, 8 I'm assuming, your time in this case thus far. 9 A Yes, sir. 10 Q Is it inclusive of all your time and/or payments 11 to you? 12 A The only thing it doesn't include is a conference 13 yesterday with Mr. Brown by phone for half an hour and I 14 did work over the last couple of days preparing for this. 15 I think the sum total for those two things that 16 would be $1,250 that's not included in this. 17 Q Okay. 18 A The payment for this deposition is included, but 19 the deposition is not included so it's like a credit 20 balance that will be wiped out by the end of the day. 21 Q What are your charges, doctor? 22 A The charges historically have been -- I changed 23 them, but I didn't change them in this case. I may change 24 it May '18, but this case is grandfathered in, so to 25 speak. 11 1 The charges are $500 an hour, or were, for review 2 of records, review of other materials, films, depositions, 3 whatever, and $800 an hour for conferences or depositions 4 or trial time. 5 Obviously if I go to southern Illinois, it's a 6 trip charge of $5,000 as opposed to an hourly charge plus 7 expenses like airfare and lodging. 8 Q So the 5,000, that would be per day of your being 9 in Belleville, let's say. 10 A Well, it's like this. If I went in for testimony 11 Tuesday morning and I flew in Monday night, I wouldn't 12 charge two days unless I testified for two days. 13 Even if it's more than 24 hours I don't want to 14 charge $5,000. 15 Q So $5,000 per day of testimony? 16 A Yes, sir, that's fair. 17 Q Plus expenses? 18 A Yes, sir. 19 Q So it's safe to say you were first contacted in 20 this case around November 12th, 2012 -- 21 A Yes, sir. 22 Q -- since that's the first time entry. 23 A Correct. 24 Q So total charges up to the prep time of 1,250 and 25 up to the start of this deposition then is $7,670? 12 1 A Yes, sir. 2 Q When did you first get involved in medical-legal 3 matters like this, doctor? 4 A By like this you mean medical negligence cases? 5 Q Yes. 6 A Sometime I think in '77 or '78 is the first time 7 I had a case. 8 I had one group of legal cases before that which 9 were not medical negligence. 10 Q Do you have an estimate, doctor, of the total 11 number of cases you've been involved in? 12 A Of medical negligence? 13 Q Yes. 14 A Currently I get about a dozen a year. That's 15 been pretty consistent over the last twenty-five years. 16 That would put us to about 300. Before that I 17 did some, but it was less frequently. 18 So I would say 400 medical negligence cases over 19 forty years. 20 Q And of those number of cases, whatever they 21 total, 400 or so, doctor, what percent would you estimate 22 are at the behest of the plaintiff? 23 A That's evolved. Initially it was primarily for 24 the defense. 25 In the last twenty-five years it's become more 13 1 for the plaintiff. Currently it's about 90 percent for 2 the plaintiff. However, there's one little issue that's 3 come up. 4 Last year the State of Florida Supreme Court 5 ruled that people could sue for medical negligence in 6 shipboard cases. 7 I do quite a few maritime cases and I'm almost 8 always a defense witness and now those are considered 9 malpractice cases. 10 If you exclude that, it's about 90 percent 11 plaintiff. If you put those back in, then it becomes 12 almost half and half because I do more maritime cases than 13 I do pure medical negligence cases. 14 Q Have you, doctor, ever been or are you now 15 affiliated with any expert witness locating services? 16 A No, I am not and I have not been. 17 There's a company called IAS, International 18 Assessment Systems which does primarily defense work in 19 head injury cases. They have a web site and they 20 advertise. 21 I am their neurology consultant, but I don't 22 advertise in any way, shape or form, nor do I have any 23 listing with any services. I wouldn't call them a 24 service. They're a company which does brain injury 25 defense work primarily. 14 1 Q Have you ever, whether you volunteered for it or 2 not, been asked to review things by any expert witness 3 service? 4 For example, they sought you out instead of you 5 seeking them out. 6 A I don't recall that, no. 7 Q You may have just mentioned it and it went 8 through my head without stopping. 9 Have you ever advertised for your services? 10 A In 1993 for a period of four months. 11 Q And where did you advertise? 12 A Florida Bar News and Trial. 13 Q And why did you stop after four months? 14 A I got a very robust response. I wasn't 15 interested in spending more than a certain amount of time 16 doing this work as opposed to clinical practice. 17 Q What would you estimate, doctor, is the 18 percentage of your professional time devoted this type of 19 activity compared to clinical practice? 20 A Eighty percent of my time is in clinical 21 practice. 22 Twenty percent is all other things, including 23 this. It's other things as well. Teaching, voluntary 24 work, administrative work, but I'd say 15 percent probably 25 of my time is in review of medical records and litigation 15 1 work. 2 Q Have you given any testimony, doctor, in any 3 cases similar to the issues in this Keeven case? 4 MR. BROWN: Object. Vague. 5 THE WITNESS: I'm assuming an undiagnosed 6 subdural. I'm trying to think about that. 7 I don't recall specifically. It's not 8 impossible. I just don't recall that to be the case. 9 BY MR. NEVILLE: 10 Q Okay. How many depositions would you estimate 11 that you give a year, doctor? 12 A About thirty. 13 Q And would the percent of those depositions for 14 the plaintiff be similar to 90, 95 percent that you talked 15 about before or would it be higher? 16 A I didn't say 95 percent. You did, but that's 17 okay. 18 Q Oh, I thought you said when you take out the 19 maritime -- 20 A No. Ninety percent. 21 Q When you put the maritime in then, what is it? 22 A Oh, it's 50/50 because maritime cases I'm 23 primarily a defense expert. 24 Q And you're getting as many of those cases -- 25 A More. 16 1 Q Oh, okay. I'm sorry. I misheard you. 2 A Pursuant to the Jones Act, I don't know the 3 reason for this, all these cases are tried in Miami 4 wherever these incidents occurred. 5 I just reviewed a case the other day a person was 6 injured on a ship in Hawaii and it's being tried in Miami. 7 I don't know why that happens, but it does. 8 This has become a center for litigation for maritime work. 9 Going back to your question, I do review more 10 than previously in the last year or so more defense 11 malpractice cases. 12 However, many of these cases are spurious and 13 after we review them and explain to the defense the case 14 is dropped. 15 So even though the percentage of cases I review 16 may be higher for the defense than they had been, the 17 percentage of depositions is still about the same, about 18 90 percent for the plaintiff. 19 Q Okay. 20 A Not including the maritime work. 21 Q Got you. And then in terms of trials per year 22 what do you estimate in court or by deposition in lieu of 23 in court? 24 A Oh, I see. A deposition for trial? 25 Q Yes. 17 1 A That's a rare occurrence. The only one I 2 remember recently is the Youroukos case, which actually 3 didn't happen. 4 This year it's been more. I think I've had eight 5 trials this year, which is unusual. Typically it's five, 6 or six or seven. This is the most I've had in memory. 7 Q What would you estimate is the percent of your 8 income derived from this activity compared to all others? 9 A Twenty percent. 10 Q Doctor, I showed you what we marked as 11 Defendant's Composite Exhibit 1 where you're listed. 12 You said you have reviewed that? 13 A Yes. 14 Q Were you involved in its preparation? 15 A Yes. In other words, I had a phone conversation 16 I believe with Mr. Weilmuenster and Mr. Brown. Mr. 17 Manning I think was involved in this case at some point in 18 time where we discussed my opinions after reviewing the 19 materials and they took notes. It was a phone 20 conversation. 21 This came by after that. In other words, they 22 did the writing, but it came after I had a long discussion 23 with them. 24 Q And then was it e-mailed to you for your review? 25 A It was e-mailed or faxed. I don't recall the 18 1 mechanism it was transferred to me. 2 Q Did you make any changes to what they prepared? 3 A I may have. I just don't recall that, sir. 4 If there were changes, they were minor changes. 5 There were no specific changes. They appropriately 6 reflected my opinions. 7 Q Doctor, in your CV you have some publications 8 listed. 9 Are any of them germane to any of the issues in 10 this case? 11 A No, sir, they are not. 12 Q Can you tell me a little bit about your practice, 13 doctor? 14 A I'm an adult general neurologist. That is to say 15 I don't see many pediatrics. I see some adolescents. I 16 don't see people below the age of twelve. 17 I see the whole gamut of adult neurological 18 disorders. However, I have a predilection to strokes 19 because the nature of the community I serve is primarily 20 African-American and Haitian American, which has a very 21 high incidence of stroke. 22 The incidence of stroke in this particular zip 23 code is one of the highest in the country. 24 I also have served and do serve as a stroke 25 director of different programs so I'm involved with stroke 19 1 on an everyday basis. 2 So I see more strokes than the average general 3 neurologist, but that's not the only thing I see. I see 4 seizures and migraines and back pain and neck pain and 5 neuropathy and so forth, but about 25 percent of my 6 outpatients are stroke and 50 percent of the inpatient 7 cases I see are stroke cases. 8 Q I didn't look, but does that contain the list of 9 your medical staff appointments, doctor -- 10 A Yes, it does. 11 Q -- in the CV? 12 How many hospitals or health facilities are you 13 on staff? 14 A I'm on staff at North Shore Medical Center, which 15 is the hospital just adjacent to this building. St. 16 Catherine's Rehabilitative Hospital. 17 Now I'm on the faculty at the University of Miami 18 and I teach at Jackson Memorial Hospital, but I don't see 19 patients there anymore. I haven't seen patients there in 20 the longest. In fact, I just changed my privileges about 21 a year or two years ago from courtesy to honorary. I can 22 teach there, but I don't admit patients or see consults 23 there anymore. 24 Similarly with the University of Miami Hospital. 25 It used to be called Cedars Medical Center. In fact, I 20 1 used to have my office, but I moved from there twenty-five 2 years ago and I changed my privileges last year or two 3 years ago to honorary there. Again, I can teach there, 4 which I do, but I don't see patients in that hospital 5 anymore other than teaching. 6 Q So where do you see patients in hospital other 7 than right next door? 8 A Well, St. Catherine's Rehabilitative Hospital, 9 but I don't admit them. I'll see them in consultation. 10 It's a stroke rehabilitative facility. 11 Q In your CV you've got listed under postgraduate 12 work experience 1993 to present, owner, Kenneth C. 13 Fischer, M.D., P.A. 14 Is that your clinical practice -- 15 A Yes, sir. 16 Q -- corporation -- 17 A It is. 18 Q -- so to speak? 19 Okay. And then you've got listed 1995 to 20 present, owner, Utopia Affiliates, P.A. 21 What is that? 22 A That's for medical, but non-clinical work. 23 Reviewing legal cases, doing evaluations for 24 quality assurance for hospitals and the government and 25 things of that sort, governmental work I do. 21 1 Q So the work you're doing and did in this case for 2 the medical-legal aspect of this case would come under the 3 Utopia Affiliates? 4 A Yes, sir. 5 Q And then 2014 to present is owner of the Thurston 6 Group. What's that? 7 A My late wife was a Ph.D. in social work and she 8 had a very successful concern doing review of social 9 programs with Federal, State and local governments and she 10 passed away four years ago. 11 She asked me to take on that business that had 12 existing contracts so her employees would have jobs. It's 13 very hard to get jobs in social service now. 14 Surprisingly, in fact, that's continued up to now 15 that in the last four years I've had that responsibility. 16 The contracts keep on getting renewed. I think 17 it's ending this year, but I oversee these social workers 18 and we review programs for child abuse and stay in school, 19 things like that to make sure that the proper 20 administrative results are appropriate and the program 21 should be continued. 22 Q You kind of oversee it as the owner? 23 A Yes. 24 Q You don't actually do it, I assume. 25 A Well, I have MSWs, master's of social work go out 22 1 in the field, go to these programs. 2 They report to me. I review the material and I 3 sign off on the conclusions. 4 Q You're in practice here, doctor, by yourself? 5 A Yes, sir. 6 Q How long have you been in solo practice? 7 A Since February 1993. 8 Q Prior to that from '92 to '93 it's listed partner 9 in the Neurology Group. 10 Is that the group you were in? 11 A Yes. 12 Q How many neurologists were in it? 13 A Six. 14 Q And why did you leave that group? 15 A After Hurricane Andrew the city was in disarray. 16 Our practice had six neurologists, twenty-five employees, 17 four offices. 18 It was predicated on swift movement back and 19 forth. It was impossible to do that. One of our offices 20 closed for six months. 21 We all sat down and decided the best thing was 22 just to localize the practice, stay in different areas and 23 go out on our own so we did that. 24 Q So that group was only together for a year? 25 A Well, what happened was I joined that group -- 23 1 there were different names. 2 There were two doctors. Dr. Abel, A-b-e-l, and 3 Dr. Herskowitz, H-e-r-s-k-o-w-i-t-z who started the 4 practice in 1975. 5 I joined them in seventy-six. It was Abel, 6 Herskowitz & Fischer. Then it became Abel, Herskowitz, 7 Fischer & Gran. 8 Then it became Abel, Herskowitz, Fischer, Gran & 9 Martinez. 10 Then we a six person. We had too many names so 11 we made it Neurology Group. 12 Q So you were with essentially that group in its 13 expanding nature from '76 up until '93 -- 14 A Yes. 15 Q -- for all practical purposes? 16 Okay. You mentioned your academic appointment. 17 What is your position at the University of Miami School of 18 Medicine? 19 A Voluntary associate professor of neurology. 20 Q Were you ever, doctor, a full-time paid faculty 21 at University of Miami? 22 A Yes. 23 Q When was that? 24 A '75 and '76. 25 Q That was still during your training or no? 24 1 A No. After my training. 2 Q You finished your training when? 3 A June '75. 4 Q So you stayed on for a year after that? 5 A That is correct. 6 Q Okay. Tell me a little bit about that. You said 7 your voluntary faculty. How often do you teach and what 8 do you teach? 9 A I teach the months of April, August and December 10 every Wednesday in the clinic. 11 Q What clinic? 12 A The neurology clinic. 13 Q Okay. 14 A It's at Jackson Memorial Hospital. It's staffed 15 by people from the University of Miami School of Medicine. 16 They have three regular attendings and very few 17 voluntary attendings. Maybe there's one or two besides 18 me. 19 So there's four of us and there may be fifteen 20 residents. It's a huge clinic, big table like this and 21 residents will come out. They have a chart and they'll 22 take it one at a time. 23 I have Mr. Smith who's a 40-year-old with 24 seizures. We'll discuss the issues and we'll go in and 25 I'll examine the patient with the resident, come back out 25 1 and say, "Okay. Mr. Smith needs an MRI scan. He needs an 2 EEG. We'll start him on Phenytoin. We'll get blood 3 tests." 4 I give them advice and move on to the next 5 student -- next resident. These people are not students. 6 They're residents between their second and fourth years in 7 training, and I supervise them and we make decisions and 8 we discuss the issue. In other words, if it's seizures, 9 we'll discuss the seizure issues. If it's stroke, we'll 10 discuss the stroke issues. 11 It's a learning experience for them. It's a 12 service. These are basically impoverished patients we're 13 dealing with. 14 Q And the residents are neurology residents? 15 A Yes. Now, we do have in addition to neurology 16 resident we have internal medicine residents rotating 17 through, anesthesiology, neurosurgery, other people, but 18 it's primarily neurology residents and they may have an 19 additional resident with them who's observing. 20 Q You also have listed Ross University School of 21 Medicine. 22 A Yes. 23 Q Where is that? 24 A It's in the Caribbean. Was. It may have been 25 wiped out. 26 1 I have usually one or two students a month for 2 the last five years and they stay with me in the office. 3 They watch me. 4 Q Here? 5 A Yes. 6 Q Okay. 7 A They follow me to the hospital. They stay in my 8 office. They'll work 9:00 to 5:00 seeing patients with 9 me. 10 I teach them the exam. I teach them how the 11 neurological process evolves and at the end of the four 12 weeks I grade them. 13 Q Are they neurology residents? 14 A No. These aren't residents. These are fourth 15 year medical students. 16 Q Med students doing rotations? 17 A Yes, sir. 18 Q All right. Then there's also American University 19 of the Caribbean. 20 A Same thing. They're two different schools, 21 competing schools in the Caribbean administered by the 22 same people and I have students from one or the other or 23 both. 24 Q And, again, how frequently do you have -- 25 A Every month. 27 1 Q Is it usually one every month? 2 A One or two. 3 Q Well, we have one here. Is she one of those 4 students? 5 A Yes. The second one, he got sick. 6 Q And she's got a shorter coat so I'm assuming 7 you're a med student. 8 Doctor, you're Board certified in neurology. Is 9 that right? 10 A Yes, sir. 11 Q And do you have to renew? 12 A I do not. The renewal process started in 1994 so 13 it doesn't apply to me. 14 Q Are you Board certified in any other specialty? 15 A Yes. 16 Q What? 17 A Quality Assurance & Utilization Review and 18 credentialed in pain management. 19 Q Tell me about the Quality Assurance & Utilization 20 Review. 21 What is that and how did you qualify for whatever 22 it is you have? 23 A Sure. That is the physicians who have expertise 24 in reviewing the work of other physicians, of nurses, 25 other healthcare providers. 28 1 There's several pathways to become certified. 2 You can either take a two-year residency in that or you 3 have to show ten years of experience in doing that work 4 and take a written examination. 5 I chose the latter pathway. 6 Q If you do the two-year residency, who provides 7 the training? What specialty board? 8 A That's very rare that people take that. Two 9 years is a lot for that, but they had some program out in 10 southwest Florida for that. 11 Q Is that a board recognized by the American 12 Medical Association? 13 A No, sir. 14 Q Is that a board for medical-legal reviewers? 15 A No. It's basically for governmental stuff if 16 you're working for the State review boards or hospital 17 quality assurance, things like that. 18 Q American Academy of Pain Management. Tell me 19 about that. 20 A That is for people who have demonstrated at least 21 five years of work in a specialty related to pain. 22 Typically neurology, psychiatry, anesthesiology. 23 Show your qualifications to be Board certified in 24 one of those specialties plus taking a written 25 examination. 29 1 Q Are you actively involved in treatment, pain 2 management treatment? 3 A Well, not invasive pain management. I do some 4 minor procedures. 5 I don't do major blocks, things like that, but I 6 do outpatient pain management with physical therapy, 7 medication. Not with narcotics. I'm very conservative 8 about that. 9 Q Do you know Dr. Sprich, who is also disclosed as 10 an expert in this case? 11 A No, sir, I do not. 12 Q Have you prepared, doctor, any reports yourself 13 in this case? 14 A No, sir, I have not. 15 Q And any notes you have would be underlines or 16 something -- may I see just an example of that, doctor? 17 A Sure. Take a sample. 18 Q Thank you. I'm trying to think about how to deal 19 with this and I'm not sure I am going to deal with it, 20 actually. 21 Oh, you've got a little tab and you've just got 22 admitting diagnosis circled. That's the typical type of 23 note, if anything? 24 A Yes. I make stars sometimes. Things underlined. 25 Q But in terms of actually writing in the side 30 1 other than a star or an underlining you don't have 2 anything? 3 A No. 4 Q Then I don't need it. 5 MR. NEVILLE: I know we haven't been going that 6 long, but I need to go to the restroom. 7 (A brief recess was taken.) 8 BY MR. NEVILLE: 9 Q Doctor, if you could go open up that, I'm going 10 to go through your opinions now. 11 A Sure. That's fine. 12 Q It appears essentially they start on Page 6. 13 A Yes, sir. 14 Q Really they start on A. I guess A. Right? 15 A Yes, sir. 16 Q By the way, you said you looked at that and it 17 accurately reflects your opinions. Is that right? 18 A Yes, sir. 19 Q You were talking about diagnosis in small A 20 there, lower case, a closed head injury such as a subdural 21 hematoma commonly is diagnosed based on history, clinical 22 exam and radiographic exam. Is that correct? 23 A Yes. 24 Q Radiographic exam typically consists of CT scan, 25 would it not? 31 1 A Or MRI either one. 2 Q Between an MRI or CT scan which is considered the 3 more precise for diagnosis of a hemorrhage or bleed? 4 A It depends on the acuity of the hemorrhage. 5 For an acute hemorrhage CT is often preferable. 6 For a more chronic hemorrhage MRI is preferable. 7 Q There was a CT scan performed on January 1, 2011 8 which was negative for hemorrhage. Correct? 9 A That is correct. 10 Q Going to B you were talking generally about 11 subdural hematomas and typically they're of venous origin. 12 Is that right? 13 A That is correct, sir. 14 Q When present, doctor, a CT scan should show it, 15 shouldn't it? 16 MR. BROWN: Object. Vague. 17 THE WITNESS: Well, it depends on the size. 18 In other words, if it's very small, it may be 19 missed. 20 In addition to which it's a slow leak so you may 21 have a trauma, a CT may be accomplished and it may 22 not be demonstrative of the subdural hemorrhage, but 23 the leak will continue. If you repeat the scan after 24 a few days, then it may be demonstrated. 25 32 1 BY MR. NEVILLE: 2 Q If it's of sufficient size or magnitude so as to 3 be causing neurologic consequences, it would be able to be 4 visualized. Wouldn't you agree? 5 A Yes, sir, I would agree with that. 6 Q This particular CT scan was done, doctor, on 7 January 1, 2011. 8 Do you know how long after the history of falls 9 that it was done? 10 A Well, there were several different falls. 11 The fall which precipitated the admission to I 12 guess it was St. Joseph's Breese Hospital happened that 13 morning when Miss Keeven fell in the bathroom of her 14 facility and struck her head against a sink or something 15 of a hard surface. 16 It was done within hours and it was negative. 17 I've seen that scan and I agree with that interpretation. 18 Q I guess more my question is how many hours after. 19 We don't know when she fell. All we know is she was found 20 there. Correct? 21 A Yes, sir. 22 Q We don't know what she struck, if anything. We 23 just know she was found there. 24 A Correct. 25 Q So there's a presumption that she struck 33 1 something with her head by your previous answer. 2 A Yes. 3 Q What is the time then from the time that she was 4 found until the time the CT scan was done? 5 A I think it was like four, five hours. 6 Q And for all we know it could have been twelve 7 hours after she fell? 8 A I don't know how often she was assessed in that 9 facility where she was residing at that time. 10 Q You were also talking about with regard to the 11 diagnosis, history and I understand that. There's not a 12 whole lot I don't understand about that. 13 Clinical examination. From a neurologic 14 standpoint what would that consist of, doctor? 15 A Well, subdurals are insidious lesions. 16 They may have focal neurological dysfunction, but 17 often it's more subtle than with a stroke, and you may 18 have clouding of consciousness. You may have subtle 19 weakness on one side. You may have increased tone on one 20 side. 21 You may have a so-called what's called cortical 22 release signs, but a person may have a bilateral subdural 23 or a subdural which crosses the midline and causes 24 compression. May have findings of something called a 25 glabellar reflex or a snout or a suck reflex which 34 1 suggests frontal lobe disease. 2 Those are some of the things you may find with a 3 subdural. 4 Q Typically, though, doctor, as you mentioned, they 5 would be focal in nature, any neurological findings? 6 A You may have them. 7 Again, I'll stress this. Subdurals are very 8 insidious lesions and they may be much less pronounced on 9 exam despite the large size of the lesion. 10 In other words, a stroke typically causes much 11 more focality than a subdural does. 12 Q But if the bleed is on one side of the brain you 13 would expect the changes to be focal, not bilateral. 14 A Not necessarily. 15 Q I didn't say necessarily, doctor. 16 In this case do we know where the bleed was found 17 to exist? 18 A Sure. 19 Q Was it a bilateral bleed? 20 A No, but she had a right-sided bleed with crossing 21 over to the midline compression of the left side of the 22 brain. 23 So that's why in this particular individual she 24 had bilateral findings. Worse in the right hemisphere to 25 be sure. 35 1 Q Now, she was evaluated early on following the CT 2 scan after transfer to St. Elizabeth's Hospital. Correct? 3 A Yes. 4 Q And she was transferred on January 5 -- 5 A Yes. 6 Q -- 2011? 7 And there were some additional testing done 8 there, was there not, doctor? 9 A You mean cerebral imaging? Not until the 10th. 10 Q I'm not talking about imaging, but neurological 11 evaluations. 12 A I'm sorry. Yes, examinations. 13 Q She had an EEG, did she not? 14 A Yes, she did. 15 Q And that did not show any focal changes, did it? 16 A It was diffusely slow. It was bilateral. 17 Q Did you note whether or not it was similar to the 18 EEG she had previously, like years before? 19 A I've not seen the ones from years before so I 20 couldn't answer that question. 21 Q That would be fairly significant when you're 22 talking about being bilaterally slowed whether or not 23 that's a change from what she had. True? 24 A That would be helpful, yes. 25 Q We know she had significant preexistent 36 1 neurologic problems. Correct? 2 A Most certainly. 3 Q What is your understanding of what problems this 4 patient had? 5 A She had at age two or three what sounds like a 6 hypoxic encephalopathy resulting in mental retardation, 7 developmental delay and a seizure disorder and behavioral 8 disturbance. 9 Q And then thereafter what was her state, doctor, 10 up to, let's say, the year of her hospitalization at St. 11 Joseph's & Breese and transferred to St. Elizabeth's? 12 A She had chronic mental retardation. She had 13 arrested development. 14 She had a seizure disorder requiring 15 anticonvulsant treatment and a behavioral disorder 16 characterized as psychosis or schizophrenia. Different 17 monikers were given to her in that regard. 18 Q She had, doctor, a number of hospitalizations 19 over the two years or so prior to her presentation to St. 20 Joseph's & Breese and then transferred to St. Elizabeth's, 21 did she not? 22 A She did. 23 Q She had a chronic aspiration pneumonia problem, 24 did she not? 25 A That is correct. 37 1 Q She also had on transfer to St. Elizabeth's 2 Hospital on January 5, 2011 electrolyte imbalances? 3 A She did. 4 Q She had sepsis pneumonia? 5 A Yes. 6 Q She had encephalopathy thought to be due to 7 septic encephalopathy, did she not? 8 A She did. 9 Q Electrolyte imbalances can cause encephalopathy. 10 Correct? 11 A That is correct. 12 Q And she was nonresponsive -- 13 A Yes. 14 Q -- on admission? 15 A Correct. 16 Q What did you review, doctor, prior to the 17 formation of your opinions in this case? 18 A I reviewed the initial admission, the ER visit at 19 St. Joseph's & Breese Hospital and the CT scan of the 20 brain conducted at that time. 21 The readmission which occurred a few days later 22 when she was brought back to the facility. 23 The hospitalization at St. Elizabeth's Hospital 24 beginning January 5th, 2011 I think until February 2011. 25 The MRI scan of the brain that was performed on 38 1 January 10th, 2011. The subsequent multiple 2 hospitalizations in different facilities in 2011, 2012. 3 The outpatient records in 2011, 2012. Some 4 records of antecedent hospitalizations in 2010 for what 5 you referred to earlier as aspiration pneumonia. 6 Deposition testimony including that of her 7 sister, Dr. Keeven, the defendant doctors, Dr. Kini and 8 Dr. Rickard. 9 The deposition of Dr. Sudholt. 10 Q Sudholt. 11 A Sudholt, the pulmonologist. 12 Two nursing depositions. Miss Strong is one. I 13 forgot her name for the second. 14 I believe that's the only deposition testimony. 15 Q What about the records after the patient was 16 transferred from St. Elizabeth's Hospital? 17 A Yes. There were a lot of outpatient records of 18 various physicians. I have a box here of various 19 admissions to Barnes, St. Elizabeth's, other facilities 20 between February 2011 until her demise in 2012. 21 Q Did you review the records -- these are records 22 that I just recently obtained -- the Arbaugh records? 23 A It does not ring a bell. I'm sorry. I don't 24 recall those. 25 Q Dr. Scott Arbaugh? 39 1 A No, I don't recall that name. 2 Q From the records you did review would you agree 3 that she was described as having severe mental 4 retardation? 5 A We're talking about the antecedent records from 6 2010? 7 Q Yes. 8 A Yes. 9 Q I'm talking about her general state before any of 10 the -- 11 A Well, the sister says moderate. Some of the 12 records say severe. Some say moderately severe. 13 She was mentally retarded. There's no question 14 about that. 15 Q But I'm referring to the records as opposed to 16 the sister who gives a deposition in litigation. 17 A I've seen moderate and I've seen severe. I've 18 seen moderately severe. Somewhere in that ballpark. 19 Q She was also described at various times as being 20 psychotic? 21 A Yes. I've seen that. 22 Q Agitated frequently? 23 A Yes. 24 Q And having hallucinations? 25 A That is accurate, yes. 40 1 Q In the month or two prior to the history of all 2 these falls -- she had like nine falls in a couple of 3 month period of time, did she not, doctor? 4 A Yes, she did. 5 Q And over the two years or so prior to this do you 6 know how many falls she was described as having? 7 A I've seen the number nine listed. She could have 8 had more than that, but she was very ataxic. 9 Q Ataxic meaning what? 10 A Clumsy. 11 Q Okay. She also had some medication changes in 12 the month or two before all of this, did she not? 13 A There was a decision -- since her seizures had 14 been well-controlled, a doctor, and I'm not sure how you 15 pronounce it, Neman, N-e-m-a-n, a neurologist who had been 16 treating her, made the decision to try to reduce her 17 Phenytoin anti-seizure medicine and was tapering it in the 18 latter part of 2010. 19 I think that's the change you're referring to. 20 Q And that's when then seizures were found to be 21 increasing? 22 A That is correct. 23 Q I was talking about, doctor, the electrolyte 24 imbalances as being a known cause for encephalopathy. 25 What were the primary electrolyte imbalances 41 1 that she had? 2 A Sodium. Abnormal sodiums. 3 Q And hers were elevated. Correct? 4 A Yes. 5 Q Significantly elevated? 6 A Yes. 7 Q That, doctor, would result in further shriveling 8 of her already impacted brain, would it not, the sodium? 9 A When you say shriveling, it wouldn't cause a -- 10 it would cause a change in her mental status to be sure. 11 It would not cause typically anatomic changes in 12 the brain. 13 Q What does it cause to produce the mental status 14 changes? 15 A Well, if one has a sodium in the 150 range, which 16 she did, it would cause increased lethargy. 17 Q I was more looking at the cause, the biochemical 18 reason for that? 19 A Well, it may cause cerebral edema as a result of 20 that. If you have a marked electrolyte disturbance it 21 could cause cerebral edema. 22 I'll just leave it at that for now. 23 Q It wouldn't result in an actual shrinkage? 24 A No, it would not, sir. 25 Q It would be the opposite. Edema? 42 1 A It can cause edema, yes, if it were not 2 corrected. 3 Q Correct. I understand. What other electrolytes 4 were off? 5 A Her chloride was somewhat high. Her glucose was 6 somewhat high. 7 I believe at some point in time she had some 8 abnormal renal function as well. 9 Q I asked you about the history of falls. You saw 10 the number nine. That was apparently on the day she was 11 admitted to the ER -- 12 A Yes, sir. 13 Q -- or presented to the ER? 14 A Yes. This is the January 1st, 2011 visit. 15 Q There were two CT scans done. There may be a lot 16 of images. I'm not trying to suggest there were only two 17 images, but there was a CT of the head and also a facial 18 CT. 19 A Correct. I did not review the facial CT. 20 Q Okay. The subdural hematoma that was diagnosed 21 on January 10th, doctor, that did not cause herniation of 22 the brainstem, did it? 23 A No, it did not. 24 Q The patient's cisterns were wide open all around 25 the brain? 43 1 A They were. 2 Q You would expect, doctor, that if a subdural 3 hematoma is present, we talked about whether it extends 4 from one side to the other, in this instance it was on the 5 right side of the brain. Correct? 6 A Yes, sir. 7 Q You would expect that if it's going to cause 8 neurologic problems, that at a minimum they would be 9 reflective on the right side? 10 A Well, it would be a predilection for the right 11 side of the brain being more affected. 12 Again, in this particular instance there was a 13 shift of the brain of 1.1 centimeters right to left, so 14 the left side of the brain was impacted as well, so one 15 would expect and one did find in this particular lady 16 bilateral cerebral dysfunction, worse in the right 17 hemisphere. 18 Q That was on January 10th -- 19 A Yes. 20 Q -- 2011? 21 A But even before she was somnolent and lethargic. 22 That's an indication of bilateral cortical dysfunction. 23 I guess your question is can you explain all 24 these things by her metabolic disturbances, her antecedent 25 mental retardation and so forth. 44 1 The answer is even when they started getting her 2 better medically by improving her electrolyte status, by 3 improving her respiratory status, she was not getting 4 better. 5 In fact, she was deteriorating between the 5th 6 and the 10th, and the reason for this deterioration was 7 the progressive increased size of the subdural in that 8 period of time. 9 Q Between the 5th and the 10th, as we mentioned, 10 she had the EEG which showed slowing globally. Correct? 11 A That's right. 12 Q No focal change. Correct? 13 A That's right. 14 Q We had -- 15 A Now, by the way, I've seen the report of the EEG. 16 I can't confirm the accuracy of that interpretation, but 17 that's what the reading was. 18 Q She also had neurologic examinations performed by 19 Dr. Kini as well as other physicians. Correct? 20 A Yes. 21 Q By the way, she was unresponsive when she arrived 22 and remained so, did she not? 23 A That is correct. 24 Q She had also an evaluation that looked at her 25 eyes and that's part of a neurologic examination, correct, 45 1 looking at the eyes to see if there are any specific 2 changes that you as a neurologist would be looking for? 3 A Sure. 4 Q And those were not present. Correct? 5 A Well, there was no papilledema. There was no 6 ophthalmic paresis. 7 You don't have to have that to have a large 8 subdural. 9 Q Doctor, there are components to an exam that you 10 as a neurologist do. Correct? 11 A Yes, sir. 12 Q Part of it would be evaluation of the CT scan, 13 which in this case was negative. Correct? 14 A On the 5th -- I mean, on the 1st. On the 1st, 15 yes. 16 Q And then when this patient comes to St. 17 Elizabeth's Hospital and under the care of Dr. Kini he 18 conducts a neurologic examination? 19 A Yes, he did. 20 Q And part of that included the testing I just 21 asked about, the EEG. Correct? 22 A Yes. 23 Q And that did not show any focal changes. 24 And generalized slowing, whether or not that's 25 consistent with her 2009 EEG you wouldn't know? 46 1 A I would not know that. 2 Q If it was consistent with the 2009 EEG, that 3 would be suggestive that she does not have a structural 4 brain abnormality such as a subdural hematoma causing some 5 neurologic effects. Correct? 6 A Not necessarily. 7 Q I didn't say necessarily, doctor. You're putting 8 this together as a package now. I'm breaking it down into 9 the components. 10 A But an EEG is not helpful in this circumstance 11 for other reasons. 12 I'll be glad to explain if you'd like or not. 13 Q Well, I'll let you explain that. 14 So we had essentially a negative EEG. Correct? 15 A It wasn't negative. It was slow. 16 Q Well, let's assume for purposes of my question 17 that it's essentially the same as in 2009. 18 A That doesn't help us. 19 Q It doesn't help us? 20 A No. I'll tell you why. 21 Because, you see, she was a seizure patient. 22 Seizure patients who have had seizures, and she did, EEG 23 is slow as a result of the seizures so it's not helpful in 24 delineating or not delineating a structural process. 25 It has no value. 47 1 Q What about she had an intact doll eye movement? 2 Isn't that a neurologic finding of some import? 3 A It means the brainstem is intact. 4 It would not help us at all with a hemispheric 5 process, which she had. 6 Q What do you base your conclusion that the 7 neurologic exam that included the examination of the eyes, 8 the EEG, the CT scan, upon what basis do you conclude that 9 she had a structural brain problem prior to January 10th? 10 A Okay. She had a persistent unresponsiveness 11 despite the cessation of the seizures, despite the 12 rectification, not completely but improvement of her 13 pulmonary and medical status. 14 That suggests something else was going on 15 causative of her persistent and progressive symptomatology 16 in that period of time. 17 Plus we have an MRI scan -- 18 Q When was that improved? Doesn't that take time 19 to accomplish, the improvement in electrolyte imbalance as 20 well as the sepsis and respiratory difficulties? 21 A Well, sure, but -- 22 Q What kind of timeframe? 23 A It depends how quickly they -- she was stable or 24 better in those respects, yet her neurological examination 25 was not. It was worse or certainly not improved. 48 1 Q Well, tell me if it's worse, what do you base 2 that it was worse? 3 A The progress notes of the physicians saying she 4 was less responsive. 5 This is from the 7th, 8th, and 9th. She 6 definitely was worse between the 9th and the 10th. 7 Q Well, that's when she had an MRI done. 8 A That's correct. 9 Q Okay. 10 A That's when they finally did it. At that point 11 in time it was markedly worse. 12 The MRI scan itself is very telling because the 13 MRI scan shows several things. It shows a very large 14 subdural. Its width in the right hemisphere was 2.3 15 centimeters, which is substantial. It showed a 1.1 shift 16 from right to left, very significant, and it showed it had 17 an acute component, plus it had a chronic component, a 18 subacute component. 19 The acute component is something that happened 24 20 hours before and that would be consistent with her 21 clinical deterioration between the 9th and 10th. 22 If you look at her Glasgow Coma scores in the 23 nursing notes, she was worse on the 10th than she had been 24 on the 9th, and it probably is accounted for by the acute 25 component to the subdural which is present on the scan of 49 1 the 10th, and the rest of the blood was not acute but 2 subacute. Subacute being two to five days. That's 3 consistent with her being poorly responsive between the 4 5th and the 9th. 5 So the radiographic accompanying findings we have 6 are very consistent with a progressive subdural between 7 the 5th and the 10th which was not discovered because no 8 studies were done during her hospitalization until the 9 10th. 10 Q Doctor -- 11 A When I say studies, no radiographic studies. No 12 imaging studies. 13 Q You mean subacute means two to five days. Where 14 do you get that definition? 15 A That's just what most people consider subacute. 16 Q I have actually asked that question of a lot of 17 doctors and gotten a lot of different answers. 18 A Yes, you probably do. 19 Q Some doctors say a day. Other doctors say that 20 means two days and now you're telling me it's up to five 21 days. 22 A Yes, subacute. 23 Q So I guess it depends on the person who dictated 24 the notation that there was a subacute? 25 A You have to ask him, yes, what he means by that. 50 1 It wasn't acute. Most people say acute is 2 within a day. Some of the blood was within a day. Some 3 of the blood was older than that. 4 Q So within a day would be -- do you know what 5 percent was what, doctor? 6 A I think about 30 percent was acute, 70 percent 7 was subacute. 8 Q So you as a neurologist, doctor, when you're 9 examining patients you conduct the neurologic exam and 10 then you do additional testing such as EEGs, CT scans, 11 MRIs. 12 Do you do anything else? 13 A Maybe a spinal tap. Those are the main tests 14 that we employ. 15 Q We talked about the various problems that she 16 had, the sepsis, respiratory problems, the metabolic 17 problems. All those problems needed to be addressed. 18 So the patient comes in. She's had some testing 19 done that would not be indicative of a subdural hematoma, 20 yet we know she's got medical problems that fully explains 21 her nonresponsive state and encephalopathy. 22 She's treated for those medical problems. As you 23 point out, they're attempting to correct the electrolyte 24 imbalance. They're attempting to treat the sepsis. 25 They're attempting to treat the respiratory problems, and, 51 1 as you said, they're improving her condition from the 5th 2 when she arrives unresponsive up until the 9th. 3 Would you agree that's what their efforts were 4 geared to? 5 A Sure. 6 MR. BROWN: Object to the question as vague. 7 THE WITNESS: I mean, that was the idea of it, 8 but that doesn't preclude you from doing brain 9 imaging to ascertain if there's some intercurrent 10 structural problems. 11 BY MR. NEVILLE: 12 Q I understand. And that was, in fact, done on the 13 10th. Correct? 14 A Yes, it was. 15 My criticism is not with the treatment that she 16 had for her respiratory problem, her electrolyte and 17 septic treatment, but not assessing her thoroughly in a 18 manner to exclude a concomitant anatomic process which was 19 there and not discovered. 20 Q That's what I want to talk about. 21 So the testing that was done on the 10th you have 22 no quarrel with, I assume? 23 A Only the timing of it. 24 Q I'm going to follow up with that. 25 A Okay. 52 1 Q So you agree that was an appropriate additional 2 evaluation -- 3 A No question. 4 Q -- to be done? 5 A Yes, sir. 6 Q Your criticism is it was done on the 10th as 7 opposed to some earlier time? 8 A Yes, sir. 9 Q In your opinion when should it have been done? 10 A On the 5th. 11 In other words, when she came in this was a new 12 patient to them. Sure. She had a scan on the 1st. That 13 scan was okay. I agree with that. 14 However, it's perceivable in a person whose had 15 head trauma to have a delayed bleed. Many subdurals don't 16 reflect themselves immediately. 17 So the fact she had a negative scan on the 1st by 18 no means excludes the presence of a structural process on 19 the 5th. 20 So every day that they saw her, Dr. Kini and Dr. 21 Rickard, between the 5th and the 10th they should have 22 considered and had performed either a CT or an MRI scan 23 which would have demonstrated the subdural much earlier in 24 the game. 25 Q I asked you before about EEGs and I think you 53 1 said those in your opinion would not be helpful. 2 A Well, they're helpful in a different way. They 3 help you see if the seizures are controlled. 4 In other words, you do an EEG to see if the 5 seizures, she is a seizure patient, are under control. 6 She had no active seizures. 7 Q My question was poorly phrased. I didn't mean it 8 with regard to follow-up of seizures, doctor. 9 With regard to a diagnosis of an acute injury to 10 the brain I understood you to say EEGs are not helpful. 11 A Well, there's certain kinds of lesions it would 12 reflect. If you have a brain tumor or you have a stroke, 13 the focality. 14 A subdural classically, particularly if the 15 subdural has bilateral involvement, in this case it did, 16 it's not helpful. 17 An EEG would not discern a subdural. 18 Q The bilateral involvement manifest on the 10th. 19 When do you believe the bilateral involvement 20 manifested? 21 A I'd be speculating because we have no imaging 22 between the 1st and the 10th. 23 We know we have a lesion which was there worse on 24 the 10th over 24 hours and something that happened between 25 the 5th and the 9th, but exactly what the speed of that 54 1 development was I don't know because no imaging was done. 2 Q If there was an acute brain injury as you 3 theorized, doctor, shouldn't the EEG have shown periodic 4 lateralized epileptiform discharges? 5 A That's a very specific -- the answer is no. 6 That's a totally erroneous statement. 7 That's not from you. That's from one of your 8 experts. That's not accurate. 9 Q How do you know that's not from me? I take 10 offense to that. 11 A You're too smart for that. 12 Q The CT scan done on 1-1-2011 did it not show 13 preexistent atrophy of the brain? 14 A No question. She had atrophic changes. 15 When I say it was normal, it was normal for any 16 acute process. There was no acute process demonstrated on 17 that scan. 18 Q Doctor, how accurate is a CT scan in detecting a 19 bleed in the brain? 20 A Good. The studies have shown, for example, for 21 subarachnoid hemorrhage -- now, of course, this is 2011, 22 this scan. It's improved between 2011 and 2017. 23 Even then about 90 to 95 percent of subarachnoid 24 hemorrhages were being visualized on a plain brain CT 25 scan. It's a pretty good test. 55 1 Q I thought the percentage, from what I understood, 2 was upper 90's in accuracy? 3 A Now it's the case. Back in 2011 I'd say 90 to 95 4 percent. 5 Q Had her electrolyte imbalance been totally 6 corrected by the time she was transferred to Kindred, 7 doctor? 8 A Transferred to? 9 Q Kindred Hospital. 10 A No. 11 Q It was still in process? 12 A Well, she had other problems develop. 13 Q My question was more specific. 14 By the time she was transferred to Kindred were 15 her electrolytes normal? 16 A No. 17 Q Were they ever normal? 18 A No, they never were. 19 Q Despite the efforts to normalize them? 20 A That is correct. 21 Q At Kindred, doctor, she had an arrest. 22 A Yes. 23 Q Do you recall that? In your opinion was that due 24 to aspiration -- 25 A Yes. 56 1 Q -- most likely? 2 A Yes. 3 Q Similar to the aspirations she had been 4 experiencing over the last years? 5 MR. BROWN: Object to the form of the question. 6 Vague. 7 THE WITNESS: Yes. 8 BY MR. NEVILLE: 9 Q In your opinion should she have had a tube placed 10 to avoid that? 11 A A tube? I'm sorry. A PEG tube? 12 Q Well, whatever was recommended before this ever 13 occurred. 14 A I want to make sure I define the time. 15 Q Yes, let's do. 16 She was having numerous aspiration pneumonias for 17 which she was being hospitalized and treated as an 18 outpatient -- 19 A Yes. 20 Q -- in the year 2010. 21 A That is correct. 22 Q There was a recommendation made for some type of 23 G tube placement so as to avoid the aspirations. 24 Do you recall that? 25 MR. BROWN: Object. It misstates the facts in 57 1 evidence. 2 BY MR. NEVILLE: 3 Q You saw a reference to that in the records, did 4 you not? 5 A Yes, I did. 6 Q She never had that tube placed? 7 A At that time. 8 Q Did she at any time? 9 A Yes. Subsequent after the proceedings of -- 10 during the hospitalization of January 2011 she did. Not 11 in December 2010. 12 Q I asked you before about the event at Kindred 13 which you thought was probably precipitated by aspiration. 14 Was the tube removed or something? How did that 15 occur then? 16 A Well, you can have aspiration despite having a 17 tube in. 18 Q Okay. That just reduces the chance. It doesn't 19 eliminate it? 20 A That is correct, sir. 21 Q Okay. At some point, doctor, by the time she was 22 transferred from St. Elizabeth's Hospital she was 23 improving both medically as well as neurologically. 24 Correct? 25 A Improving -- I want to make sure I answer the 58 1 question appropriately. 2 She was improved after the surgery was performed 3 by Dr. Poulos. She manifested some improvement. 4 So she was better after January 10th than she had 5 been before January 10th, and she had sustained some 6 improvement up to the time of her February transfer to 7 Kindred, but she still was significantly worse than she 8 had been prior to January of 2011. 9 Q Didn't the records document she had returned to 10 her baseline level or near baseline level by the time she 11 was transferred to Kindred? 12 A I've seen some statements to that effect. 13 That's not consistent with my review of the 14 records how she was in 2010. 15 Q But that was documented in the records? 16 A Nonetheless, I mean, I'm not sure what they had 17 in terms of her baseline state from 2010. 18 She certainly had not achieved the status when 19 she was ambulatory, although with ataxia, up until January 20 2011. 21 Q And at Kindred prior to her arrest also 22 documented that she was at or near baseline level? 23 A It states that. But, again, it's not consistent 24 with her 2010 records. 25 Q Doctor, you've told us that in your opinion a 59 1 repeat scan should have been done on January 5 when she 2 was transferred to St. Elizabeth's Hospital. 3 A Yes, sir. 4 Q Hypothetically, if that scan was negative, do you 5 think she needed one every single day thereafter? 6 A No, not at all. 7 Q When would be the next one? The 10th? 8 A It depends. I'd say a couple days later, the 7th 9 or 8th. 10 Perhaps I can explain to you why so my opinions 11 are clear. 12 She was placed on Lovenox, which is a strong 13 blood thinner. When a person has had numerous episodes of 14 trauma, brain trauma, there's a potential for Lovenox to 15 aggrandize any potential bleeding. 16 So when a person remains poorly responsive, a 17 negative scan is slightly reassuring, but does not rule 18 out the possibility of a delayed bleed, particularly in 19 the presence of provision of Lovenox. 20 So, therefore, as a clinician I wouldn't be 21 satisfied if she remained poorly responsive as she did 22 between the 5th and the 10th. 23 So on the 5th I certainly would have done one. 24 If she remained poorly responsive, by the 7th or 8th I 25 would have done one again. 60 1 Q The Lovenox was given for DVT prophylaxis? 2 A Yes. I don't criticize that. 3 Q I know, but that's the reason for it? 4 A Yes. 5 Q Prior to the January 10th MRI, doctor, was she 6 extubated? 7 A No. I think she was on a tube throughout that 8 period of time. 9 In fact, I know she was. 10 Q So her respiratory status was not improved to the 11 point where she could breathe on her own? 12 A No. 13 Q Was she noted to be having any seizure activity 14 between the 5th and the 10th, doctor? 15 A I don't recall that, no. 16 Q She was being treated for the septic 17 encephalopathy by antibiotics. Correct? 18 A She was. 19 Q Was her sepsis improved by the 10th, doctor? 20 A Yes. Her temperature had come down, her white 21 count had come down so she was responding to the 22 antibiotics. 23 Q But it was not totally resolved by the 10th? 24 A I agree with that. 25 Q We talked about encephalopathy which can be 61 1 caused by sepsis and you agree she had that. Correct? 2 A Yes. 3 Q Encephalopathy can also be caused by metabolic 4 imbalances. You agree she had that? 5 A She did. 6 Q Can it also be medication-induced? 7 A Yes. 8 Q For the seizure medications, for example? 9 A Well, if the seizure medicines had abnormal 10 levels. 11 She didn't, but if they were, they could cause 12 encephalopathy. 13 Q The cardiac arrest that she had or the arrest 14 that she had at Kindred Hospital on 2-23-11, how long did 15 that last? Do you know? 16 A I don't recall, sir. I'm sorry. 17 Q Does approximately thirty minutes sound like what 18 you recall reading? 19 A It could well be. I'm not disputing that. I 20 just don't recall the exact time. 21 Q A prolonged cardiac arrest of that amount of 22 time, doctor, that would cause significant morbidity in a 23 patient, would it not, or could? 24 A Yes. 25 Q Her Glasgow Coma Score on February 2011 was 62 1 twelve, was it not? 2 A Yes. 3 Q What does that mean? 4 A Well, I don't recall what the components were, 5 but normal is fifteen. 6 So it means she had either a change in eye 7 movement, a change in responsiveness or a change in motor 8 function or a combination thereof. 9 I don't recall how they computed that, but it's a 10 moderate reduction of normal neurological. 11 Q Compared to what it was before that, though, it 12 was an improvement. Correct? 13 A Yes. She had as low as five on January 10th. 14 Q This patient's transfer to St. Elizabeth's 15 Hospital on January 5, 2011, was that primarily because of 16 the ventilator management? 17 A Yes. St. Joseph's-Breese was a small community 18 hospital. 19 That's one of the reasons. It didn't have the 20 facilities for patients of this nature. It didn't have 21 neurological care, so it made much more sense for the 22 person to be in a larger secondary hospital as opposed to 23 a primary facility. 24 Q Her diagnosis on transfer, doctor, was Adult 25 Respiratory Distress Syndrome. Correct? 63 1 A It was. 2 Q It included. I'm going to read off a bunch of 3 them. 4 A Okay. 5 Q Adult Respiratory Distress Syndrome. Correct? 6 A That's one. 7 Q Seizures? 8 A Yes. 9 Q Postictal state I guess from seizures? 10 A Yes. 11 Q Multiple recent medication adjustments, including 12 she had been weaned off of DPH. 13 Her valproic acid was decreased. Correct? 14 A Yes. 15 Q Those are medications for seizures? 16 A They are. 17 Q And that's what she was taking them for before 18 they were reduced -- 19 A Yes. 20 Q -- or eliminated? 21 And then she had been given medications at St. 22 Joseph's that included Ativan, DPH and Haldol. Correct? 23 A Yes. 24 Q And she had septic encephalopathy with a white 25 count of 15.7, aspiration pneumonia, biliuria with 64 1 possible urinary tract infection -- 2 A She did. 3 Q -- among her diagnoses? 4 A Yes, sir. 5 Q Metabolic encephalopathy with a sodium of 153, 6 BUN of 38 and dehydration? 7 A Yes. 8 Q She was given Versed and GTT on January 5 which 9 was carried over into the early a.m. of January 6th. 10 Correct? 11 A Yes, sir. 12 Q She was agitated in the ED at St. Joseph's 13 Hospital and given meds there, correct, on January 1? 14 A Yes, sir. 15 Q And was essentially nonresponsive since that 16 time. Correct? 17 A That's correct. That's a definition of her 18 status, yes, sir. 19 Q Through her stay at St. Elizabeth's Hospital she 20 essentially remained unresponsive. Correct? 21 MR. BROWN: Object to the form of the question as 22 vague. 23 THE WITNESS: Well, she became more responsive 24 after the surgery. 25 65 1 BY MR. NEVILLE: 2 Q I'm sorry. That was a poorly phrased question. 3 From the time of her transfer on January 5 4 through January 10th she essentially remained 5 nonresponsive. Correct? 6 A She did, although I must say she deteriorated on 7 objective criteria between January 9th and January 10th. 8 I'll leave it at that. 9 Q With regard to her septic encephalopathy would 10 you agree she met the SIRS criteria, S-I-R-S? 11 A Yes. 12 Q Are you familiar with that? 13 A Yes. 14 Q Following the surgery by Dr. Poulos, doctor, and 15 through the time up to her arrest at Kindred Hospital she 16 was improving both medically and neurologically. 17 Would you agree? 18 A Yes, I would. 19 Q And then two days or so prior to her arrest her 20 tracheostomy was reversed, was it not? 21 A Yes. 22 Q And then subsequent to that she had the arrest 23 which you believe was probably aspiration-mediated? 24 A Yes, sir. 25 Q Did you review any of the dental records, doctor? 66 1 A No, sir. 2 Q Were you aware she had eight missing teeth? 3 A No, I was not. 4 Q Doctor, I'm looking at this and what's written 5 there is that her lesion progressed and grew in size 6 causing substantial herniation across the midline. 7 I thought there was no herniation. 8 A Yes. It was right to left. 9 In other words, you asked me earlier was the 10 brainstem herniated. The answer is no. 11 It was right to left herniation. Shift. 12 Q That was a shift? 13 A Yes. 14 Q That doesn't mean there was herniation? 15 A That's true. It was a large shift. 16 Q Okay. So the term herniation should have been 17 shift? 18 A Yes. I think that's fair. 19 Q All right. Dr. Poulos was able to repair the 20 bleed. Correct? 21 A Remove. 22 Q First he stopped the bleed? 23 A Yes. 24 Q And he was able to remove the old blood? 25 A Yes. 67 1 MR. NEVILLE: Thank you, doctor. 2 THE WITNESS: Thank you, sir. 3 MR. BURKE: Doctor, do you need a break? 4 THE WITNESS: About thirty seconds. 5 MR. BURKE: Can I have two minutes? 6 (A brief recess was taken.) 7 CROSS EXAMINATION 8 BY MR. BURKE: 9 Q Doctor, my name is Ken Burke. I represent Dr. 10 Jacqueline Rickard. 11 I have a few questions for you. I'll try not to 12 be repetitive. Hopefully I won't take thirty minutes. 13 A Whatever you need. 14 Q You reviewed the records, extensive amount of 15 records on Linette Keeven, and was your impression from 16 reviewing those records that there had been a 17 deterioration in her condition in 2010 from what it had 18 been previously? 19 A Yes. 20 Q And then that deterioration worsened throughout 21 2010. Would you agree with that? 22 A It was more apparent in the latter part of 2010 23 when the neurologist treating her attempted to modify her 24 anti-seizure medications. 25 I'm not saying that was inappropriate because she 68 1 had been without seizures for ten years and one endeavors 2 to give the least amount necessary to control the process. 3 Unfortunately, it did not work out as planned 4 and her seizures recurred. 5 So I think that the deterioration that we see in 6 the latter part of 2010 was caused by that intervention. 7 Q You may have answered this and it went over my 8 head, but describe what the deterioration was. 9 A She had recurrent seizures and she had episodes 10 of aspirations attendant to those recurrent seizures. 11 Q And that aspiration resulted in pneumonia? 12 A Yes. 13 Q And resulted in respiratory problems? 14 A Yes. 15 Q And that can also have an effect on someone's 16 brain, especially a person's brain that was compromised 17 like Linette's was? 18 A Well, I'm not saying it was. 19 You asked me the generic question can that 20 happen. 21 Q Yes. 22 A Did that happen here? There was no evidence of 23 any new brain damage. 24 How do we know that? She had several CAT scans 25 in the latter part of 2010 and January 1st, 2011 which 69 1 showed no new brain damage. 2 Q If there was an effect of the -- for example, if 3 a patient has a cardiac arrest and the brain is without 4 oxygen for a period of time that results in permanent 5 deficits, is that going to immediately show up on an MRI 6 or a CT? 7 A Not immediately, but eventually it would be. 8 Q How long? 9 A It depends on the degree of hypoxia sustained. 10 It could be a few days. It could be a few weeks. 11 Q Would that more likely show up on an MRI or a CT? 12 A MRI would be preferential in that. 13 Q How would that show up on an MRI? 14 A Areas of atrophy, areas of demyelination, areas 15 of reduced absorption. 16 Q So her primary brain imaging over the years had 17 been CAT scan? 18 A That is correct. 19 Q Did she have an MRI at all before January 10th of 20 2011? 21 A I've not seen one. I'm not saying she didn't 22 have one, but I have not been provided with that. 23 Q In order to be able to determine if any of these 24 events in 2010 resulted in further brain damage would you 25 need to compare MRIs? 70 1 A That would be the best way, but that's not 2 available. 3 The one MRI she had didn't show that kind of 4 damage. It showed the subdural. I have nothing to 5 compare it to from previous MRIs. 6 We do have CT scans in December and January and 7 there was nothing recognizable on those scans indicative 8 of increased hypoxic damage. 9 Q I saw the CT scan report of the one of December 10 21 of 2010. It referenced I thought a dilatation of the 11 third ventricle. 12 Did that mean anything to you? 13 A Well, it goes along with a person who has chronic 14 retardation. Often they have some mild hydrocephalus 15 associated with that. 16 That's nothing to do with hypoxia. 17 Q Had that been present on any previous scans? 18 A I just don't recall that, I'm sorry. 19 I saw the scan of January -- I did not see that 20 scan, but I saw the report to be sure. I saw the scan of 21 January 1st, 2011. 22 The degree of hydrocephalus and ventricular 23 dilatation was minor. It was not a significant process. 24 Q She did have atrophy visible on the scans? 25 A No question. 71 1 Q What was the degree of atrophy? 2 A Moderate. She's a lady in her 50's. It was more 3 than one would anticipate for a person of that age. 4 Q Atrophy, is that essentially shrinkage of the 5 brain? 6 A Yes, it is. 7 Q Did you look at the imaging to determine whether 8 that atrophy had increased from CT to CT? 9 A I've not seen the scans of 2010. 10 Q Okay. 11 A The reports do not indicate that, but I have not 12 seen the scans to verify that. 13 Q Okay. Linette was in and out of the hospital 14 pretty much from November of 2010 up through her transfer 15 to St. Elizabeth's on January 5th of 2011. 16 You agree with that? 17 A Yes. 18 Q And during that time she did have episodes of 19 encephalopathy? 20 A Yes. 21 Q She was more lethargic? 22 A At times she was, yes. 23 Q Do you have an opinion as to the cause of that? 24 A Yes. 25 Q What? 72 1 A Recurrent seizures with postictal state. 2 Q I've heard that term a lot and I probably at one 3 time knew what that meant, but what is postictal state? 4 A When a person has a seizure, after the seizure is 5 terminated there's a period of time, could be a few hours, 6 could be several days, where the person is confused, 7 disoriented, lethargic, poorly responsive. 8 Q Obtunded? 9 A They can be. Typically they're obtunded 10 initially and then that obtundation wanes after 24 to 72 11 hours. 12 Q You reviewed the records from St. Joseph's 13 Hospital-Breese. Correct? 14 A Yes. 15 Q I thought on exam findings after these reported 16 falls, and you're right, you referenced there was a 17 history given of nine falls -- do you recall seeing that? 18 A Yes, I do recall that. 19 Q You don't recall over what period of time those 20 nine falls were? 21 A I don't think it was specified. 22 Q But in response to that type of history and her 23 presentation CT of the facial bones and a CT of the brain 24 was performed. Correct? 25 A That is correct, sir. 73 1 Q And I think examination findings revealed some 2 facial abrasions? 3 A Yes. 4 Q Did you see anything documenting exam findings up 5 on her skull itself, whether it be bruising, hematomas, a 6 bump, things like that, lacerations? 7 A I did not see that documented, no, sir. 8 Q I think on January 1st Linette was extremely 9 agitated and she was given Haldol? 10 A She was. 11 Q What is Haldol? 12 A Haloperidol is an antipsychotic agent which is 13 used to stem agitation in people who are acutely confused 14 and agitated and you have to sedate them to require care. 15 Q So it's a sedative? 16 A Yes. 17 Q What is a typical dose of Haldol? 18 A Depends on the size and age of the patient. 19 Q For Linette what would you consider a typical 20 dose of Haldol? 21 A One would start with two milligrams and go up to 22 five milligrams depending on the degree of agitation. 23 Q How much was Linette given on January 1st? 24 A I don't recall that. 25 Q If she was given 25 milligrams, would that be a 74 1 very high dose of Haldol? 2 A Yes. 3 Q Would you expect that to have some lasting 4 effects? By lasting, over days. 5 A It depends if they were continued. In other 6 words, if you give that in one short period of time. 7 She had some mild renal dysfunction so I would 8 expect it to last for two to three days. 9 Q That's ten times a dose you would give? 10 A Well, I think that was the total dose as opposed 11 to an individual dose. 12 In other words, I would give two to five 13 milligrams a shot. Maybe do it two or three times in a 14 day. 15 So I would think a standard dose in a day would 16 be about ten to fifteen milligrams. 17 Q How was Linette given the 25 milligrams? 18 A I don't recall the exact order that was 19 administered. 20 Q What if it was administered all in one shot? 21 A That's unusual. Again, that would decay in a 22 period of two or three days. 23 Q But in somebody with her condition that would 24 certainly play a role in any lethargy she would have? 25 A It certainly played a role in her lethargy at 75 1 Breese and the initial presentation to St. Elizabeth's, 2 but that would not be longer than that. 3 Q So that was a valid concern on the initial 4 presentation to St. Elizabeth's, the fact that she had 5 received this Haldol? 6 A Yes. 7 Q That was a contributing cause of her current 8 status? 9 A Yes, one could say potentially that had some 10 contribution. 11 Q What was the cause of her ARDS and her metabolic 12 encephalopathy and septic encephalopathy? 13 A I think the aspiration was the kernel there that 14 caused the secondary problems. 15 Q Now, were you aware Linette had a sustained 16 seizure on January 3rd or 4th at St. Joseph's Hospital? 17 A Yes. 18 Q Are you aware she had a respiratory arrest? 19 A Yes. 20 MR. BROWN: Object. 21 BY MR. BURKE: 22 Q You saw documentation of that? 23 A Yes. 24 Q Did you see the Code 99 sheet? 25 A I did. 76 1 Q The arrest was documented, as they called it, a 2 1208. Do you recall that? 3 A I don't remember that number, but I know she had 4 an arrest. 5 Q They intubated her? 6 A Yes. 7 Q You intubate somebody for what reason? 8 A Protect their airway. Prevent hypoxia. 9 Q Hypoxia would be lack of oxygen to the brain? 10 A Yes, sir. 11 Q That could result in injury to the brain? 12 A Yes, sir. 13 Q Do you recall noting that she was intubated at 14 12:18? 15 A I don't remember the exact time. I knew it was 16 in that timeframe of the arrest, which was around 17 noontime, yes. 18 Q Ten minutes after the arrest? 19 A Yes. 20 Q Leading up to the arrest are you aware her 21 arterial blood gases revealed she was hypercapnic? 22 A Yes, I do recall that. 23 Q She's not ventilating properly? 24 A That's why they intubated her. 25 Q That could result in hypoxia to the brain? 77 1 A Yes. 2 Q She had another seizure during the code. Are you 3 aware of that? 4 A I'm aware of that. 5 Q They had to reintubate her at 12:20. Do you 6 recall that? 7 A Yes. 8 Q These are the types of events that can result in 9 a hypoxic injury to the brain? 10 A They can. 11 Q And this was on January 4th? 12 A Yes. 13 Q Did Linette in your review of the records ever 14 return to baseline after this respiratory arrest? 15 A No. Now, she did improve after the January 10th 16 surgery, but even after that improvement she never 17 returned to her so-called baseline state that she had 18 manifest in 2010. 19 Q Do you have any criticisms of the healthcare 20 providers at St. Joseph's Hospital? 21 A I do not. 22 Q Do you think a CT scan or an MRI should have been 23 obtained on January 4th? 24 A The answer is I think it would have been a good 25 idea, but I'm not sure what it would have showed at that 78 1 point in time. 2 Q Well, what would it have showed on January 5th? 3 A On January 5th? Again, based on the scan that 4 was done on the 10th, somewhere around the 5th is when the 5 blood would have been demonstrated. 6 Q But not on the 4th? 7 A Perhaps not. Maybe it would have been. Maybe it 8 would not have been. 9 Q Maybe it wouldn't have been on the 5th? 10 A Maybe it wouldn't have been on the 5th. 11 Q Maybe it wouldn't have been on the 6th? 12 A No. On the 6th it would have. 13 Q Your criticism of Dr. Rickard, as I read these 14 disclosures, is Dr. Keeven requested another imaging of 15 the brain to Dr. Rickard and you feel with that 16 information in mind Dr. Rickard should have brought that 17 to Dr. Kini? 18 A It's a little more than that, but basically -- 19 Q That's how I thought I was reading this, but go 20 ahead. 21 A Basically she, Dr. Rickard was the primary 22 physician. She was the hospitalist in charge of the 23 patient. She was in charge of overall care. 24 Now, when you have a patient in your jurisdiction 25 who is lethargic, who's had aggressive management, 79 1 respiratory treatments and she still remains substantially 2 impaired, perhaps worse, certainly not better, one has to 3 consider a structural process. 4 They did have a neurologist in the case. 5 Q That was reasonable, wasn't it? 6 A Absolutely. That was required. 7 Q She consulted with him every day, didn't she? 8 A They did communicate. Whether it was every 9 day -- 10 Q He testified to that and she testified to that. 11 A Yes. In any event, nonetheless, the patient 12 remained poorly responsive. 13 The family appropriately was asking for some more 14 definition of this problem. 15 Imaging had been done on the 1st, but not since 16 then. 17 She is in charge of the patient, so I think even 18 though she had some right to rely on the neurologist that 19 she elected to see the patient, when the patient is not 20 responding, who she is talking to every day, the family is 21 requesting a CT or MRI scan, I think it was MRI 22 specifically, she had a responsibility to consider that 23 request. 24 There's no reason to not do it, to do an imaging 25 study and discuss it with Dr. Kini and say, "Hey, you 80 1 know, the patient is not getting better. We've gotten her 2 medical status improved to some degree. She's being 3 treated for sepsis. She's had better oxygenation. Her 4 respiratory status is better, but she's not better 5 neurologically. I think we shroud do a CT or MRI." 6 She didn't do that. That's my only criticism of 7 this doctor. 8 Q That she didn't take it to Dr. Kini and discuss 9 that? 10 A Yes. 11 Q Was Dr. Kini aware of the family's request for an 12 MRI? 13 A Yes. 14 Q So Dr. Keeven had made the same comment to Dr. 15 Kini? 16 A She did to him. 17 Q So I guess I'm having a difficult time 18 understanding if the treating neurologist was aware of 19 that request, the fact that Dr. Rickard did not discuss 20 it, and we don't know if she discussed it, how did that 21 alter the outcome? 22 A If she had persuaded Dr. Kini to order an 23 imaging, it would have been done. 24 It would have discovered the lesion and prevented 25 her deterioration. 81 1 Q You agree she as a hospitalist has a right to 2 rely on any consultant -- 3 A Sure. 4 Q -- specialist she may consult? 5 A But if the behavior of the consultant is 6 inappropriate or insufficient, the answer is she has the 7 right to overrule that and go to him and say, "Hey, you 8 know, this lady is poorly responsive. Dr. Sudholt has 9 improved her pulmonary situation. We've treated her with 10 antibiotics and the white count is declining and the fever 11 is declining. She's still worse neurologically. Should 12 we not do an imaging?" 13 That's what her role should have been, but she 14 didn't do that. 15 Q But she was consulting with -- 16 A But she didn't do it. 17 Q Well, I understand with hindsight you can go back 18 and say you should have got an image, but they both 19 testified she would consult with him. They discussed her 20 condition. 21 She wasn't sufficiently respiratory improved to 22 come off the ventilator. She still had the septic 23 encephalopathy. She still had the metabolic 24 encephalopathy. 25 They were both discussing that and aware of those 82 1 conditions. Correct? 2 A Yes. 3 Q And they were the ones there treating her? 4 A That's right. 5 But even though these things had been treated and 6 were improved to a certain degree her neurological status 7 was not better and was even getting worse. 8 It's very simple. You do a simple noninvasive 9 test like a brain CT scan and you can rule out something 10 else going on structurally. 11 Q A CT scan will rule out something going on 12 structurally? 13 A Yes. 14 Q Like a subdural hematoma? 15 A That's right. 16 Q You've ordered CT scans in your career frequently 17 to rule out a cerebral bleed? 18 A Absolutely. 19 Q To rule out a subdural? 20 A Yes. 21 Q And if they come back normal, you've ruled those 22 things out? 23 A At that time. 24 Again, as I mentioned before to your colleague, 25 is a delayed effect of trauma. 83 1 In other words, you could have trauma on day one, 2 do a CT scan ten minutes later and it's negative. 3 That gives you some reassurance at that time. It 4 does not eliminate the possibility of a delayed bleed, 5 which happens with some frequency. 6 Q What's the percentage of time? 7 A Ten, 20 percent of the time there's a delayed 8 bleed. 9 Q When did she deteriorate? You said that several 10 times and you may have told us before and I just can't 11 remember. 12 When do you think she deteriorated 13 neurologically? Was that on the 9th? 14 A Before the 9th, though, my concern was not that 15 she was deteriorating, but she was not getting better. 16 In other words, they were treating her 17 aggressively and appropriately for her medical conditions, 18 and yet between the 5th and the 9th she was no better at 19 all. 20 Between the 9th and 10th she got worse and 21 finally a scan was done, but between the 5th and 9th she 22 was not getting better despite the treatment. 23 Q When you rule something out do you take that off 24 your differential? 25 A If I've ruled it out conclusively. 84 1 What I'm saying to you is the CT of the scan of 2 the 1st did not definitively rule out a structural process 3 on the 5th, 6th, 7th, 8th, 9th, 10th. 4 Q I'm dense, doctor, but I got that pretty clear. 5 A I just wanted to make sure you understand my 6 position. 7 Q You've told Mr. Neville that you believe the 8 subdural was 30 percent acute and 70 percent subacute? 9 A Yes, sir. 10 Q What is your basis for that? 11 A Just looking at the scan, looking at how much 12 acute blood versus how much chronic blood. 13 Q In your experience are all subdural hematomas 14 treated with surgery? 15 A No. 16 Q The ones that aren't, how are they treated? 17 Observation? 18 A Observation. Several things. 19 Firstly, make sure there's no offending agents: 20 Lovenox, heparin, Coumadin, aspirin, Plavix, 21 anti-inflammatory. You remove all those. 22 Number two, if the person has some swelling, you 23 might give them some corticosteroids and you do serial 24 scans and watch them and hopefully the blood will resolve. 25 Most times it does resolve over a period of 85 1 time. If it doesn't get resolved or the person gets 2 worst, then you have a surgeon step in. 3 Q Are you able to ascertain in your review of the 4 MRI scan how long the midline shift had been present? 5 A I can't tell you that. 6 Q You work with the Thurston Group. Do you receive 7 a salary from them? 8 A Yes. 9 Q You have an outpatient and an inpatient practice? 10 A I do. 11 Q What is the breakdown percentage-wise of that? 12 A 80/20 outpatient, inpatient. 13 Q Do you have your own patients or are on most of 14 your patients you are a consultant? 15 Do you understand that question? 16 A Yes, I do. 17 Actually, most of my patients are referred by 18 other physicians. 19 I do have some people coming from family members, 20 things of that sort. 21 In the hospital I see my own patients come back. 22 I've been here in the same place for forty years so I have 23 a lot of patients around or doctors refer me new patients. 24 Q So is it primarily a consultant practice? 25 A Yes, sir. 86 1 Now, I do admit some patients for primary 2 neurological problems. For example, a patient with MS 3 with an exacerbation I put them in for IV steroids. 4 A patient who has seizures I put them in for EEG 5 videometry. 6 A patient with hydrocephalus I'll put them in for 7 a cisternogram. 8 There are patients about once or twice a month 9 I'll admit and I'm the primary physician, but the vast 10 majority of patients I see come from other physicians. 11 Q Have you worked with hospitalists? 12 A Yes, of course. 13 Q Would you put your patient in the hospital and 14 you handle the neurology care and you rely on the 15 hospitalist to take care of other medical issues? 16 A I will do that if the patient is like a stroke 17 patient who has major medical issues, yes. 18 Q You want the hospitalist to take care of those 19 other medical issues while you address the neurological 20 issues? 21 A That is correct, sir. 22 Q In your practice I suppose on every patient you 23 will exercise your medical or clinical judgment? 24 A Yes. 25 Q That's kind of how medical school is. You go 87 1 through four years of medical school and you learn all the 2 medicine. 3 Then you do your residency and is that when 4 you're kind of taught how to think like a doctor? 5 A Yes, sir. 6 Q And what do you in exercising your medical 7 judgment is you'll obtain a history from the patient. 8 You'll do an exam. You may review various testing and 9 then you exercise your judgment based on your education, 10 experience and training within your specialty as to how 11 you feel it is best to proceed with that patient? 12 A That is correct, sir. 13 Q So the history and the exam, that forms your 14 medical decision-making based on your training and 15 experience? 16 A Yes, sir. 17 Q And sometimes you'll have to consult with other 18 physicians such as a cardiologist or a pulmonologist and 19 things like that? 20 A Of course. 21 Q And then you rely on them to handle things within 22 their specialty? 23 A Yes, sir. 24 Q And your interaction with them also forms your 25 clinical judgment? 88 1 A Surely. 2 Q And when you do those things and exercise your 3 clinical judgment based on physical exam, history, 4 consultation with other specialists, that's reasonable for 5 you to then do that process, isn't it? 6 A Yes, it is. 7 Q Are you Board certified in family practice? 8 A No. 9 Q That would be a different board than your 10 neurology board? 11 A It is. 12 Q Have you ever worked as a family practice 13 physician? 14 A Only in the Army. 15 Q I worked as an x-ray tech in the Air Force. 16 Have you ever worked as a hospitalist? 17 A No. 18 Q Do you hold yourself out as a hospitalist? 19 A I do not, sir. 20 Q Have you made upwards to five million dollars 21 doing this medical-legal work? 22 A Over forty years, yes. 23 Q Do you generally earn about $200,000 a year doing 24 this? 25 A That's accurate. 89 1 Q You've testified in court over a hundred times? 2 A Yes, sir. 3 Q You testified in over half the states in the 4 union? 5 A Yes. 6 Q Did you testify in court for that trial with 7 Colleen Jones? 8 A Yes. 9 Q What court was that in? 10 A I don't know. Maybe it's on the list here. 11 Q It's not important, but you came to southern 12 Illinois? 13 A Yes. 14 Q Did you like it up there? 15 A Yes. People are nice up there. 16 Q It was April so the weather was good. 17 A Yes. 18 Q If you go up there in August, you wouldn't like 19 it. 20 Doctor, I'm looking through my notes and I may be 21 done. 22 Are you a member of the American Academy of 23 Neurology? 24 A No. 25 Q Have you been? 90 1 A I was. 2 Q How long? 3 A From 1972 or three until 2007. 4 Q Why did you leave? 5 A They instituted a new regulation in 2007 6 requiring us to put money in as part of our dues to a 7 political action committee. I was opposed to that. 8 Q Did the American Academy of Neurology have 9 guidelines for their members providing expert testimony? 10 A Yes. 11 Q Did those guidelines contain a provision that you 12 should limit your criticisms to the field of neurology? 13 A Yes. 14 Q You had complaints filed against you with the 15 American Academy of Neurology because you were offering 16 standard of care opinions as to nephrologists, 17 endocrinologists, radiologists? 18 A Well, no. The actual complaint was by a 19 nephrologist and I answered that complaint and no action 20 was taken against me. 21 Q Was there a process within the American Academy 22 of Neurology to have a hearing on those complaints once 23 it's been responded to? 24 A It was. 25 Q If you resign your membership in the American 91 1 Academy of Neurology, can the academy take any action 2 against you? 3 A I don't know that. 4 Q If a complaint is filed and it's responded to and 5 they decide to take action, what action could the academy 6 take? 7 A There's various things they could. 8 I guess they could censure you. They could 9 remove you. I guess there's various things that can be 10 done. 11 MR. BURKE: Jason, do you have any questions? I 12 don't want to keep the doctor waiting as I go through 13 my notes. I may not have any more, but I'm going to 14 let him go. 15 CROSS EXAMINATION 16 BY MR. GOURLEY: 17 Q My name is Jason Gourley. I represent St. 18 Elizabeth's Hospital. I'll have a few more questions for 19 you this morning. 20 I'm going to start by directing your attention 21 back to the document marked as Exhibit 1. Do you have 22 that handy? 23 A Yes, I do sir. 24 Q And that's Plaintiff's Supreme Court Rule 213 25 Disclosures? 92 1 A Yes, sir. 2 Q I am going to draw your attention to Page 8 of 3 that document, Paragraph L. 4 A I'm with you. 5 Q My review reflects that Paragraph L relates to an 6 opinion that you intend to offer concerning whether St. 7 Elizabeth's Hospital appropriately informed medical 8 personnel regarding their capabilities of the hospital. 9 Is that a fair statement? 10 A Yes. 11 Q And my review of this entire document reflects 12 that that's the only opinion that you intend to offer with 13 respect to St. Elizabeth's Hospital and specifically with 14 respect to a breach of the standard of care. Is that 15 fair? 16 A That is fair, sir. 17 Q You're not offering any opinions, standard of 18 care opinions with respect to the nursing staff of St. 19 Elizabeth's Hospital? 20 A I am not, sir. 21 Q Doctor, going back to Paragraph L that we just 22 discussed, did you review the deposition of Dr. Kini in 23 this case? 24 A Yes. 25 Q And in his deposition did Dr. Kini testify that 93 1 during the period of Linette Keeven's hospitalization that 2 he was aware that St. Elizabeth's Hospital had the 3 capability to perform an MRI on a patient on a ventilator? 4 A He states that in the deposition. 5 Q And you're not offering any opinions concerning 6 the veracity of the testimony of Dr. Kini, are you? 7 A No, I am not. 8 Q And assuming for the purposes of this question 9 that Dr. Kini's statement or his testimony is accurate in 10 that he was aware that the hospital had the ability to 11 perform an MRI on a patient on a ventilator, so assuming 12 that's true, would you agree that St. Elizabeth's Hospital 13 satisfied the duty that you've identified in Paragraph L? 14 MR. BROWN: Object of the form of the question. 15 THE WITNESS: With respect to Dr. Kini. In other 16 words, it doesn't discuss that Dr. Rickard knew or 17 didn't know. 18 Again, there's some controversies as far as Dr. 19 Kini's response there, but the answer is yes to your 20 question. 21 BY MR. GOURLEY: 22 Q And Dr. Kini was Linette Keeven's neurologist. 23 Correct? 24 A He was. 25 Q He, of course, had the ability to order an MRI. 94 1 Right? 2 A Yes. 3 Q And did you review the deposition of Dr. Rickard 4 in this case? 5 A Yes. 6 Q And would you agree that Dr. Rickard also 7 testified that she was aware that the hospital had the 8 ability to perform an MRI on a patient on a ventilator? 9 A I just don't recall that response. You may be 10 accurate. I just don't know. 11 Q Assuming she testified that she was, in fact, 12 aware of that capability, then same question, would you 13 agree that the hospital has established the duty you 14 identified in Subparagraph L? 15 A Yes, sir. 16 Q You also reviewed the deposition of Nurse Strong. 17 Correct? 18 A Yes. 19 Q And she also testified she was aware that the 20 hospital had that capability? 21 A Miss Strong. Yes, I do recall that testimony. 22 Q Doctor, you're not offering any opinions with 23 regard to any relationship between St. Elizabeth's 24 Hospital and Dr. Rickard or Dr. Kini, are you? 25 A No. 95 1 MR. GOURLEY: I believe those are all the 2 questions I have for you. Thank you. 3 RECROSS EXAMINATION 4 BY MR. BURKE: 5 Q I did have a few more in looking at my notes. 6 A Go ahead. 7 Q Did you see any documentation in the medical 8 records reflecting that Dr. Keeven was requesting 9 additional imaging on Linette? 10 A No. 11 Q I think I've heard you use the phrase structural 12 brain condition. 13 A Yes, I have. 14 Q As opposed to nonstructural? 15 A Yes, sir. 16 Q Would a structural brain condition be something 17 like a tumor, a bleed, a subdural? 18 A Yes, that would be the case. 19 Q Something structurally within the brain? 20 A That is correct. 21 Q Nonstructural would be a more systemic condition 22 that can affect the brain? 23 A That is accurate, yes, sir. 24 Q Such as metabolic encephalopathy, septic 25 encephalopathy, seizures, things of that nature? 96 1 A Yes, sir. 2 Q One way you can clinically differentiate between 3 structural and nonstructural is if there's any focality of 4 symptoms? 5 A That would help us, yes. 6 Q Focality of exam findings? 7 A Yes, sir. 8 Q Such as the pupils are unequal in size and 9 reaction to light? 10 A That's one way, yes. 11 Q And if you have a subdural on the right side, 12 when you examine the pupils you would typically expect 13 there would be a different reaction from the right pupil 14 as opposed to the left pupil? 15 A Well, you may or may not see that. That can 16 happen. Not necessarily. 17 Q Is that more likely to happen with a larger 18 subdural? 19 A Yes. 20 Q Is it more likely to happen with a subdural that 21 had been there for some time? 22 A Yes. 23 Q Linette Keeven certainly had nonstructural issues 24 affecting her brain as you've discussed and agreed to here 25 today? 97 1 A We have discussed that, yes, sir. 2 Q Those were substantial issues, though, the 3 encephalopathy due to various causes? 4 A Yes, sir. 5 MR. NEVILLE: Doctor, you've been very patient 6 with me. Thank you. I don't have any more 7 questions. 8 THE WITNESS: I appreciate it. 9 REDIRECT EXAMINATION 10 BY MR. NEVILLE: 11 Q Just a couple follow-ups. 12 A Sure. 13 Q Doctor, I may have misspoke when I was 14 referencing her arrest in February. I think I said when 15 she was at Kindred. February of 2011. 16 She was probably at Barnes Hospital. I may have 17 misspoke. 18 A I was thinking about that. I knew she had an 19 arrest. Right, Barnes. 20 Q I just wanted to make sure I corrected that. 21 A Thank you. 22 Q In our discussion I may have said Kindred. 23 A Yes, I knew what arrest you were talking about, 24 but different location. 25 Q Okay. Then a year or so later -- I mean, she 98 1 died when, doctor? 2 A She died in the latter part of 2012. 3 Q So more than a year and a half later? 4 A Yes. 5 Q What did she die from? Myocardial infarction? 6 A It was never really determined. That could have 7 been it. Probably so. 8 Q After her arrest at Barnes her condition did not 9 continue to improve like it had prior to that arrest? 10 A No, it did not, sir. 11 MR. NEVILLE: Thank you, sir. 12 RECROSS EXAMINATION 13 BY MR. BURKE: 14 Q Can I ask one more question? Can a subdural 15 hematoma cause facial asymmetry? 16 A Yes. 17 Q Does that depend on the location of the subdural? 18 A It does. 19 Q How about in the right frontoparietal area where 20 this one was located? That is the location of this one. 21 Correct? 22 A Right. Bear in mind that it's hard to assess 23 facial asymmetry if you're intubated. 24 Q I do need to bear that in mind. But can a 25 subdural where this one was located cause facial 99 1 asymmetry? 2 A It can. 3 Q Can that be ascertained on somebody who's 4 intubated? 5 A It's tough. The answer is it can be, but it's 6 difficult to assess that. 7 MR. BURKE: Thank you, again. 8 CROSS EXAMINATION 9 BY MR. BROWN: 10 Q Doctor, I just have a few clarifying questions. 11 You've been asked some questions about the 12 concept of a structural abnormality. Just so that it's 13 clear, am I correct in understanding that you're of the 14 opinion that her treatment providers, particularly Dr. 15 Kini and Dr. Rickard, should have been concerned about a 16 structural abnormality as perhaps in addition to or as 17 opposed to a systemic issue causing the problems when she 18 was transferred to St. Elizabeth's? 19 MR. BURKE: Object to the form. 20 THE WITNESS: Yes. 21 BY MR. BROWN: 22 Q You were asked some questions about neuro exams. 23 Am I correct in understanding that there are a 24 variety of tests and assessments that neurologists 25 perform? 100 1 A Yes, there are. 2 Q And these tests or assessments are designed to 3 evaluate a variety of neurological conditions. Correct? 4 A Yes, sir. 5 Q And in this particular case and this particular 6 patient you were asked some questions about an EEG. 7 Am I correct in understanding that an EEG was not 8 necessarily helpful or diagnostic of a structural 9 abnormality causing Linette's problems in St. Elizabeth's? 10 A It would not be because of her concomitant 11 seizure problems and postictal state and the slowing which 12 was occasioned by that. 13 Q And the findings of certain neurological exams, 14 physical exams would also not be diagnostic for subdural 15 hematomas? 16 A No, it would not be. 17 Q And you gave an example of the doll's eye 18 movement as an assessment to look for certain neurological 19 conditions but not others, including a subdural hematoma. 20 A A subdural hematoma, its location here would not 21 affect doll's eyes. 22 You have a totally normal doll's eye maneuver 23 with the subdural that Miss Keeven had. 24 Q You were asked about a CT or a bleed appearing on 25 a CT and that around this timeframe it would have been 101 1 about 90 to 95 percent accurate. 2 Do you recall that testimony? 3 A Yes, that's correct. 4 Q Does that percentage take into account when the 5 scan was done in terms of the development of the bleed? 6 A Sure. 7 Q And the type of bleed? 8 A Yes, sir. 9 Q So in this case let's say a subdural hematoma 10 which you've testified is a slow leak and may take time to 11 develop, once that were to develop a CT scan performed on 12 the brain would identify that with a fair amount of 13 accuracy? 14 A Yes, sir, that is correct. 15 Q It would all depend on when the scan was 16 performed? 17 A In relationship to the evolution of the subdural, 18 yes. 19 Q Then you were asked some questions about 20 Linette's return to baseline after the evacuation of the 21 subdural hematoma. 22 Do you recall that line of questioning? 23 A I do. 24 Q Am I correct in understanding your testimony that 25 before the development of the subdural hematoma Linette 102 1 had occasions for treatment for aspiration pneumonia on an 2 outpatient basis? 3 A That's right. 4 Q And then afterwards after the evacuation of the 5 subdural hematoma and discharge from St. Elizabeth's 6 Hospital she had reason to be repeatedly hospitalized on a 7 more long-term basis. Correct? 8 A Absolutely. There was a substantial difference 9 between the kind of behavior she exhibited up to the end 10 of December 2010 and after her discharge from St. 11 Elizabeth's in February 2011. 12 She was hospitalized with longer periods of time, 13 much more ill. Never was the same stage or appearance 14 that she had demonstrated in the latter part of 2010 and 15 before. 16 Q And that would include cognitive functioning? 17 A Oh, it was markedly reduced. 18 Q As well as her motor function? 19 A All aspects of her neurological examination were 20 reduced. 21 Q So is it fair to say that she was at a diminished 22 capacity to function as a consequence in your opinion of 23 the subdural hematoma? 24 MR. BURKE: Object to the form. 25 THE WITNESS: Unquestionably. 103 1 BY MR. BROWN: 2 Q Am I correct in understanding that this decline 3 from baseline in your opinion was a consequence of the 4 subdural hematoma? 5 A Yes, sir, it was. 6 Q There are some hospitalizations which you said 7 you reviewed regarding her pulmonary care. 8 As a consequence of the subdural hematoma after 9 her discharge from St. Elizabeth's was Linette at a 10 diminished capacity to protect her airway? 11 A She was and she had repeated episodes of 12 aspiration, more pronounced than she had in 2010. 13 Q Prior to the development of the subdural hematoma 14 is it your understanding that Linette was in a position to 15 better rebound from the complaints and the conditions that 16 she suffered? 17 A She was and did. 18 Q So in reviewing the totality of Linette's 19 treatment prior to the subdural hematoma Linette's 20 condition or medical history could be described as 21 instances of complaints with a rebound in short order? 22 A Yes. 23 Q Prior to the development of the subdural hematoma 24 did Linette have need for the type of around-the-clock 25 care that she required after the evacuation? 104 1 A No. 2 Q And you would relate all of that to the subdural 3 hematoma? 4 A Yes, sir, I would. 5 Q And with regard to her death, you would relate 6 her death as a consequence of the subdural hematoma by way 7 of a constellation of issues which she presented with 8 after the evacuation? 9 A Yes, sir. 10 Q You were asked some questions by counsel for St. 11 Elizabeth's with regards to Nurse Strong and her testimony 12 that she was aware of the fact that St. Elizabeth's had 13 the capacity to do brain imaging on a patient requiring a 14 vent. 15 Do you recall that testimony? 16 A Yes, I do. 17 Q Do you recall how Nurse Strong stated that she 18 was aware of that capability? 19 A I do not recall that. 20 Q Do you recall if it came from the hospital 21 itself? 22 A No, I don't think so. 23 Q Okay. You just recall that Nurse Strong stated 24 that she was aware? 25 A Yes. 105 1 Q Do you also recall from Nurse Strong's testimony 2 that she made an entry in Linette's medical record that 3 she informed Dr. Kini that they had the capacity to 4 perform a scan? 5 A That is definitely true. It's in the chart. 6 Q So based on Nurse Strong's testimony and Dr. 7 Kini's testimony there appears to be an inconsistency. 8 Correct? 9 MR. GOURLEY: Object to the extent the question 10 calls for the witness to give an opinion as to the 11 veracity of statements of witnesses in the case. 12 THE WITNESS: I'm not giving any opinions on 13 veracity. 14 I'm just saying there's an inconsistency between 15 the testimony of Dr. Kini and the documentation of 16 Nurse Strong. 17 BY MR. BROWN: 18 Q Do you recall reviewing the testimony of Dr. 19 Keeven in this matter? 20 A Yes. 21 Q Do you recall Dr. Keeven testifying that she was 22 instructed by Dr. Kini that St. Elizabeth's did not have 23 the capacity to perform a scan on a patient requiring a 24 ventilator? 25 A She so testified. 106 1 Q Is it fair to say from your reading of the 2 testimony in this matter that Nurse Strong's testimony is 3 consistent with Dr. Keeven's? 4 MR. GOURLEY: Same objection. 5 MR. NEVILLE: Join. 6 THE WITNESS: Miss Strong's testimony is 7 consistent with the testimony of Dr. Keeven. 8 BY MR. BROWN: 9 Q And a structural brain abnormality can cause 10 conditions which could also appear systemic. Correct? 11 A Yes. 12 Q So a structural brain abnormality can manifest 13 itself in signs or symptoms of other bodily functions. 14 Correct? 15 MR. BURKE: Object to the form. 16 THE WITNESS: Yes, it can, particularly if it's a 17 bilateral condition as this patient had. 18 BY MR. BROWN: 19 Q In a patient presenting to St. Elizabeth's 20 Hospital in the condition that Linette presented on 21 January 5th would you consider a structural brain 22 abnormality, in essence, a bleed, a concerning possible 23 diagnosis? 24 A Absolutely. 25 Q Could it be life-threatening? 107 1 A Yes. 2 Q Could it be devastating? 3 A Yes. 4 Q Would it be appropriate to promptly evaluate and 5 rule out the possibility of a structural brain 6 abnormality? 7 A It's required. 8 Q With regards to an EEG, are its findings affected 9 by the time at which the EEG is performed? 10 A Yes. It depends on -- for example, if a person 11 is having seizures, the timing of the EEG in relationship 12 to that seizure will determine the nature of the result. 13 Q So if you identify a patient who is seizing and 14 you perform an EEG contemporaneous to that, you may have 15 focal findings? 16 A Correct. You may see epileptic activity in a 17 focal manner. 18 Once the seizure is dissipated you will see just 19 a slowing, which is a so-called postictal EEG tracing. 20 Q And then I believe, finally, you were asked some 21 questions about what you reviewed before preparing your 22 opinions. 23 You identified some deposition transcripts, and 24 just for clarity of the record did you also review Lauren 25 Hughes and David Neighbors depositions? 108 1 A Yes. 2 MR. BROWN: That's all that I have. 3 REDIRECT EXAMINATION 4 BY MR. NEVILLE: 5 Q Just a couple of follow-up questions, doctor. 6 A Sure. 7 Q Do you know how many aspirations this patient had 8 prior to January 1, 2010? 9 For example, in the year 2010, throughout that 10 year. 11 A She had a number. Five or six. 12 Q How many did she have after January 1, 2011? 13 A Several there too. I mean, she had several 14 hospitalizations which were precipitated by that. 15 Q She had more or less? 16 A I don't know the exact number, but she had some 17 before and she did have some afterwards. 18 Q And her ability to protect her airway had been 19 worsening throughout the year of 2010. Correct? 20 A Well, she had more apparent or more frequent 21 episodes in latter 2010 caused by the fact that she had 22 increased seizures which she had not experienced before 23 because of the diminution of her medications. 24 Q You were asked a question by Nate about after the 25 evacuation she required more care. 109 1 Do you remember that question and your answer? 2 A Yes. 3 Q In fact, with the care she was getting she had, 4 as we've discussed, shown improvement both medically and 5 neurologically up to the point where she had her 30-minute 6 cardiac arrest at Barnes Hospital in February of 2011. 7 Correct? 8 A Let's look at it this way. She had a certain 9 baseline state up until the beginning of 2011. Certainly 10 she was much worse in that early January period. 11 She had some improvement after Dr. Poulos' 12 surgery on January 10th, but even at that point in time 13 she never improved to the same situation she had been in 14 in 2010 and she abruptly deteriorated further after the 15 Barnes episode in February. 16 Q My question then was addressing the time after 17 the surgery of Dr. Poulos up until her arrest at Barnes 18 Hospital. She was improving both neurologically and 19 medically? 20 A Yes, I agree with that. 21 Q And up to that point to two days before she 22 was -- they did, in fact, remove the tube? 23 A Yes, sir. 24 Q And then it was two days later, despite being in 25 the care of a hospital, where she aspirated in your 110 1 opinion as the precipitating factor of her 30-minute 2 cardiac arrest? 3 A Yes. 4 Q So that was an aspiration that occurred despite 5 being even in a hospital? 6 A Yes. 7 Q She dies in November not of that year, but the 8 following year. Correct? 9 A That is correct. 10 Q So that's a year and almost ten months later -- 11 A Yes. 12 Q -- from the cardiac arrest in February of 2011. 13 A A year and nine months. 14 Q A year and nine months. 15 I asked you cause of death and you were uncertain 16 as to the cause of death. Is that right? 17 A It was not clear. You asked me if it could be 18 myocardial infarction. I would not dispute that. 19 Q How can you relate, doctor, her dying a year and 20 nine months later of whatever, we don't even know for 21 sure, to the subdural hematoma that was addressed and 22 treated by Dr. Poulos? 23 A Sure. You look at her situation from January 24 2011 to November 2012. She was in the hospital repeatedly 25 with severe illnesses which made a stress on the patient's 111 1 system. Whether it was a myocardial infarction, pulmonary 2 embolism, another aspiration, I would relate that to the 3 severe illness that she sustained in that year and a half, 4 nineteen month period of time. 5 Q And you wouldn't relate it at all to the fact she 6 was having repeated aspiration pneumonias which was what 7 prompted her presentation to the hospital in the first 8 place in January of 2011? 9 MR. BROWN: Object to form. 10 THE WITNESS: She was qualitatively much worse 11 after January 2011 than she had been in 2010 or 12 before. 13 BY MR. NEVILLE: 14 Q She was significantly qualitatively worse after a 15 30-minute arrest at Barnes Hospital on February 22nd, 16 2011? 17 A Yes. 18 Q You're not giving an opinion, are you, doctor, 19 that her death or even the arrest was the result of brain 20 damage from the subdural hematoma, are you, sir? 21 A Not per se, but indirectly. 22 In other words, she was in a much diminished 23 capacity as a result of the subdural and her status in 24 January, February 2011 because of the failure to diagnose 25 and treat the subdural. 112 1 She was in a diminished state and much more 2 susceptible to things such as increased aspiration 3 pneumonia. 4 Q We would agree that her aspiration pneumonia, her 5 arrest were not neurologically mediated. 6 Would you agree to that? 7 A Yes, sir, I do agree to that. 8 Q In other words, structural brain damage did not 9 cause this medical arrest? 10 A Not directly. No, sir, it did not. 11 Q You've given your opinions regarding the 12 relationship of subdural and her death. 13 Would you agree that she had a reduced life 14 expectancy? 15 MR. BROWN: Object as to the form of the 16 question. 17 THE WITNESS: Over -- 18 BY MR. NEVILLE: 19 Q Overall. 20 A She did, yes. 21 Q She had significant problems that you know as a 22 neurologist typically result in people dying earlier than 23 the average life expectancy. Correct? 24 A I would agree with you that Miss Keeven did have 25 a reduced life expectancy even before these proceedings. 113 1 Q In fact, there are statistics on patients who 2 have neurologic injuries that result in earlier death 3 because of problems like she was having that led to her 4 hospitalization in January of 2011. Correct? 5 A Yes, sir. 6 MR. BROWN: Object. Vague. 7 BY MR. NEVILLE: 8 Q Aspiration pneumonia, repeated aspirations is 9 statistically a known factor causing earlier death. 10 Correct? 11 A Yes, sir. 12 Q Did she have other conditions that would impact 13 that in addition? 14 Her severe mental retardation. Is that an 15 independent risk factor as well? 16 A Yes, that and the seizures. 17 Q Anything else? 18 A Not that I'm aware of, no, sir. 19 Q She died at what age? 20 A Fifty-six, I think. 21 Q If you know, what would have been her life 22 expectancy given her underlying conditions? 23 A Well, let's look at 2010 and extrapolate. 24 At that time she was 54. She was Caucasian, 25 nonsmoker with mental retardation, seizures and 114 1 aspiration. 2 While a normal Caucasian female would have a life 3 expectancy at that juncture of approximately twenty-eight 4 years, I would reduce that by about 40 percent in her. 5 Q So basically given her underlying conditions you 6 would be of the opinion that her life expectancy was 7 reduced by 40 percent. Is that what you said? 8 A From that time on, yes. 9 In other words, instead of living to 84, she'd 10 live to 72, something like that. 11 Q And where do you get the life expectancy was 84? 12 A That's what the tables would tell us. 13 In other words, from the National Institutes of 14 Health there are tables. You can get the patient's age, 15 sex for general and to look at that person's particular 16 life expectancy you reduce it by the comorbid conditions 17 they may experience. 18 Q And have you done that? 19 A I've not done that. I'm just calculating that 20 from my experience with these tables. 21 MR. NEVILLE: All right. Thank you, sir. 22 THE WITNESS: Thank you, sir. 23 RECROSS EXAMINATION 24 BY MR. BURKE: 25 Q Doctor, did Linette remain in a deteriorated 115 1 state as a result of hypercapnia, poor ventilation and 2 respiratory arrest on January 4, 2011 at St. Joseph's 3 Hospital? 4 A She did. 5 MR. BURKE: Thank you. No more questions. 6 MR. NEVILLE: I'll do an E-Tran and four to a 7 page. 8 THE WITNESS: I would like to read. 9 MR. BURKE: Four and E-Tran. 10 MR. GOURLEY: Same with me. 11 MR. BROWN: Condensed, E-Tran, please. 12 (Thereupon, the deposition was concluded at 11:55 13 a.m.) 14 15 16 17 18 19 20 21 22 23 24 25 116 1 2 3 4 5 6 7 WITNESS 8 9 10 11 SWORN TO AND SUBSCRIBED BEFORE ME THIS 12 DAY OF , 2017. 13 14 15 16 Notary Public-State of Florida My Commission No. 17 Expires: March 28, 2018. 18 19 20 21 22 23 24 25 117 1 REPORTER'S DEPOSITION CERTIFICATE 2 3 STATE OF FLORIDA) 4 : SS 5 COUNTY OF DADE) 6 I, THERESA M. COHEN, FPR No. 558, a Florida 7 Professional Reporter, certify that I was authorized to 8 and did stenographically report the deposition of 9 KENNETH C. FISCHER, M.D.; and that the transcript is a 10 true record of my stenographic notes. 11 I further certify that I am not a relative, 12 employee, attorney, or counsel of any of the parties', 13 nor am I a relative or employee of any of the parties' 14 attorney or counsel connected with the action, nor am I 15 financially interested in the action. 16 17 Dated this 23rd day of September 2017. 18 19 20 21 Theresa M. Cohen 22 Florida Professional Reporter 23 24 25 118 1 CERTIFICATE OF OATH 2 3 STATE OF FLORIDA) 4 : SS 5 COUNTY OF DADE) 6 7 I, the undersigned authority, certify that 8 KENNETH C. FISCHER, M.D. personally appeared before me 9 and was duly sworn. 10 11 12 WITNESS my hand and official seal this 13 23rd day of September 2017. 14 15 16 17 18 THERESA M. COHEN 19 Notary Public-State of Florida 20 21 22 23 24 25 119 ERRATA SHEET In Re: KEEVEN vs. ST. ELIZABETH'S HOSPITAL DO NOT WRITE ON TRANSCRIPT. ENTER CHANGES ON THIS PAGE KENNETH C. FISCHER, M.D. September 21, 2017 U.S. LEGAL NO. 1602088 Page No. Line No. Change Reason _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ Under penalties of perjury, I declare that I have read the foregoing document and that the facts stated in it are true. ____________________ ________________________ Date KENNETH C. FISCHER, M.D. 120 WITNESS NOTIFICATION LETTER September 23, 2017 KENNETH C. FISCHER, M.D. c/o WEILMUENSTER LAW GROUP Attn: NATHANIEL O. BROWN, ESQUIRE 3201 West Main Street Belleville, Illinois 62226 In Re: KEEVEN vs. ST. ELIZABETH'S HOSPITAL DEPOSITION OF KENNETH FISCHER, M.D. OF 9-21-17 U.S. LEGAL SUPPORT JOB NO. 1602088 The transcript of the above-referenced proceeding has been prepared and is being provided to your office for review by the witness. We respectfully request that the witness complete their review within 30 days and return the errata sheet to our office. Sincerely yours, Theresa M. Cohen Florida Professional Reporter U.S. LEGAL SUPPORT, INC. One Southeast Third Avenue Suite 1250 Miami, Florida 33131 305) 373-8404 CC via transcript James E. Neville, Esq. Ken Burke, Esq. Jason M. Gourley, Esq. Nathaniel O. Brown, Esq.