0001 1 IN THE CIRCUIT COURT 2 TWENTIETH JUDICIAL COURT 3 PERRY COUNTY, ILLINOIS 4 5 WILLIAM KOONCE, as : Special Administrator : 6 of the Estate of RUBY : KOONCE, deceased, : 7 Plaintiff : v : 8 MARSHA G. RYAN, M.D., : SIU PHYSICIANS AND : 9 SURGEONS, INC., a :CAUSE NO. 2006-L-9 not-for-profit corporation, : 10 BRIGHAM ANESTHESIA : ASSOCIATES, LTD., a : 11 corporation, MEMORIAL : HOSPITAL OF CARBONDALE, a : 12 not-for-profit corporation, : DAVID A. GERDT, M.D., ACUTE : 13 CARE, INC., a corporation, : MARSHALL BROWNING HOSPITAL : 14 ASSOCIATION, a not-for-profit : corporation, : 15 Defendants : 16 17 18 * * * 19 Deposition of C. Andrew Heiskell, M.D. 20 Thursday, January 20, 2011 21 * * * 22 23 24 0002 1 * * * 2 Deposition of C. Andrew Heiskell, M.D. 3 Thursday, January 20, 2011 4 * * * 5 6 a witness herein, taken on behalf of the 7 defendants in the above-entitled cause of action 8 pursuant to notice and the Illinois Rules of 9 Civil Procedure by and before Debra A. Volk, 10 Court Reporter and Notary Public within and for 11 the State of West Virginia, at the office of 12 Premier Computer Services, 23 South University 13 Avenue, Morgantown, West Virginia 26508, 14 commencing at 4:23 p.m. 15 16 17 18 19 20 21 22 23 24 0003 1 APPEARANCES: 2 3 On behalf of the Plaintiff: 4 WILLIAM T. WALKER, Esquire 5 Law Offices of Bill T. Walker, 3388 Maryville 6 Road, Granite City, Illinois 62040 7 Telephone: (618) 797-1930 8 Fax: (618) 797-1935 9 10 JOHN ALLEMAN, Esquire 11 Alleman & Hicks, 310 East Main Street, 12 Carbondale, Illinois 62901 13 Telephone: (618) 549-8300 14 Fax: (618) 797-1935 15 16 On behalf of the Defendants, 17 Marsha G. Ryan, M.D., and SIU Physicians and 18 Surgeons, Inc.: 19 JAMES E. NEVILLE, Esquire 20 Neville, Richards & Wuller, LLC, 5 Park Place 21 Professional Centre, Belleville, Illinois 22 62226-0070 23 Telephone: (618) 310-3314 24 Fax: (888) 314-8696 0004 1 APPEARANCES (Cont.): 2 3 On behalf of the Defendant, 4 Marshall Browning Hospital: 5 KARA L. JONES, Esquire 6 Feirich Mager Green Ryan, 2001 West Main Street, 7 Suite 101, Carbondale, Illinois 62903 8 Telephone: (618) 529-3000 9 Fax: (618) 529-3008 10 E-mail: kjones@fmgr.com 11 12 On behalf of the Defendant, 13 Memorial Hospital of Carbondale: 14 KATHLEEN L. PINE, Esquire 15 Sandberg, Phoenix & Von Gontard, PC, 2015 West 16 Main Street, Suite 111, Carbondale, Illinois 17 62901 18 Telephone: (618) 351-7200 19 Fax: (618) 351-7604 20 E-mail: kpine@sandbergphoenix.com 21 22 23 24 0005 1 APPEARANCES (Cont.): 2 3 On behalf of the Defendant, 4 Brigham Anesthesia Associates, Ltd: 5 J. THADDEUS ECKENRODE, Esquire 6 Eckenrode-Maupin, 8000 Maryland Avenue, Suite 7 1300, St. Louis, Missouri 63105, 8 Telephone: (314) 726-6670 9 Fax: (314) 726-2106 10 E-mail: jte@eckenrode-law.com 11 12 On behalf of the Defendant, 13 David E. Gerdt, MD, and Acute Care, Inc.: 14 PHILIP L. WILLMAN, Esquire 15 Moser & Marsalek, PC, Saint Louis Place, 200 16 North Broadway, Suite 700, St. Louis, Missouri 17 63102 18 Telephone: (314) 421-5364 19 Fax: (314) 421-5640 20 21 22 23 ALSO PRESENT: 24 Cathy Boyle, R.N. 0006 1 I N D E X 2 WITNESS PAGE 3 C. Andrew Heiskell, M.D. 4 Examination By Mr. Neville ............ 7 5 Examination By Mr. Eckenrode .......... 86 6 Examination By Mr. Neville ............ 93 7 Examination By Mr. Willman ............ 100 8 Examination By Ms. Jones .............. 123 9 Examination By Ms. Pine ............... 124 10 Examination By Mr. Neville ............ 145 11 12 E X H I B I T S 13 PAGE 14 Heiskell Deposition Exhibit No. 1 .......... 7 15 Heiskell Deposition Exhibit No. 2 .......... 24 16 Heiskell Deposition Exhibit No. 3 .......... 24 17 Heiskell Deposition Exhibit No. 4 .......... 29 18 Heiskell Deposition Exhibit No. 5 .......... 34 19 Heiskell Deposition Exhibit No. 6 .......... 36 20 Heiskell Deposition Exhibit No. 7 .......... 38 21 Heiskell Deposition Exhibit No. 8 .......... 39 22 Heiskell Deposition Exhibit No. 9 .......... 132 23 24 0007 1 * * * 2 C. ANDREW HEISKELL, M.D. 3 being first duly sworn, was examined and deposed 4 as follows: 5 * * * 6 E X A M I N A T I O N 7 BY MR. NEVILLE: 8 Q. Doctor, would you state your name for 9 the record, please? 10 A. Charles Andrew Heiskell. 11 Q. You are a physician; correct? 12 A. I'm a physician, yes. 13 Q. General surgeon? 14 A. General and vascular surgeon. 15 Q. Doctor, let me hand you what we've 16 marked as Defense Exhibit No. 1, which contains a 17 letter that you wrote to Mr. Walker, your 18 curriculum vitae. 19 * * * 20 (Whereupon, Deposition Exhibit No. 1 21 marked for purposes of identification.) 22 * * * 23 BY MR. NEVILLE: 24 Q. The letter to Mr. Walker is what 0008 1 we've been provided as the disclosure, your 2 opinions in this case. That letter is dated July 3 13, -- no, June 3, 2010. 4 A. Correct. 5 Q. And you prepared that and sent it to 6 Mr. Walker? 7 A. That's correct. 8 Q. And then behind that is some kind of 9 a statement from the American College of 10 Surgeons; is that right? 11 A. That's correct. 12 Q. Did you provide that as well? 13 A. Yes, I did. 14 Q. And then behind that is your 15 curriculum vitae; is that correct? 16 A. That is correct. 17 Q. Is that up to date, Doctor? 18 A. I'll have to look at the last page. 19 This was updated as of August 29, so it's not up 20 to date. There's about a year that's missing. 21 Q. August 29 -- 22 A. 2009. August 19, 2009. 23 Q. Okay. 24 Any significant additions to that CV, 0009 1 Doctor? 2 A. There might be some additional 3 continuing medical education courses that are not 4 on here, but I can't think of anything else. 5 Q. Okay. 6 You're still on medical staff at Mon 7 General? 8 A. Monongalia General Hospital. 9 Q. Monongalia General Hospital; any 10 other hospitals, Doctor? 11 A. I am currently going back on staff at 12 West Virginia University Medical Center and I 13 believe I'm on staff as of this minute. I 14 operate up there tomorrow, so I have not been up 15 there operating regularly but I'm starting back 16 tomorrow. In the past I have but I'm going back 17 up part time. 18 Q. Okay. 19 When you say part time, do you mean 20 you'll have some patients there that you'll 21 operate on and see and -- 22 A. Primarily I'll be operating on 23 outpatients about one day a week. 24 Q. Okay. 0010 1 When was the last time you had staff 2 privileges at West Virginia Medical Center? 3 A. Oh, it was probably back in the '70s. 4 Q. Okay. 5 A. I was part time up there for a year 6 or so. 7 Q. Doctor, I see your CV publications 8 that are listed. I didn't see that any that 9 would be relevant to the issues in this case but 10 are any of them? 11 A. The answer is no, none are relative 12 to this case. 13 Q. Are you still licensed in both West 14 Virginia and Pennsylvania, Doctor? 15 A. That is correct. 16 Q. Have you ever been licensed in 17 Illinois? 18 A. During my residency training, yes. 19 Q. Was that a temporary licensure during 20 your residency? 21 A. I was there for six years, so it was 22 probably a permanent license. 23 Q. The reason I asked, my son is a 24 surgery resident in Ohio and his license is 0011 1 temporary, even though he's going to be there for 2 five years. 3 A. I believe mine was permanent. 4 Q. Did you then, you know, give up your 5 license in Illinois once you left? 6 A. That's correct. 7 Q. Okay. 8 Did you leave Illinois after you 9 completed your training in what? '70 -- 10 A. '75. That's correct. 11 Q. You're board certified I see, Doctor? 12 A. That's correct. 13 Q. I noticed that you recertify every 14 ten years. That's a requirement of the Board; 15 correct? 16 A. That's correct, to remain -- to 17 continue your certification you have to redo it 18 every ten years. You don't have to to continue 19 your certification. 20 Q. But if you want to, you have to 21 retest every ten years? 22 A. That's correct. 23 Q. But except this last time, it says on 24 your CV it's good until -- let me look here, 0012 1 longer than that. It expires July 1, 2017. 2 A. The way it works is if you -- once 3 you become certified, that's good for ten years. 4 Okay, then as you approach that ten-year mark, 5 three years before that ten-year mark is up, you 6 can take your test again. 7 So you can recertify -- you can take 8 the test at year seven for the ten years, it adds 9 on -- so it looks like it's out of whack. That's 10 the way they do it. That way if you don't pass it 11 that year, you have a chance to take it the 12 following year. 13 Q. Have you ever not passed it on your 14 first attempt? 15 A. I have passed it on my first attempt 16 each time. 17 Q. Okay. 18 Do you still hold any academic 19 affiliations? 20 A. I have been clinical associate 21 professor at WVU. That is changing with my 22 changing status. I don't know what I'm actually 23 called right now. 24 Q. Okay. 0013 1 Is that a volunteer position at the 2 medical center now? 3 A. No, it's not a volunteer. It's a paid 4 position. 5 Q. As of now? 6 A. I am told that I've been credentialed 7 and I'm told that everything is in order for me 8 to start working there tomorrow. That has not 9 happened yet, but I anticipate -- I have patients 10 scheduled, I have everything in place. With 11 academic institutions, sometimes what is supposed 12 to happen doesn't. 13 Q. But you will be paid for what? 14 Teaching? 15 A. The way my position is set up, I will 16 be compensated for the cases that I do with the 17 university taking out a certain percentage of 18 that. My teaching responsibilities are undefined 19 at this point. There is a shortage of residents 20 and I don't know exactly what the -- how many 21 hours I'll have residents with me, how many I 22 won't, but there will be residents. 23 Q. Okay. 24 Is there a surgery residency here at 0014 1 West Virginia? 2 A. Yes, there is. 3 Q. Is it general surgery, vascular? 4 A. They have general and they have 5 vascular, they have trauma, I believe, and 6 pediatric -- I don't know if they have a 7 pediatric surgery residency or not, but they do 8 pediatric surgery. 9 Q. Now, you're going to be compensated 10 for general surgery I assume? 11 A. I'll be compensated for general -- 12 probably general and vascular but I'll mostly be 13 doing outpatient general surgery. 14 Q. Are there vascular surgeons here in 15 Morgantown, Doctor? 16 A. Yes, there are. 17 Q. And I'm distinguishing them in the 18 sense that those are surgeons who did fellowships 19 in vascular surgery? 20 A. Well, not -- not all of them. In 21 other words, I did general and vascular because 22 when I trained there was no fellowship. One of my 23 partners, Doctor King, the same way. Fellowships 24 came around. I have two young partners who do 0015 1 vascular also, but vascular always has been a 2 part of general surgery until it started 3 branching out. So, now there are people who do 4 only vascular and there are people who do general 5 and vascular. 6 In Morgantown in the private practice 7 there are five people, six surgeons who do 8 general and vascular. At the University they 9 separate them out. The general surgeons don't do 10 vascular and the vascular surgeons don't do 11 general. 12 Q. Can you give us a breakdown of your 13 practice, Doctor, at the present time between 14 general surgery and vascular surgery? 15 A. It's -- I'm doing less vascular 16 surgery now because there are more interventional 17 endovascular procedures that -- the overall open 18 vascular surgery is diminished. I would say that 19 80 to 90 percent of my surgery is general and 10 20 to 20 percent is vascular. 21 Q. Doctor, have you been the subject of 22 -- a defendant in any malpractice cases? 23 A. Yes, I have. 24 Q. On how many occasions? 0016 1 A. I believe four, four or five I would 2 say. We can go through them if you want. 3 Q. Well, are any pending at the present 4 time? 5 A. There is one pending. 6 Q. And what's the nature of the 7 allegation against you in that case? 8 A. In that case it's a patient who came 9 in with an acutely inflamed gallbladder. We 10 operated, she developed a complication, she's 11 doing fine but she had to have more surgery and 12 I'm being sued because of possible neglect in her 13 opinion. 14 Q. Was that -- 15 A. Or negligence in her opinion. 16 Q. Was that a laparoscopic -- 17 A. It started as laparoscopic. I opened 18 her up because her gallbladder was so inflamed. 19 Q. And what was the nature of the 20 complications? 21 A. She had a common bile duct injury. 22 Q. Have you given a deposition in that 23 case? 24 A. No. 0017 1 Q. Have all the cases that have been 2 filed against you been brought here in this 3 county we're in now in Morgantown -- 4 A. That's correct. 5 Q. -- West Virginia? 6 A. Yes, that's correct, Monongalia 7 County. 8 Q. Okay. 9 What's the name of that case that's 10 pending? 11 A. It was Ruschenberg, but she got 12 married and I don't know the name. We can supply 13 it to you later. 14 Q. Tell me about the other malpractice 15 cases. 16 A. The first one was probably in the 17 late '70s or '80s, a woman who had a breast lump. 18 I took it out. The pathologist told me it was a 19 breast cancer on a permanent section -- or on a 20 frozen section. So I went ahead and did a 21 mastectomy. It may have been a permanent or a 22 frozen, I'm not sure which, but, anyway, the 23 pathologist said it was a cancer, discussed the 24 situation with the patient, the options, she 0018 1 elected a modified radical mastectomy. I did the 2 modified radical mastectomy. 3 Several days later the pathologist 4 said, say, you know there wasn't any cancer there 5 in the second specimen, so I went back and 6 re-looked at the first specimen and I don't think 7 it was a cancer either. I told the patient, 8 lawsuit, everybody got sued; the pathologist was 9 the only one who had to pay. 10 Q. Okay. 11 No payment on your behalf? 12 A. No payment on my part -- on my 13 behalf. 14 Q. Okay. 15 What about the next case? 16 A. The next case was an attorney who was 17 operated on by my partner, had a laparoscopic 18 nissen fundoplication. Everything went well, went 19 home, developed a leak seven or ten days later, 20 came in to the emergency room, I was on call; I 21 took care of him. He had a stormy course, ended 22 up long hospitalization but did all right, sued 23 us all. I was dropped. My partner was dropped. 24 Q. Okay. 0019 1 No payment on your behalf? 2 A. No payment on my behalf. 3 Q. And then what was the next one? 4 A. The next case was a patient who had 5 an operation and I think it was a laparoscopic 6 converted to open procedure, postoperatively had 7 problems, a workup showed no leak or other 8 problems. He felt worse, transferred him to the 9 University several days later for their workup, 10 which was the same as our workup, showed a 11 perforation of the intestine. I was sued on 12 that. I settled that case, or my insurance 13 company settled that case. 14 Q. Did you give a deposition in that 15 case? 16 A. Yes, I believe I did. 17 Q. How about in any of the other cases 18 that you've described already? 19 A. I have given depositions in all but 20 the last one, I think. 21 Q. And then that -- does that bring us 22 then to the one that's currently pending? 23 A. I'm sorry, I've given depositions in 24 all but the one that's currently pending. 0020 1 Q. Okay. 2 Are we now up to the currently 3 pending case? 4 A. There seems like there's one more, 5 but I can't remember what it is. 6 Q. Okay. 7 A. None that I've had -- none that any 8 money has been paid out on my behalf. 9 Q. Tell me, Doctor, a little bit about 10 your medical/legal involvement like involved in 11 this case here. When did you first start doing 12 these kinds of reviews in cases? 13 A. Okay. Just a little background -- 14 Q. Sure. 15 A. -- my grandfather was a surgeon, my 16 father was a surgeon, my older brother went to 17 college, premed, couldn't make it so he became a 18 lawyer. Then he became -- 19 Q. Organic chemistry is what made me 20 decide to be a lawyer. 21 A. -- he became a plaintiff's attorney. 22 My sister became a defense attorney. My son 23 became a corporate attorney. We have 24 conversations. I complained about the malpractice 0021 1 situation, they all said that you need to have 2 better experts because there is no case out there 3 that doesn't have a doctor testifying that 4 something wasn't done correctly. 5 So I agreed to start doing this, 6 initially just -- meanwhile lawyers would call me 7 up and say, hey, would you look at this and I 8 would look at it and give them an opinion, and 9 they would take me out to dinner or something 10 like that. So, anyway, I started doing it, I 11 advertised a little, it became busy and that's 12 where we are today. I no longer advertise. I no 13 longer seek this stuff out, but I still do some. 14 Q. When did you start though? 15 A. Probably 1990s, early '90s. 16 Q. Okay. 17 And where did you advertise when you 18 advertised? 19 A. I initially I advertised in a 20 plaintiff's periodical, whose name escapes me 21 right now, and then in a defense DRI, yeah, DRI, 22 and I also went to some conventions and I had 23 exhibits. I also advertised in a book of -- in 24 an expert witness book published by somebody. 0022 1 Q. Have you been associated with any 2 expert witness locating services? 3 A. I've had cases referred to me but not 4 in terms of anything where I would give them back 5 money for the referral. So maybe two or three 6 cases I've had referred by an expert witness 7 service. 8 Q. Do you remember what the names of 9 those services were? 10 A. I do not. 11 Q. How were you contacted in this case? 12 A. It was the ATLA journal that I -- 13 that I advertised in. How was I -- how did I get 14 involved in this case? 15 Q. Yes. 16 A. Attorney Bill Walker called me, 17 talked to me about this, sent the records and I 18 reviewed them. 19 Q. Have you reviewed any other cases for 20 Mr. Walker before or since? 21 A. I have. 22 Q. How many? 23 A. Probably less than five. I don't 24 know that for sure, but probably less than five. 0023 1 I think only two or three. 2 Q. The first time that you were involved 3 in a case with Mr. Walker, was it through one of 4 these expert locating services? 5 A. Not to my knowledge. 6 Q. Where were the other cases that 7 Mr. Walker asked you to review pending? 8 A. I do not recall. 9 Q. Have you ever testified as an expert 10 in a medical malpractice case pending in 11 Illinois? 12 A. And you're talking about deposition 13 or trial? 14 Q. Either, just any case where you've 15 been disclosed as an expert. 16 A. In Illinois? 17 Q. Yes. 18 A. Yes. 19 Q. How many times? 20 A. One in '05, one in '06. 21 Q. Are you referencing a list of cases? 22 A. Yes, I am. 23 Q. May I see it? 24 A. Sure. This is a deposition list 0024 1 (indicating), okay, and this is a trial list 2 (indicating). 3 Q. Okay. 4 Are these extra copies, Doctor? 5 A. Yeah, you can have those. 6 Q. Okay. 7 Would this contain, then, all the 8 depositions that you've given? 9 A. Hand it back to me and let me see the 10 latest date. Yes, this is up to the first of 11 December of 2010. 12 Q. Okay. 13 We'll just mark that as Exhibit 2 and 14 then the trial list, Exhibit 3. 15 * * * 16 (Whereupon, Deposition Exhibit Nos. 17 2 and 3 marked for purposes of identification.) 18 * * * 19 BY MR. NEVILLE: 20 Q. Doctor, is the trial list up to date? 21 A. I believe so. The last trial was 22 October of 2010. I don't recall any since then. 23 Q. Okay. 24 So the trial list, Doctor, would 0025 1 these be where you've appeared live in court? 2 A. That's correct. 3 Q. And the deposition list may be cases 4 in which you've testified live at trial but may 5 also be depositions taken in lieu of your 6 in-court appearance? 7 A. That's correct. 8 Q. Okay. 9 I don't see any cases in which you've 10 testified -- oh, yes I do, never mind, Walker, 11 there it is. Thank you. 12 Doctor, what percent of your income 13 is derived from medical/legal involvement like in 14 this case? 15 A. Less than 5 percent or less than 10 16 percent. 17 Q. What is the breakdown, Doctor, of 18 cases -- let's talk about those that you review 19 between plaintiff and defense. 20 A. I looked at that right before we 21 started and it looked like of the 64, okay, 22 scratch that, let me start over again. 23 I don't have any idea. I can give 24 you on those I've given deposition testimony and 0026 1 trial testimony, but most of the stuff I review, 2 there's no case there and so I don't keep any 3 record of it. 4 Q. What is it on deposition testimony? 5 A. I looked before you came in and 6 counted on deposition and there has been 64 7 depositions, 20 were defense, 44 were plaintiffs, 8 so about one-third for defense, two-thirds for 9 plaintiff. On the trial list there have been 17 10 court appearances, hold on. 11 Six were defense and 11 were 12 plaintiff, so also roughly one third, two-thirds. 13 Q. Has that been fairly steady since you 14 started doing this kind of work, Doctor? 15 A. No, initially it was more defense and 16 fewer plaintiffs. Lately it's more plaintiffs. 17 Q. Okay. 18 In the last two years or three years, 19 what has it -- 20 A. Mostly plaintiffs. You can see it on 21 there. 22 Q. What are your charges, Doctor, for 23 review and doing depositions and/or trial? 24 A. I have -- I can pull it out right 0027 1 here. Initially if we -- somebody wants us to 2 look at a case, the charges, I believe, are $1125 3 based on a three-hour assumed time investment. 4 If it looks like it's going to be more than that, 5 I believe it's around $375 an hour in addition to 6 that. My deposition rate is more than that and my 7 trial rate is $2500 a half day, and I have that 8 information here. I'll lay my hands on it i just 9 a second. 10 Q. How many cases do you review a year, 11 Doctor, would you estimate? 12 A. It's highly variable. At one point 13 it was a fair number, currently it's -- I would 14 estimate less than 20 to 25 a year. 15 Q. What was it when it was a fair 16 number? 17 A. Oh, it might have been twice that. 18 Q. What period of time were you 19 reviewing around 50 cases a year? 20 A. We can look at the deposition list 21 and see when the highest activity was. It seems 22 to me it was about ten years ago. 23 Q. Okay. 24 And how long was it at that pace, 0028 1 approximately? 2 A. Just a couple years, it was right 3 before they passed all the malpractice laws. 4 Q. And then since then, what has it been 5 up until the more recent times that it's been 6 slower? 7 A. Since then it's been slower. It just 8 gradually wound down. You know, as I say, I 9 don't advertise or do anything like that anymore, 10 so that may have played a role. 11 Q. Do you have any estimate of the total 12 number of cases you've reviewed? 13 A. I do not. 14 Q. Depositions you said was higher; what 15 is the rate for depositions? 16 A. Okay, so my initial review fee is 17 $1125, my hourly review rate is $375. Sometimes 18 we're asked to look at a case within 14 days, 19 that's $500 an hour if it's an expedited review. 20 Why don't I just hand you this? 21 Q. Oh, all right. 22 A. And it explains pretty much 23 everything. 24 Q. Okay. Good. 0029 1 Let's mark that as Exhibit 4. 2 * * * 3 (Whereupon, Deposition Exhibit No. 4 4 marked for purposes of identification.) 5 * * * 6 BY MR. NEVILLE: 7 Q. Let's go to this case then, Doctor. 8 A. Okay. 9 Q. What did you review in this case? 10 A. In this case I reviewed the medical 11 records of the Marshall Browning emergency room, 12 the St. John's Hospital-Springfield, medical 13 records that resulted in the patient's -- that 14 ended with the patient's death I reviewed the 15 Ruby Koonce procedure list of the -- from the 16 anesthesiologist, Doctor Majid, the deposition of 17 Doctor Majid, the Patel medical records, the 18 David Gerdt, M.D., depo, the Memorial Hospital of 19 Carbondale records going back many years and I 20 have misplaced but did review the records 21 involving the three or four days in the hospital 22 and operation. 23 Okay. I had them in my hand two days 24 ago and I do not know where they are. 0030 1 Q. Do you have all the materials that 2 you reviewed here with the exception of the 3 hospital record for the surgery? 4 A. That is correct. 5 Q. Okay. 6 A. And then you mentioned, and I pulled 7 the statement of the American College of 8 Surgeons, I have other information here -- 9 Q. Okay. 10 A. -- and just so you understand how I 11 do it is when I start a review, I have a 12 Dictaphone in my hand, as I read through the 13 thing I dictate notes to myself, which are just 14 summaries of those. So, for each one of these I 15 have notes on my -- that I've dictated that I 16 review at the end and then at the end I have 17 notes that I have made prior to each meeting, 18 deposition, trial. 19 Q. Okay. 20 May I see those? 21 A. Yes. So this, for instance, is -- 22 well, that's sort of self-explanatory. 23 Q. So these dictations here are actually 24 yours as you're reading through the materials? 0031 1 A. Right, and there's nothing -- it's 99 2 percent what's already in the materials that I 3 think is important, so that when I go back I 4 don't have do review the whole deposition or the 5 whole medical record again. 6 Q. Do you recall when you were 7 contacted, Doctor? 8 A. Now, that's work product. I don't 9 know if you're allowed to have that or not. I 10 just -- 11 Q. Well, it's my position since it's in 12 your possession, it's -- yes, I have the right to 13 it. 14 A. Okay. 15 Q. If Mr. Walker could tell us if he 16 agrees or not. 17 A. It was somewhere -- it appears that 18 it was somewhere around May of 2010. 19 Q. Okay. 20 MR. NEVILLE: Bill, may I see 21 it? 22 MR. WALKER: Yes. 23 MR. NEVILLE: Okay. 24 THE WITNESS: And I believe 0032 1 Mr. Walker came and talked to me first. It was 2 the initial -- my introduction to the case. 3 BY MR. NEVILLE: 4 Q. So as I understand it, so 5 approximately a week before May 25, 2010, 6 Mr. Walker met with you and I guess discussed the 7 case -- 8 A. Okay. I presume; I don't know the 9 dates. Whatever you have there I'll presume is 10 right. 11 Q. He -- follow-up to his visit a week 12 before last. 13 A. Okay. 14 Q. So -- 15 A. That would make -- that would sound 16 reasonable to me. 17 Q. And with this letter he was sending 18 you the materials to go over? 19 A. Okay. 20 Q. Is that correct? 21 A. It sounds like it. 22 Q. And then he asked you to prepare a 23 report that would support the lawsuit; is that 24 right? 0033 1 A. Right, if I agreed with his position. 2 Q. Okay. 3 Oh, I guess it may have gone to Cathy 4 Boyle. I see. Oh, wait a minute, he left it with 5 you, I'm sorry and then you sent some other FedEx 6 stuff. I got you. 7 MR. NEVILLE: Bill, what I'd 8 like to do, I don't have to do it now but I'd 9 like to get a copy of his dictation of the review 10 of the materials. 11 MR. WALKER: Why don't you 12 just mark it as a group exhibit? 13 MR. NEVILLE: That way I 14 won't take the time now to peruse it. 15 THE WITNESS: Yeah, I mean 16 there's pages and pages. You know, basically 17 those are summaries of all of these. We can get 18 them to you or we can put them together when 19 we're done here and give them to the court 20 reporter, however you want to do it. 21 MR. NEVILLE: It probably 22 makes sense to do it as a group exhibit, and I'll 23 just keep them in the folders you have them, 24 okay? 0034 1 THE WITNESS: Okay. 2 MR. NEVILLE: So we'll make 3 that No. 5 4 * * * 5 (Whereupon, Deposition Exhibit No. 5 6 marked for purposes of identification.) 7 * * * 8 THE WITNESS: That's not in 9 the folder. 10 MR. NEVILLE: Does that go in 11 this folder? 12 THE WITNESS: I don't know. 13 MR. NEVILLE: Okay, we'll put 14 it there. 15 THE WITNESS: There was a 16 free page that was floating around here. 17 MR. NEVILLE: Three? 18 THE WITNESS: A free page. 19 MR. NEVILLE: Oh, I just put 20 that right on the top here. 21 THE WITNESS: Okay, let me 22 look at that before you -- 23 MR. NEVILLE: I thought I had 24 taken it out because it says Page 2 -- 0035 1 THE WITNESS: I pulled that 2 out for a reason here. 3 MR. NEVILLE: I'm sorry. 4 THE WITNESS: Oh, okay, I 5 know what that was. 6 MR. NEVILLE: Does it go on 7 top here? 8 THE WITNESS: I have no idea. 9 Once I get back to the office I can figure out 10 where they all go and I'll have them all sorted 11 out by the time of trial, but you can -- 12 MR. NEVILLE: It looks like 13 it's in order. That's the very first page. 14 THE WITNESS: I would doubt 15 that. Let me just look here. Let me have that 16 whole folder back. 17 I think you may be right because 18 these numbers seem to be in order. So I think 19 you may be right. 20 MR. NEVILLE: And that other 21 one there, let's mark that as an exhibit too, and 22 if that's just got miscellaneous stuff, that's 23 fine. 24 THE WITNESS: Yes, 0036 1 miscellaneous stuff and letters. 2 MR. NEVILLE: Why don't we 3 put this in with it? 4 THE WITNESS: Okay. 5 MR. NEVILLE: We'll put in 6 the two letters from Mr. Walker that we were just 7 referencing and we'll mark that as -- 8 THE WITNESS: This is a 9 floater. 10 MR. NEVILLE: Okay. 11 Can it float into group Exhibit 6 or 12 do you want it separate? 13 THE WITNESS: Let me see what 14 it says here. Yeah, it can go in there. 15 MR. NEVILLE: Okay. It looks 16 like Page 2 of something. We'll probably see that 17 somewhere. 18 THE WITNESS: Yeah. That will 19 show up somewhere. 20 MR. NEVILLE: Well, I'm going 21 to put it in Group Exhibit 6 for now and I 22 understand I might put it someplace else. 23 * * * 24 (Whereupon, Deposition Exhibit No. 6 0037 1 marked for purposes of identification.) 2 * * * 3 BY MR. NEVILLE: 4 Q. Okay. 5 Now what else? 6 A. Okay, the -- this is my CV. You 7 already have that. 8 Okay, did you see this? What is this? 9 Q. That's what I marked -- and that's 10 the disclosure. 11 A. These are some faxes about this case. 12 It has to do with -- it looks like other experts. 13 Q. Okay. 14 Mr. Walker sent you Doctor Berger, 15 William Berger, report; is that right? 16 A. That's what it looks like. It looks 17 like a letter summarizing his report, correct. 18 Q. And then Doctor Kenneth Stein's 19 report; is that correct? 20 A. Correct. 21 Q. Okay. 22 And what else? 23 A. This one we've gone through. 24 Q. Right. 0038 1 A. This I asked one of my staff to see 2 if the American College of Anesthesiology had 3 anything similar to the American College of 4 Surgeons about the responsibility of the 5 anesthesiologist in the preop evaluation of the 6 patient. That is from that web site. 7 Q. Okay. 8 Then we'll mark that as Exhibit 7. 9 * * * 10 (Whereupon, Deposition Exhibit No. 7 11 marked for purposes of identification.) 12 * * * 13 BY MR. NEVILLE: 14 Q. Okay. 15 A. And then these are the notes I made 16 in the last three or four days specifically for 17 this deposition. 18 Q. Okay. 19 Why don't we do this, this is three 20 pages, two and a half -- two pages and one line 21 -- 22 A. What does that say? 23 Q. Was patient getting pain meds at time 24 of -- 0039 1 A. Okay, that was a question I had. 2 Okay. 3 Q. So this consists of two pages of 4 handwritten notes plus one line -- 5 A. Okay. 6 Q. -- on Page 3. Why don't we mark that 7 as Exhibit 8? 8 * * * 9 (Whereupon, Deposition Exhibit No. 8 10 marked for purposes of identification.) 11 * * * 12 BY MR. NEVILLE: 13 Q. Is that you beeping? 14 A. No, it's my beeper and Cathy will 15 take care of it. 16 Q. Okay. 17 Doctor, going to Exhibit 1 now, which 18 is your letter that you sent to Mr. Walker dated 19 June 3, 2010, I assume that was prepared by you 20 after you had reviewed all this material? 21 A. That's correct. 22 Q. And that contains the opinions that 23 you formed in the case; is that right? 24 A. That's a summary, yes. There were 0040 1 several areas that I thought she acted 2 negligently. This was just a summary. 3 Q. As I see it, Doctor, essentially your 4 conclusion is that Doctor Ryan did not perform a 5 proper preop evaluation? 6 A. That's correct. 7 Q. Now, this patient was referred to 8 Doctor Ryan by her primary care physician for 9 evaluation of possible gallbladder problems; is 10 that right? 11 A. That's correct. 12 Q. By the way, I did not see Doctor 13 Tucker's records in your -- 14 A. This is all I have except for the one 15 I told you that was missing. 16 Q. So you have not reviewed Doctor 17 Gladstone Tucker's records; is that true? 18 A. I believe that -- I'm aware of the 19 fact that Doctor Tucker thought the patient had 20 gallbladder disease and referred. I don't know 21 where I came upon that information but this is 22 everything I have. 23 Q. Well, he's listed as a referring 24 doctor -- 0041 1 A. Okay, that may be. That may be 2 where -- 3 Q. I believe. 4 A. Yeah. 5 Q. Now, she was seen by Doctor Ryan 6 on -- 7 MR. WALKER: Can we take a 8 short break? 9 MR. NEVILLE: Sure. 10 * * * 11 (Brief break) 12 * * * 13 BY MR. NEVILLE: 14 Q. Getting back, Doctor, I also do not 15 see the records, Doctor Ryan's office records; 16 did you review those? 17 A. I did not see those. 18 Q. Okay. 19 A. I'm aware, though, through the other 20 records that she was seen by Doctor Ryan between 21 the ER visit and the hospitalization. 22 Q. I may have forgotten to ask you, 23 Doctor, you said that you reviewed some other 24 cases for Mr. Walker. Are any other cases 0042 1 pending right now with Mr. Walker? 2 A. Not that I know of, but it's entirely 3 possible. You know, I'll review a case and send 4 a report or talk to the attorney by phone and a 5 year may go by and I get a phone call, we want to 6 take your deposition. So I don't recall. I'm 7 not actively working with him on anything at the 8 current time. But if there is something out there 9 that's in the process; that may be. 10 Q. On average, Doctor, how many 11 depositions would you estimate you give a year? 12 A. We can tell that on -- exactly on 13 that list. 14 Q. Okay. 15 And the same with trials, it would be 16 on your list? 17 A. It's on the list. 18 Q. Okay. 19 Have you ever testified, Doctor, in 20 any cases similar to this case in the opinions 21 that you've given? 22 A. I believe that I have. 23 Q. Do you know the names of any of those 24 cases or where they were pending? 0043 1 A. If you give me my list back, let me 2 look at it and I might be able to tell you. The 3 deposition list, I think, might be helpful. 4 Q. Okay. 5 A. The Anthony Washington case in '07 6 may be similar. There was one case that involved 7 preoperative evaluation and then surgery. So 8 that's -- that would be the only one that rings a 9 bell because I think it was out of Ohio. 10 Q. Okay. 11 And what was your opinion in that 12 case generally? 13 A. Again, it's been awhile but as I 14 recall that patient had -- was referred for a 15 cardiac evaluation, which didn't ever take place 16 and they went ahead and operated and had 17 problems. 18 Q. And it was your opinion that they 19 should not have done the surgery until the 20 cardiac evaluation had been done? 21 A. That -- I believe that's correct. 22 Q. Any other cases other than that one? 23 A. Not that I -- again, there are 60 24 some cases here that I cannot recall off the top 0044 1 of my head that have anything similar to this. 2 Q. Okay. 3 The other cases that you reviewed for 4 Mr. Walker, do you remember the names of any of 5 those cases? 6 A. This list indicates -- would indicate 7 that. 8 Q. Other than the ones you've given 9 depositions in -- 10 A. No, I cannot unless there is one out 11 there pending that I haven't actually looked at 12 in months. 13 Q. Okay. 14 What percent of your professional 15 time, Doctor, is devoted to the medical/legal 16 matters like this? 17 A. Less than 10 percent. 18 Q. Okay. 19 Let's get back to where we were. So 20 she was referred -- it's your understanding she 21 was, the patient was referred to Doctor Ryan by 22 Doctor Tucker for possible gallbladder problems; 23 correct? 24 A. That's correct. 0045 1 Q. She had been and was seen by Doctor 2 Ryan in the office on July 13, '05? I understand 3 you don't have those records but you knew she was 4 seen sometime between -- 5 A. Correct. 6 Q. -- ER at Marshall Browning and the 7 hospitalization for surgery at Carbondale 8 Memorial? 9 A. That's correct. 10 Q. Okay. 11 So then, Doctor, you're not aware of 12 what history she gave -- she, being the patient, 13 and/or family members with her gave to Doctor 14 Ryan with regard to her work up and evaluation in 15 the ER at Marshall Browning; is that correct? 16 A. Somewhere in there, maybe her 17 deposition, she indicated that she had been told 18 that her heart was fine. 19 Q. Yes, she was asked in her 20 deposition -- 21 A. Yeah, she, being the patient, 22 according to Doctor Ryan's deposition, the 23 patient had been told that her heart was fine. 24 Q. And did you also see where Doctor 0046 1 Ryan was told that the ER physician thought it 2 was gallbladder problems? 3 A. That sounds familiar. 4 Q. You were faxed -- where is that, some 5 other reviewers opinions by Mr. Walker on June 3, 6 2010, which is the same day, I guess, this letter 7 was prepared. Did you review these as well? 8 A. If I -- if they're there and they 9 came on that day, I did review them. 10 Q. Okay. 11 A. I don't remember whether I reviewed 12 them before or after I did my letter or not. 13 Q. Okay. 14 Doctor, I assume in your own practice 15 you obtain a history from patients; is that 16 correct? 17 A. Correct. 18 Q. And you rely on your patients in 19 relating their histories to you, you have no 20 reason to doubt their veracity or ability to 21 convey the information; isn't that true? 22 A. That's true. 23 Q. Now, did you get a sense from your 24 review of Doctor Ryan's deposition or any of the 0047 1 records as to whether Doctor Ryan had had prior 2 experience with this patient and her family? 3 A. I'd like to expand on the last 4 question a little bit more. When you say you rely 5 on -- how did you say you rely on their veracity? 6 In other words, if the patient tells me I had a 7 heart attack last year, I believe them. Okay. If 8 they come in and say I'm having pain, I think 9 it's my gallbladder, I don't necessarily decide 10 right then based on that that it's their 11 gallbladder. Okay? 12 Q. Oh, I understand. 13 A. Okay, so I just wanted to clear. 14 Q. I appreciate that. 15 But you take them for what they're 16 telling you is true in terms of their subjective 17 complaints? Obviously, a medical diagnosis is 18 something that you make? 19 A. That's correct. 20 Q. Okay. 21 You were not aware, I take it, that 22 this patient had been seen by -- at her primary 23 care physician's office on two occasions between 24 the ER visit and the hospitalization; correct? 0048 1 A. That's correct. 2 Q. And that would be, I assume, 3 important information with regard to two 4 additional evaluations by her primary care 5 physician; correct? 6 A. It could be. 7 Q. Now, the preoperative evaluation that 8 Doctor Ryan -- strike that. 9 Were you aware that when the patient 10 came to see Doctor Ryan on July 13, 2005 she had 11 already had a gallbladder ultrasound performed? 12 A. And it was negative, yes. 13 Q. Okay. 14 Do you know what her complaints were 15 when she presented to Doctor Ryan's office? 16 A. I know what her complaints were when 17 she presented to the emergency room, but I don't 18 think I've seen Doctor Ryan's office records, so 19 I do not. 20 Q. Okay. 21 Actually, Doctor Ryan was asked this 22 in her deposition and she testified that when the 23 patient came to see her she was complaining of 24 abdominal pain and she was complaining of pain in 0049 1 her chest, her epigastrium, her right upper 2 quadrant radiating to her right back. She said 3 that this had been going on for two years but had 4 been nearly persistent since July 9. 5 She said it would ease off if she ate 6 fewer fats. It was exacerbated by fat, dairy and 7 fried foods and there was some relief with 8 Mylanta. 9 A. Okay. 10 Q. No relief with Prilosec. She had 11 been seen in the ER at DuQuoin on July 11 where 12 she did -- where she had a gallbladder ultrasound 13 that was negative. Her cardiac evaluation was 14 negative according to her and her family. Her 15 husband and son were in attendance. 16 That was the history. Do you recall 17 that from her deposition? 18 A. Yes. 19 Q. Okay. 20 Now, Doctor Ryan ordered a HIDA scan? 21 A. Correct. 22 Q. And that is a test to further 23 evaluate the gallbladder; correct? 24 A. That's correct. 0050 1 Q. Before we get to the HIDA scan, 2 Doctor, the history that I just related to you 3 from her deposition, you would agree that that 4 kind of history with those complaints and 5 symptoms would be consistent with gallbladder 6 problems; correct? 7 A. There are several -- well, let me put 8 it this way. There's a couple flags in there that 9 say there might be more than this. 10 Q. And those flags being what, Doctor? 11 A. Number one, the length of her 12 symptoms. 13 Q. Two years you mean? 14 A. Two years. In view of that 15 gallbladder ultrasound, which showed the 16 gallbladder wall was only two mm thick, that 17 doesn't go along -- a gallbladder that's been 18 acting up for two years, the wall should be 19 thicker than that and the fact that she had had 20 increasing pain and still a PIPIDA scan that was 21 in some ways questionable, I think the PIPIDA 22 scan reading, as I recall, was not this one has 23 gallbladder disease but it was consider 24 medications. If she was on pain medicine that can 0051 1 give you an abnormal PIPIDA scan. And one of my 2 questions was if she was in the emergency room on 3 one day and had severe pain and anybody gave her 4 any pain medicine and she has a PIPIDA scan after 5 that, I could make your PIPIDA scan be abnormal 6 if you're on pain medicine. 7 So the flags are her symptoms were 8 severe but her gallbladder was paper thin and not 9 markedly inflamed. So then you got to start 10 asking yourself what's going on here. 11 Q. The HIDA scan, I'm back to the 12 history and the symptoms -- her complaints; 13 that's consistent with gallbladder disease; is it 14 not? 15 A. That's correct. 16 Q. Okay. 17 And, Doctor, to further evaluate, 18 given the negative ultrasound on the gallbladder 19 ultrasound, Doctor Ryan ordered a HIDA scan? 20 A. That's correct. 21 Q. And that would be an appropriate test 22 to order to evaluate -- 23 A. That's correct. 24 Q. And the HIDA scan was done on July 0052 1 14; correct? 2 A. I assume so. 3 Q. Okay. 4 And that showed an ejection fraction 5 of 8 percent; correct? 6 A. Correct. 7 Q. That's abnormally low; is it not? 8 A. That's correct. 9 Q. And that would be consistent with 10 biliary dyskinesia; correct, Doctor? 11 A. That's correct. 12 Q. Now, while we're talking about some 13 of the red flags that you mentioned, following 14 the surgery, the gallbladder was evaluated by the 15 pathologist? 16 A. Correct. 17 Q. And it confirmed chronic 18 cholecystitis? 19 A. Mild chronic cholecystitis. So that 20 doesn't go along with the symptoms. Okay. She 21 was having -- when she came into the hospital she 22 was having severe pain. When she went to the 23 emergency room she was having severe pain. The 24 symptoms of biliary colic of which you would 0053 1 expect in somebody with an abnormal PIPIDA and a 2 negative ultrasound, and that's, you know, 3 nausea, vomiting, cramping, pain after eating 4 that usually goes away in an hour. 5 Somebody who has symptoms severe 6 enough to require hospitalization usually it's 7 not due to mild chronic cholecystitis. 8 Q. Have you yourself, Doctor, had that? 9 A. Have I ever had a gallbladder attack? 10 Q. Yes. 11 A. No, not to my knowledge. 12 Q. I'm told that they can be very, very 13 painful. 14 A. They can and when they are of that 15 magnitude, you need to get an ultrasound looking 16 for gallbladder wall thickening, looking for 17 pericholecystic fluid, looking for evidence of 18 severity and none was done in the emergency room. 19 When they did the ultrasound there was no 20 evidence of anything severe. They did the PIPIDA 21 scan. It indicated gallbladder disease but all 22 I'm saying is a little red flag should have gone 23 up saying her symptoms are much worse than what 24 we see in her objective evaluation. 0054 1 Q. By history to Doctor Ryan this 2 patient had had a negative cardiac workup; 3 correct? 4 A. By the patient's history. I'm 5 talking about a confirmed test, the other two. I 6 didn't see any negative cardiac workup within 7 recent years. 8 Q. Well, Doctor Ryan understood she had 9 had that done just four days before her surgery 10 at the Marshall Browning Hospital ER? 11 A. That's correct, she understood but 12 she needed to confirm that. If the patient came 13 in and said I have an abnormal PIPIDA scan, she 14 would certainly confirm that by getting the 15 results. If the patient came in and said my 16 ultrasound showed stones, she would certainly 17 confirm that before going ahead with surgery. 18 Q. Is it your testimony, Doctor, that 19 the standard of care required Doctor Ryan to 20 repeat a cardiac workup that the patient reported 21 she had just had and was negative? 22 A. That's not what I'm saying. 23 Q. What are you saying, then, with 24 regard to that? 0055 1 A. She should have gotten evidence that 2 this was done. As a matter of fact, she had 3 evidence; the troponin was on the chart. The EKG 4 was on the chart before surgery. So I mean she 5 had the evidence right there. 6 Q. Which EKG was on the chart? 7 A. The EKG done at the hospital ordered 8 by the anesthesia nurse practitioner. 9 Q. Is there any indication in the record 10 or in her deposition that Doctor Ryan was aware 11 that the anesthesia had ordered an EKG? 12 A. She said she saw the EKG. 13 Q. She saw it at her deposition. 14 A. No, she said she saw it before 15 surgery. 16 Q. No. She testified she had never seen 17 it until the day of her deposition. 18 A. Okay. You're right. The EKG -- the 19 troponin she said she saw before. 20 Q. The troponin she had seen. 21 A. Yeah. 22 Q. And that troponin level, Doctor, the 23 test result said there should be -- do you have 24 that Marshall Browning record? 0056 1 A. I had it all until you -- 2 Q. The Marshall Browning record -- I saw 3 it someplace here. 4 A. It said something, assessment and 5 evaluation recommended or something to that 6 effect. 7 Q. Right. 8 And wouldn't it be reasonable for 9 Doctor Ryan to conclude that that assessment and 10 evaluation had been done as part of the cardiac 11 workup, which was reported negative? 12 A. She may conclude that but you still 13 have to document things. As I said, you know, 14 just because a patient says that a result 15 occurred doesn't mean that they were right. 16 Q. The troponin, Doctor, which we were 17 referencing at this level indicates that there 18 should be a risk stratification and assessment 19 required and this is in a patient who has been 20 evaluated in the ER for chest pain; correct? 21 A. Yes. 22 Q. That's the history that Doctor Ryan 23 was aware of? 24 A. So the surgeon needed to get the 0057 1 results of that evaluation on the chart. 2 Q. Now, I know you didn't see Doctor 3 Tucker's records, Doctor, but does the fact that 4 he evaluated this patient or his office did on 5 two occasions between the ER visit and the 6 hospitalization; does that have any bearing or 7 would that have any bearing on your opinions in 8 this case as to whether Doctor Ryan had to do 9 something more than she did in this case? 10 A. If his records indicated that he had 11 done a stress test, a cardiac cath or some other 12 evaluation of the heart and those were negative, 13 yeah, that would be something that would be 14 important. 15 Q. Have you been informed, Doctor, of 16 the opinions of Doctor Bower, who is the 17 plaintiff's disclosed cardiology expert in this 18 case? 19 A. If that was in one of the letters I 20 got, I may have seen that. It was a cardiology 21 -- I can't imagine a cardiologist who would say 22 that this patient should have gone to surgery. 23 Q. You have not been -- I guess my 24 question still stands, Doctor. Have you read or 0058 1 been informed of what Doctor Bower's opinions are 2 in this case? 3 A. Let me look at those faxes because -- 4 Q. It's not -- 5 A. It's not in there? 6 Q. Right. 7 A. Okay. Then I'm not aware of them. 8 Q. In terms of the preoperative 9 evaluation for the gallbladder, in your opinion 10 was what Doctor Ryan did appropriate for the 11 gallbladder? 12 A. For the gallbladder, yes. 13 Q. Okay. 14 If I understand your testimony, it 15 is your opinion that she needed to get a copy of 16 the cardiac workup and put it in the chart; is 17 that -- 18 A. I think the best way I can summarize 19 it is she needed to be sure this patient didn't 20 have serious heart disease with the number of 21 risk factors she had, with the fact that she was 22 diabetic, with the fact that her sister died of 23 an MI, with the fact that her mother died of an 24 MI, I think in the patient's best interest you 0059 1 needed to be sure that her cardiac risk was 2 minimal or that she was in the best shape she 3 could be in from a cardiac point of view. 4 Q. Was it reasonable to conclude that 5 this evaluation had in fact been done when the 6 patient was in the ER four days before or two 7 days before, her office visit? 8 A. If the patient said it was done, you 9 can conclude it was done but you better not 10 operate until you see those results. And that 11 makes it easy if it was done, just tell me who to 12 call and have them fax me over the stress test or 13 the cardiac cath or however it is they evaluated 14 her. 15 Q. In Doctor Bower's deposition, and 16 that's the cardiologist that was disclosed by the 17 plaintiff in this case, he was asked about 18 whether Doctor Tucker needed to do a cardiac 19 workup if given the history that one had been 20 done in the ER on July 11 and Doctor Bower 21 testified he would not expect the primary care 22 doctor to do a workup on the 13th when he saw the 23 patient given that the patient told him that in 24 the ER she was told her heart was in great shape. 0060 1 This is the cardiologist saying based 2 on that -- 3 A. Doctor Tucker wasn't going to operate 4 on this patient. Doctor Tucker wasn't going to do 5 anything to put this patient through a lot of 6 stress. 7 Q. But Doctor Tucker was the one who 8 actually referred the patient to Doctor -- 9 A. It doesn't matter. 10 Q. Let me finish the question. 11 A. Okay. 12 Q. Doctor Tucker, knowing all of this, 13 referred the patient to Doctor Ryan, a surgeon, 14 presumably if confirmed to remove her gallbladder 15 surgically; correct? 16 A. Correct. 17 Q. And you're telling me that Doctor 18 Tucker, the primary care doctor, would have no 19 responsibility to give essentially surgical 20 clearance for the patient when he sends the 21 patient there with all this knowledge? 22 A. If he -- I'm not -- I'm not saying 23 anything about Doctor Tucker. I'm talking about 24 the surgeon and it's the surgeon's responsibility 0061 1 to do an adequate history and physical and make 2 the patient at the best risk possible in a 3 patient who has the risk factors, was a diabetic, 4 and has the history that she had, then it's 5 absolutely imperative that you get a cardiac 6 evaluation. 7 If she forgot cardiac evaluation and 8 she could get those reports and on the chart so 9 she knew that the patient's heart was fine, no 10 problem. 11 Q. And basically what you're saying is 12 it was not, in your opinion, it was not 13 reasonable or within the standard of care for her 14 to have relied on the statement of the patient 15 that that had been done just two days before? 16 A. That's correct. 17 Q. Okay. 18 And -- 19 A. You can rely on that but you have to 20 confirm that, okay, you can say okay, I believe 21 you, I just want to get those records from Doctor 22 Tucker. I want to see what the stress test 23 shows; we can go from there. 24 Q. Now, Doctor, as a surgeon, when you 0062 1 are going to do this evaluation that includes the 2 heart, do you -- in every instance do you get a 3 cardiac evaluation with a cardiologist prior to 4 surgery you perform? 5 A. In every instance that is an older 6 female who is diabetic, who has a strong family 7 history of heart disease, who smoked for 20 or 30 8 years, who has to all the risk factors, 9 absolutely. 10 Q. And -- 11 A. Absolutely I get an evaluation, okay, 12 now it could be a good family physician who has 13 done the stress test, who has the data there, if 14 they have an echocardiogram that says they have a 15 good, strong heart, if they have a stress test 16 that said that there's absolutely no evidence of 17 ischemia, then I will rely on it. But you have 18 to have the objective data. 19 Q. Do you tell the internist, Doctor, or 20 the family practice physician how to conduct the 21 preoperative evaluation of your joint patient? 22 A. Yeah. 23 Q. You do? 24 A. Because I'm the one who does the 0063 1 surgery. It's my responsibility to make sure that 2 patient gets cared for. I don't tell them to go 3 order those tests. I'll order the tests or I'll 4 get the cardiac consult. It's my responsibility 5 when that patient is in surgery. 6 Q. So it's -- is it your opinion that 7 it's inappropriate and a deviation from the 8 standard of care for a general surgeon to defer 9 to the primary care physician in terms of 10 determining what preoperative tests are necessary 11 to give clearance for surgery? 12 A. That's a broad statement that I don't 13 agree with. I'm saying that if the surgeon is 14 taking a patient to the operating room, it's his 15 responsibility to make sure that the patient is 16 in the best optimal shape and to assure himself 17 that the proper preoperative evaluation has been 18 done. Consultations are required at times. Okay. 19 It's just like the statement by the American 20 College of Surgeons. That's the standard. 21 Q. Doctor, in this instance presumably 22 there was a consultation with an ER physician who 23 had done a cardiac workup two days before; isn't 24 that true? 0064 1 A. Yeah, and that's exactly right and 2 that's where the data is there. The EKG is 3 abnormal; the troponin is abnormal. All she had 4 to do was get that; she had the troponin. It was 5 abnormal. Don't operate. Get her heart in good 6 shape first. 7 For crying out loud, you know, her 8 mother died of an MI, her sister died of an MI, 9 she's in the same age group, she's diabetic. 10 Q. Where did you get that her mother and 11 her sister died of an MI? 12 A. From one of these charts. 13 Q. Do you expect that a general surgeon, 14 Doctor, can interpret EKG's? 15 A. Yeah. 16 Q. Do you interpret your own EKGs? 17 A. I can interpret my own EKGs. I don't 18 issue a report to be charged for, but I can look 19 at an EKG and -- especially if it's printed out 20 that it's abnormal, you know. 21 Q. That's not uncommon, is it, Doctor? 22 A. No, it's not uncommon. That's right. 23 And if it says consider anterior infarct, well 24 then, you know, I'm considering anterior infarct. 0065 1 Q. Don't you think the ER doctor did 2 just that when he saw that? 3 A. That's fine; then I'll call him up 4 and tell him to send over the records. 5 Q. And -- now you get the records 6 and the ER to your -- to the history you got 7 a negative cardiac workup and you get the 8 records -- 9 A. Where is this negative cardiac workup 10 you're talking about? A positive EKG and an 11 elevated troponin. There's nothing negative 12 about that. 13 Q. What does that tell you, Doctor? 14 A. It tells me that something is going 15 on with her heart. She's having an acute cardiac 16 event. Why would your troponin be up? There's no 17 other reason. 18 Q. There are no other reasons for 19 elevated troponin? 20 A. No other reasons to have that EKG and 21 an elevated troponin other than some ongoing 22 acute coronary event. 23 Q. Well, Doctor Ryan doesn't have that 24 EKG, Doctor. What she has -- 0066 1 A. There's an EKG in the chart the 2 morning of surgery. She could have gotten the 3 EKG she said in her deposition, a phone call she 4 could have gotten. 5 Q. If she was aware that it had been 6 ordered. 7 A. Well, if somebody has that history 8 and she's concerned about the heart by asking if 9 the cardiac workup was done, just get it into the 10 chart. Okay, if the patient was right, I mean 11 you can't believe the patient on everything. 12 If you come in and tell me you have a 13 kidney stone, do I just give you morphine or do I 14 do a test to confirm it? 15 Q. Do you defer, Doctor, to -- well, if 16 you don't defer, then do you call in a cardiac 17 evaluation yourself in every instance like this 18 case? 19 A. Not in every instance, many times if 20 I'm not convinced that that patient has had an 21 adequate workup then I will get one before I 22 operate. 23 Q. Okay. 24 Is there anything else in the 0067 1 preoperative evaluation then that you think she 2 should have done? 3 A. I don't think she did an adequate 4 history and physical. You know, I asked you for 5 that record but apparently -- in her deposition 6 she incredibly says she doesn't care about family 7 history. Okay. I mean if -- if -- 8 Q. Show me that, Doctor. I don't recall 9 that. I could be wrong. What's her priory 10 experience with this patient; do you know? 11 A. Let me answer your first question 12 first. 13 Q. Okay. 14 A. All right. 15 I want to look at my records for just 16 a second and what I want are my records of her 17 deposition. 18 So if anybody sees those -- let me 19 look at that one. 20 She's asked about her family history, 21 she says I don't know about her family history. 22 She is asked if she would have inquired of the 23 patient her family history, she says not likely. 24 That's where I got that. 0068 1 Q. Uh-huh (yes). 2 A. So had she asked and found out the 3 mother had died of heart disease and the sister 4 died of heart disease, she should have said, hey, 5 you know there's a chance you may have heart 6 disease too. 7 Q. Other than she understood she just 8 had a negative cardiac workup two days earlier? 9 A. That's fine, you know, confirm it, 10 just show it to me, let's get it on the chart and 11 we'll -- 12 Q. I understand. That's why I don't 13 want to hit this over and over again. Obviously 14 if she had had the cardiac -- the complete 15 cardiac workup -- 16 A. Yes. 17 Q. -- that Doctor Ryan was assuming had 18 been done, whether or not it's in her chart then 19 I assume you wouldn't be critical of her going 20 and taking her to surgery; correct? 21 A. I would be critical if she didn't 22 confirm the fact that the cardiac workup was 23 negative and have it on the chart. 24 Q. I mean the important thing is whether 0069 1 it was done or not; correct? 2 A. That's the important thing but also 3 it's important for Doctor Ryan's sake to have it 4 on the freaking chart. 5 Q. Okay. 6 Do you know what Doctor Ryan's 7 experience is -- has been with this patient prior 8 to this? 9 A. I know that the patient liked her 10 very much. I know the family sent her a letter 11 afterwards. I know that the experience had been 12 good. I don't remember where I got that 13 information from and that's a good thing. 14 Q. She operated on her actually, Doctor, 15 it's a point of fact on a couple of occasions -- 16 A. Okay. 17 Q. -- for different conditions. 18 A. Okay. 19 Q. So she did have a, you know, fairly 20 good -- fairly good knowledge of this patient and 21 her family. 22 A. Then why didn't she get the cardiac 23 workup? 24 Q. Because she believed the patient and 0070 1 her family when told that she just had one two 2 days before and it was negative. 3 A. Well, why didn't she act on the 4 troponin? 5 A. Because there had been a cardiac 6 workup done, Doctor, and that's what the test 7 said -- 8 Q. There hadn't been a cardiac -- 9 A. -- it said cardiac stratification and 10 assessment, which was done. 11 A. Required, required, as she presumed. 12 Q. She said it was done in the ER. 13 A. It wasn't done in the ER. They 14 didn't do any of that in the ER. 15 Q. Doctor, she was told they did. 16 A. So we're supposed to believe 17 everything a patient says and not do what's 18 right? 19 Q. No, I guess we can -- we can believe 20 when we want to and then not when we want to, I 21 guess. Is that what you're telling us? 22 A. I can believe that they think they 23 had a cardiac workup but you've got to confirm 24 that. 0071 1 Q. Now you said, Doctor, there's some 2 question or criticism of her history and 3 physical? 4 A. Yeah, because she didn't get a family 5 history. 6 Q. Do you -- you haven't reviewed her 7 records. You don't even know what her history 8 and physical consisted of. 9 A. She said it in her deposition. I 10 just read that to you. 11 Q. Oh, the statement that she didn't 12 know what the family history was of the cardiac 13 disease? 14 A. Yeah. 15 Q. Well, she did do a history and 16 physical, Doctor. 17 A. But it sounds like it was inadequate 18 because she should have gotten the history of the 19 chest pain. 20 Q. But, Doctor, would that have made any 21 difference to her since she just had a cardiac 22 workup two days before? 23 A. She hadn't had a cardiac workup. 24 Q. If we assume she had a cardiac workup 0072 1 two days before, Doctor, -- 2 A. Okay. 3 Q. -- that additional history would not 4 have made any difference, would it? 5 MR. WILLMAN: Object to the 6 form of the question. 7 THE WITNESS: If we assume -- 8 let me just explain my position here. 9 BY MR. NEVILLE: 10 Q. I want you to answer my question. 11 A. I am. I'm going to do that. If we 12 assume that she had a cardiac workup recently and 13 it was normal, Doctor Ryan still had an 14 obligation to see it with her own eyes and get it 15 on the chart. 16 Q. I understand that. 17 A. And if those were -- if that was 18 true, then she could operate. Okay. 19 Q. Okay. 20 A. If that's what you want me to say. 21 That's what you want me to answer? 22 Q. Yes. 23 A. Okay. 24 Q. Doctor Ryan also ordered in addition 0073 1 to the HIDA scan a CBC and comprehensive panel, 2 you saw that? 3 A. Yes. 4 Q. That showed an elevation of the white 5 count with a left shift; you saw that? 6 A. Yes, and that's the same one that 7 showed the elevated troponin. 8 Q. No. 9 A. Then one she got when she got to the 10 hospital then? 11 Q. Right. 12 A. Okay. 13 Yeah, I don't recall those numbers 14 but I'll assume you are correct. 15 Q. That would be consistent with 16 gallbladder disease; correct? 17 A. It would be consistent with a lot of 18 things, which gallbladder disease is one, yes. 19 Q. And the physical findings that Doctor 20 Ryan had on her examination of the patient were 21 also consistent with gallbladder problems; 22 correct? 23 A. Again, I haven't seen that history 24 and physical by Doctor Ryan in the hospital. You 0074 1 showed it to me real briefly. I'd be happy to 2 look at it again but I believe your answer is 3 correct, your answer would be correct. 4 Q. You're welcome to look at it. I 5 don't want to cut you short. 6 A. Yeah, let me just look at that one 7 more time and what I'm looking at is the history 8 and physical from the hospital record on the day 9 of surgery or the hospitalization for surgery. 10 That's Doctor Ryan's writing; is that 11 correct? 12 Q. Oh, this is the short stay -- 13 A. I'm looking for the history and 14 physical that Doctor Ryan did when she came into 15 the hospital and as I say I hadn't seen it. Do 16 you know where it is? 17 Q. No, that's the short stay. That's 18 for outpatient surgery. I'm referring to the 19 office record, Doctor. 20 A. And I haven't seen that. Okay. 21 Q. That gives greater detail -- 22 A. I'd be happy to look at that at any 23 point. 24 Q. Okay. 0075 1 I don't have it with me, Doctor. 2 A. Okay. No problem. 3 Q. I do know that in her deposition she 4 was asked about her physical exam and she 5 described the findings. So I know you've seen -- 6 A. Okay. 7 Q. -- reference to it in her deposition. 8 A. Okay. 9 Q. You know, we kind of went over some 10 of it about the belching -- or maybe we didn't do 11 that. 12 A. I'll suffice it to say this patient 13 has symptoms of gallbladder disease, okay. 14 Q. I guess the bottom line is she -- in 15 retrospect, Doctor, she had gallbladder disease 16 and she also had cardiac disease; is that safe to 17 say? 18 A. I would say in retrospect she had 19 both. 20 Q. Yeah. 21 A. It's not retrospect though because 22 she had evidence of both before the surgery. 23 Q. Well, Doctor, it is retrospect 24 because how many doctors saw her and felt it was 0076 1 gallbladder? 2 A. She had evidence of heart disease 3 preop and the troponin and the EKG. Just because 4 the ER doctor was wrong and just because no one 5 else looked at the labs, anesthesia ordered the 6 EKG again in the hospital. 7 Q. Now, when she was admitted to the 8 hospital, that was in the afternoon of July 15, 9 the late afternoon before the morning surgery; 10 correct? 11 A. Yes, I believe so. 12 Q. And that was initially -- I mean that 13 was arranged by Doctor Ryan for a 23-hour 14 observation, thus you were looking at that -- 15 A. Yeah, there's something about she 16 wants to call the office and somebody told her -- 17 yes. 18 Q. Doctor Ryan came to see her and 19 evaluate her in the hospital that evening; 20 correct? 21 A. Correct. 22 Q. And you know from your review of the 23 records that was before that EKG was done; 24 correct? 0077 1 A. I believe it was after the EKG was 2 ordered but before it was completed or something 3 like that. 4 Q. How do you conclude it was after it 5 was ordered but before -- 6 A. I thought -- I thought the anesthesia 7 -- the EKG was ordered by the anesthesia PA. I 8 thought I recalled that she saw her before Doctor 9 Ryan but I may be wrong about that. 10 Q. We look at the progress notes and the 11 orders; it would appear that Doctor Ryan saw her 12 first because her -- because of the order in the 13 chart, it would appear that that wasn't on the 14 chart when Doctor Ryan was there. 15 A. Okay. 16 Q. Do you have any reason to dispute 17 that? 18 A. I have no reason to dispute that. 19 Q. Then the surgery was done in the 20 morning and without any apparent complications; 21 correct? 22 A. Correct. 23 Q. The patient was in fact discharged 24 that afternoon of the day of surgery -- 0078 1 A. Correct. 2 Q. -- relieved of her preoperative 3 abdominal pain; correct? 4 A. Well, she would have had pain 5 medicine on board, so -- 6 Q. But, I mean, she reported that she -- 7 her pain was relieved. She had pain meds on 8 board before and still had pain, didn't she? 9 A. I understand what you're saying, but 10 I don't think there were no medicines on board 11 when she was discharged and that can make the 12 pain disappear. 13 Q. Isn't it true she was given pain meds 14 and on a pain pump for her hospitalization the 15 night before the surgery and was still 16 complaining of significant pain? 17 A. Correct. 18 Q. Intractable pain? 19 A. Correct. 20 Q. That intractable pain was reportedly 21 gone when she left the hospital; correct? 22 A. After she had received a lot of 23 medication. That's correct. I mean you're not 24 trying to assume that she wasn't having a heart 0079 1 attack, are you? 2 Q. Doctor, I'm not trying to assume 3 anything. I asked you didn't she go home 4 discharged relieved of her severe intractable 5 abdominal pain that she had preoperatively? 6 A. That's correct. 7 Q. Now, again, you didn't see Doctor 8 Ryan's office records but she has a note of a 9 phone call from the patient's son on the 19th, 10 okay, two days after the surgery and he reported 11 that she went home the afternoon of surgery, her 12 abdominal pain was gone, which was also reported 13 to Doctor Ryan by the nurses at the hospital the 14 day of surgery. 15 A. Okay. 16 Q. And then 24 hours -- within 24 hours 17 of the phone call, which was on the 19th, she 18 developed weakness and fainting. 19 A. Yeah, her septum ruptured at that 20 point. So prior to that point, prior to the 21 weakness and fainting, the septum was intact, 22 okay, although it was dying. Okay, and when it 23 ruptured, that's when the acute cardiac symptoms 24 occurred. 0080 1 Q. Now, are you -- are you a 2 cardiologist, Doctor? 3 A. No, I'm not a cardiologist. 4 Q. Are you going to be offering any 5 opinions about cardiology in this case? 6 A. Only what's in the chart. 7 Q. Okay. 8 Oh, so when she presented -- 9 A. Yeah, when she -- and they did the 10 echocardiogram and referred her and all that. 11 Q. Okay. 12 Now, the second opinion, Doctor, that 13 I saw in your report is that the surgery resulted 14 in this patient's death, is what's in your 15 report? 16 A. Correct. 17 Q. Is that an opinion you hold to a 18 reasonable degree of medical certainty? 19 A. Let me just see how that's worded 20 because I don't think you're stating it 21 correctly. 22 Q. All right. 23 A. Okay. And so now I need to find that 24 letter back again. 0081 1 Q. The very last sentence. If that's not 2 your opinion -- 3 A. These tests show that the patient was 4 having an acute cardiac problem that needed 5 treatment. Instead Doctor Ryan performed surgery, 6 which resulted in the patient's death. That's 7 correct. 8 Q. Is it your opinion, Doctor, that the 9 surgery performed by Doctor Ryan caused this 10 patient's death? 11 A. My opinion is this patient was having 12 a heart attack. She was operated upon, that 13 increased the workload on the heart and as a 14 result of that the patient died. I'm not saying 15 that she wouldn't have died otherwise, okay, but 16 I think the chances of surviving would have been 17 far higher and would have been excellent had she 18 been treated appropriately from the start. 19 Now, that dates back to the ER visit. 20 Q. Given the severe intractable 21 abdominal pain that she was having from her 22 gallbladder in retrospect, Doctor? 23 A. I do not believe it was from her 24 gallbladder. Let me just go on record as saying 0082 1 that. 2 Again, we talked about how bad the 3 gallbladder -- how the ultrasound showed minimal 4 problems, the pathology report showed mild 5 disease. I think a large portion of her pain was 6 due to her heart. 7 Q. If a patient was having, Doctor, 8 severe intractable gallbladder pain, wouldn't you 9 agree that that would produce a stressful -- 10 stress on an underlying cardiac condition? 11 A. That's correct and we see that all 12 the time and determine whether that's the cause 13 of the pain, you can do a bunch of tests, you 14 repeat the ultrasound, that gallbladder wall, 15 should be very thick. There should be 16 pericolicystic fluid; there should be evidence 17 that there's acute gallbladder problem going on. 18 There is no evidence anywhere in here 19 that this patient was having an acute gallbladder 20 problem. 21 Q. But the answer to my question, and 22 I'll make it a hypothetical question. 23 A. Okay. 24 Q. A patient who is, in fact, having 0083 1 severe intractable abdominal pain from a 2 gallbladder problem, that would produce stress on 3 any underlying heart condition; would you agree? 4 A. Yeah, I would better word it that an 5 acutely inflamed gallbladder, especially one 6 that's ready to perforate would cause severe 7 stress on the heart. Okay, and make somebody with 8 an underlying cardiac problem worse. 9 So there are times that you need to 10 operate. 11 Q. That's where I was going. 12 A. Okay. 13 Q. If plaintiff's retained cardiologist 14 concluded from his review of all the materials 15 that there is no indication that surgery 16 performed on July 16, 2005, caused a worsening in 17 this patient's cardiac condition, would you have 18 any reason to disagree or not believe? 19 A. I would defer to his expertise. 20 However, I would find it very hard to believe 21 that somebody who has an ongoing acute cardiac 22 event, any stress would make them worse and 23 surgery is a stress. 24 Q. But you would defer to a cardiologist 0084 1 on that subject? 2 A. If a cardiologist told me that, I'd 3 get a second opinion. 4 Q. Okay. 5 Evidence of whether or not surgery 6 adversely impacted on an underlying heart 7 condition would be the patient's vital signs 8 immediately before, during and after surgery; 9 wouldn't that be true? 10 A. That's just one of the things. 11 Q. Sure. 12 A. And we know this woman died of a 13 ruptured septum, okay. We can time out when her 14 symptoms started. 15 Q. Yeah, to -- 16 A. You have EKG evidence. 17 Q. Is it your opinion that she was 18 having a heart attack, an ongoing heart attack 19 from July 11 up until July 19? 20 A. From the time of her elevated 21 troponin and abnormal EKG, she was having a 22 coronary event. Okay. Proper management would 23 have required hospitalization, workup by the 24 cardiologist, probably angiography, maybe a stent 0085 1 and she probably would be alive today. 2 Q. Again, Doctor, is that something that 3 you can give an opinion on to a reasonable degree 4 of medical certainty or would you defer to 5 cardiology experts in that area? 6 A. I would -- I would tell you that 7 there's no question in my mind that most people 8 who come in with chest pain, elevated troponin 9 and abnormal EKG, most of them if evaluated 10 properly on, cardiac patients will live by far. 11 Q. Some don't? 12 A. Some don't. 13 Q. In this -- I assume, Doctor, you 14 don't have an opinion in this case whether this 15 patient would have based on what the findings 16 were? 17 A. Three wrongs don't make a right, 18 okay? 19 Q. Doctor, I just want you to answer my 20 question. 21 A. Okay. 22 Q. You're not offering an opinion in 23 this case as to whether this patient would have 24 survived her underlying heart condition if 0086 1 treated earlier, are you? 2 A. My opinion would be most likely she 3 would have survived it if treated when she came 4 to the emergency room. 5 Q. And upon what do you base that other 6 than just your general knowledge of statistics of 7 patients who are treated? 8 A. Statistics. 9 Q. Okay. 10 MR. NEVILLE: That's all I 11 have. Thank you, Doctor. 12 THE WITNESS: You're welcome. 13 MR. ECKENRODE: Doctor, since 14 I'm here I'll go next. I don't have very many 15 questions for you, I don't think. 16 * * * 17 E X A M I N A T I O N 18 BY MR. ECKENRODE: 19 Q. In reviewing your June 3, 2010, 20 report, you obviously reference only Doctor Ryan 21 in that report. I conclude from that that at 22 trial your opinions will be confined to Doctor 23 Ryan? 24 A. I don't ever know how to answer that 0087 1 question. If on the stand somebody asks me if I 2 think the ER doctor screwed up, I would say yes 3 and if on the stand they asked me if I think the 4 anesthesiologist screwed up, I would say yes. 5 Now, you guys decide what I'm allowed 6 to say or not, okay? But there's clearly in my 7 opinion negligence on both of those other two 8 doctors. 9 Q. Well, let me ask you about that then, 10 Doctor. 11 As far as the anesthesiologist is 12 concerned, you obviously are not a trained 13 anesthesiologist; is that correct? 14 A. That's correct. 15 Q. And you have reviewed the deposition 16 of plaintiff's expert anesthesiologist, Doctor 17 Berger, in this case; is that right? 18 A. I don't believe so. 19 Q. I thought you said earlier you had. 20 A. Did I? 21 Q. Well, you've seen Doctor Berger's 22 opinion letter at least; is that true? 23 A. I've seen it, but it's been awhile 24 since I've looked at it. 0088 1 Q. I guess my only question is to the 2 extent that Doctor Berger offers opinions in this 3 case, would you defer to Doctor Berger, the 4 plaintiff's retained anesthesia expert? 5 A. I'd have to look and see here. Hold 6 on. I agree with this letter. Okay. I don't 7 remember how you worded the question, but I agree 8 with that letter. 9 Q. My question is: To the extent that 10 Doctor Berger has offered opinions in this case 11 and that's his area of specialty, is it your plan 12 at trial to defer opinions about the anesthesia 13 care then to him? 14 A. I don't have any plans for trial. 15 I'll answer the questions you guys ask. 16 Q. Is there anything about Doctor 17 Berger's opinion letter that you disagree with? 18 A. No. 19 Q. Is there any additional opinion about 20 anesthesia care in this case that you believe 21 Doctor Berger didn't express? 22 A. Yeah, the one thing that -- the one 23 thing that I questioned was who is responsible 24 for the nurse practitioner? Okay. She obviously 0089 1 knew this patient needed an EKG and she ordered 2 it. So who is she working for? The hospital? 3 The anesthesia group? Who is responsible for her 4 because the ball sort of got dropped there. 5 Q. Is that a question that you have 6 investigated and plan to express an opinion about 7 or is that simply a question you still have? 8 A. That's a question I still have. 9 Q. And without the answer to that 10 question, you're not going to express a 11 particular opinion on that topic until you have 12 more information; is that what you're telling us? 13 A. That's correct. 14 Q. All right. 15 Insofar as the anesthesia evaluation 16 is concerned, you mentioned earlier that one of 17 the things you did was to look up and find this 18 practice advisory for pre-anesthesia evaluation, 19 which you got from the Journal of Anesthesiology 20 off the Internet; is that correct? 21 A. That's correct. 22 Q. And we marked that previously as 23 Exhibit 7 and can I conclude that you looked for 24 this because prior to your finding this, you 0090 1 weren't aware specifically of what existed with 2 regard to any documentation or requirements for 3 anesthesia, pre-anesthetic workup; is that 4 correct? 5 A. No. 6 Q. Is my statement correct, Doctor? 7 A. No. 8 Q. All right. 9 Then correct my statement. You were 10 aware of prior to looking for this what the 11 pre-anesthesia evaluation workup should have 12 included? 13 A. I can best answer that by saying I'm 14 aware that anesthesiologists have their own 15 standards and it's important for them to provide 16 appropriate care for the patient. I know the 17 American College of Surgeons has it written out, 18 so I wanted to see if they had it written out 19 just to validate or verify my opinions. Okay. 20 Q. So insofar as your belief as to the 21 standard of care for anesthesiologists and 22 pre-anesthetic workup, did you then find this 23 document marked as Exhibit 7 and utilized this to 24 verify your understanding of the standard of care 0091 1 or is this what you believe the standard of care 2 is? 3 A. It more or less confirmed my opinion. 4 Q. All right. 5 You understand obviously that this 6 advisory is not the standard of care per se; you 7 understand that? 8 A. I understand it's just what is listed 9 there. The latest position paper by the 10 anesthesiologists. 11 Q. And it even states on page one, 12 advisories are not intended as guideline 13 standards or absolute requirements; do you agree 14 with that? 15 A. Yes. 16 Q. So to the extent that the standard of 17 care for an anesthesiologist exists in this case, 18 you obviously are not a trained anesthesiologist 19 and have never practiced as an anesthesiologist, 20 do you believe it's better for you to defer to an 21 anesthesiology expert witness to express what the 22 standard of care may be? 23 A. To the extent that every case I've 24 done has had an anesthesiologist involved, so 0092 1 over 35 years I have a pretty good idea of what 2 the standard of care is. 3 So, to the extent that that is the 4 case, the answer is I would defer to them unless 5 they say something that doesn't make any sense. 6 Q. So you would defer to them but if 7 Doctor Berger, for instance, said something that 8 made no sense to you, you might quarrel with him? 9 A. I might question him. 10 Q. But at this point you don't see 11 anything that you question from Doctor Berger's 12 opinion letter? 13 A. From that letter, no. 14 Q. And you have not read his deposition 15 apparently; is that correct? 16 A. That's correct. 17 Q. All right. 18 MR. ECKENRODE: I think 19 that's all I have. Thank you. 20 MR. NEVILLE: You know what, 21 I forgot to ask him about something touching on 22 the last thing. Can I go ahead again now? 23 MR. WILLMAN: That's fine 24 with me. This is Phil Willman. 0093 1 MR. NEVILLE: Okay, Phil. 2 I'll just be a moment. 3 MR. WILLMAN: Sure. 4 * * * 5 E X A M I N A T I O N 6 BY MR. NEVILLE: 7 Q. Doctor, we marked as Group Exhibit 8 1 -- 9 A. Okay. 10 Q. -- it contains the statement that you 11 provided from the American College of Surgeons. 12 A. Okay. 13 Q. That's obviously an excerpt taken out 14 of a publication listing statements of the 15 College; would that be true? 16 A. I don't -- I mean, I've seen this 17 dozens of times and it's -- the bottom line -- 18 the bottom of it says reprinted from the bulletin 19 of the American College of Surgeons, but I've 20 seen it elsewhere besides the bulletin of the 21 American College of Surgeons. 22 Q. The reason I'm asking, it says that 23 the top it was approved by the College's Board of 24 Regents in February 1996. Is there one more 0094 1 current than that to your knowledge? 2 A. I haven't looked. 3 Q. Okay. 4 How did you get this if you didn't 5 look? 6 A. I haven't looked for one more recent 7 than -- I've had this -- I've used this in other 8 cases, so I probably pulled this out years ago 9 and I just keep it in the file and pull it out. 10 Q. Well, there are little marks, lines 11 by numbers four and five. 12 A. On mine it's one, four and five and 13 those are just little lines I made for this case 14 indicating that those are the things that I think 15 are appropriate here. 16 Q. Okay. 17 Number one, the surgeon is 18 responsible for confirming the diagnosis -- 19 A. Bingo. 20 Q. -- for which surgical care is 21 proposed. 22 A. Okay. 23 Q. Correct? 24 A. Uh-huh (yes). 0095 1 Q. In this instance surgical care was 2 proposed for gallbladder disease; correct? 3 A. Uh-huh (yes). 4 Q. And that was confirmed; correct? 5 Preoperatively, intraoperatively and 6 pathologically? 7 A. Uh-huh (yes). 8 Q. Correct? 9 A. Uh-huh (yes). 10 Q. All right. Yes? 11 A. Yeah, that's good. 12 Q. This responsibility should include 13 the surgeon's personal review of all pertinent 14 aspects of the patient's case? 15 A. All pertinent aspects of the 16 patient's case. 17 Q. And I understand your point, you're 18 saying that personal review did not, in your 19 opinion it was not sufficient to accept the 20 report from the patient that she had had a 21 cardiac workup done that was negative? 22 A. She didn't personally review that. 23 Q. She personally got that information 24 from the patient, didn't she? 0096 1 A. She didn't review it. She didn't 2 ever see it. 3 Q. I understand that part, Doctor. I'm 4 with you. 5 A. You're mincing words around and -- 6 Q. No, I'm trying to interpret something 7 that you're interpreting one way and I submit 8 perhaps as a different interpretation. 9 A. So my point here is -- 10 Q. And then the next sentence in number 11 one, Doctor, -- 12 A. May I finish? Okay, go ahead. 13 Q. -- appropriate consultation should be 14 requested if necessary. 15 A. Okay. 16 Q. Right? 17 A. So in finishing the discussion on 18 sentence number two -- 19 Q. Okay. 20 A. -- this responsibility should include 21 the surgeon's personal review of all personal -- 22 of all pertinent aspects of the patient's case. 23 That's what I'm saying. If she thought the 24 cardiac history was important and she relied on 0097 1 the patient, she asked the patient about it, then 2 she's obligated to have a personal review of that 3 data. 4 Q. Well, now it doesn't say personally 5 review the data. 6 A. All pertinent aspects. 7 Q. Okay. 8 A. Did she review -- 9 Q. She was told there was a negative 10 cardiac workup. 11 A. And she didn't review it, did she? 12 Q. Well, I mean, it's a matter of 13 whether you think that was reviewed. That's what 14 the patient informed her two days before. 15 A. Yeah, -- 16 Q. And she got released from the 17 emergency room? 18 A. And that's not what I would consider 19 reviewing. 20 Q. I understand. 21 A. I'm not supposed to be asking 22 questions, you are, go ahead. Sorry. 23 Q. And that number four and five are the 24 other two that you -- 0098 1 A. Yes. 2 Q. -- believe are pertinent? 3 A. Yes. 4 Q. And I think, Doctor, without 5 rehashing everything you and I have rehashed, 6 have we pretty much gone through what you've said 7 on -- 8 A. I believe so. 9 Q. Okay. 10 MR. NEVILLE: Thank you, sir. 11 THE WITNESS: You're welcome. 12 MR. WILLMAN: This is Phil 13 Willman. I represent Doctor Gerdt and Acute Care. 14 I'm going to take a little different tactic here. 15 Bill Walker, are you there? 16 MR. WALKER: Yes. 17 MR. WILLMAN: Bill, I'm going 18 to ask you if you intend to elicit at trial any 19 opinions from this witness about the standard of 20 care, whether Doctor Gerdt met the standard of 21 care? If you're not, and you stipulate that 22 you're not, then I won't have any questions. 23 MR. WALKER: Doctor Stein is 24 my ER expert. 0099 1 MR. WILLMAN: I understand. 2 Do you intend -- 3 MR. WALKER: That's who will 4 address the ER standard of care, Doctor Stein. 5 Doctor Heiskell is a general vascular surgeon and 6 I will not be asking him any questions as far as 7 the standard of care from an ER doctor. 8 MR. WILLMAN: Okay, good. 9 Do we have that stipulation? 10 MR. WALKER: Yeah, but make 11 sure we understand that I'm not going to ask him 12 any questions. I can't speak for any other 13 counsel in this case whatsoever from what I've 14 seen today who's going to ask him what. But I 15 will not -- I have not sponsored, I have not 16 disclosed Doctor Heiskell is testifying to any 17 standard of care of any ER physician. I don't 18 plan to because I've got Doctor Stein for that; 19 his deposition was taken. 20 MR. WILLMAN: I understand. 21 My next question is to the other counsel for 22 codefendants as to whether they intend to elicit 23 any opinions from this witness on standard of 24 care with respect to Doctor Gerdt. If they 0100 1 don't, then I don't have any questions. 2 MR. WALKER: They're looking 3 at each other. 4 MR. NEVILLE: Phil, this is 5 Jim Neville. That is not the type of thing I 6 would typically elicit. I don't know that I would 7 go so far as to make a stipulation to that 8 effect. I don't know whether this person meets 9 the foundational requirements anyway, if I would 10 try to. 11 But, Phil, I've never -- I've never 12 done that but I'm not going to stipulate right 13 now that there might not be some question that 14 might come up on cross examination that might 15 make something like that pertinent. 16 MR. WILLMAN: All right. 17 Well, then we'll go ahead. 18 * * * 19 E X A M I N A T I O N 20 BY MR. WILLMAN: 21 Q. Doctor, let me first then ask you 22 about your background and your experience. 23 MR. WALKER: Mr. Willman? 24 MR. WILLMAN: Yeah. 0101 1 MR. WALKER: I'll withdraw my 2 stipulation if they aren't going to agree, then, 3 because I don't want to be hand bound with 4 something they won't agree to. 5 MR. WILLMAN: I understand. 6 MR. WALKER: Go ahead and ask 7 your questions. 8 BY MR. WILLMAN: 9 Q. All right. 10 Doctor, I take it you don't currently 11 work in an emergency room setting, right? 12 A. Wrong. 13 Q. Wrong? 14 A. Yeah, I get called to the emergency 15 room every day to see people down there. I see 16 people with gallbladder pain in the emergency 17 room, abdominal pain in the emergency room, GI 18 bleeds in the emergency room; I work in the 19 emergency room frequently. 20 Q. When you work in the emergency room 21 currently, that is as a general surgery 22 consultant; correct? 23 A. Not necessarily. I may be an 24 admitting physician. 0102 1 Q. Do you currently see patients in an 2 acute care facility setting when they're first 3 presented to an emergency room? 4 A. Yeah. I mean, basically, if a 5 patient comes in with severe abdominal pain, the 6 ER nurse may ask them who their physician is, do 7 they want to see me or do they want to see the ER 8 doctor. If they want to see me, she'll call me. 9 Q. All right. 10 So in an emergency medicine setting 11 is a very common complaint, is it not, to see a 12 patient with chest pain? 13 A. I beg your pardon? 14 Q. Isn't it a common complaint to be in 15 an emergency room setting a patient complaining 16 with chest pain? 17 A. Yes, it is. 18 Q. And is it also common to see patients 19 in the emergency room setting complaining of 20 epigastric pain? 21 A. Yes, it is. 22 Q. And there's differential diagnoses 23 for both of those presenting complaints; correct? 24 A. That's correct. 0103 1 Q. And the differential diagnosis varies 2 widely, does it not? 3 A. That's correct. 4 Q. And there are a series of steps that 5 an emergency room physician takes to determine 6 what the differential diagnoses is for those 7 complaints, epigastric pain and chest pain, 8 right? 9 A. That's correct. 10 Q. All right. 11 And in this case she came in, 12 Mrs. Koonce came in complaining of both chest 13 pain and epigastric pain, right? 14 A. Correct. She complained of chest 15 pain. 16 Q. Well, did you review the nurse's 17 notes? 18 A. I reviewed the ER record, her first 19 listed complaint was chest pain and then there 20 was listed several other times; then the 21 epigastric pain came out. 22 Q. All right. 23 So the nursing assessment, the nurse 24 is describing chest pain versus epigastric pain, 0104 1 true? 2 A. Okay. 3 Q. Did you see that in the chart or not? 4 A. Well, I read the chart. So whatever 5 is there speaks for itself. 6 Q. All right. 7 That's what she said. All right? 8 A. Yeah, her initial listing was chest 9 pain, correct. 10 Q. Are you denying that the nursing 11 assessment described both chest pain and 12 epigastric pain? 13 A. No, I just simply said the initial 14 complaint when she came in was chest pain. 15 Q. All right. 16 And then later in terms of the 17 nursing assessment being described as chest pain 18 versus epigastric pain, or do you know? 19 A. Yeah, as I recall that's correct. 20 Q. All right. 21 So after the nurse assessed the 22 patient, Doctor Gerdt saw the patient, right? 23 A. Correct. 24 Q. All right. 0105 1 And part of his evaluation of her, he 2 wanted an EKG, right? 3 A. That's correct. 4 Q. And you've reviewed that EKG? 5 A. Yes, I have. 6 Q. Is it your testimony that that EKG 7 was abnormal? 8 A. Yes, it is. 9 Q. Did you review any other EKG's that 10 were done for this patient before the July 11, 11 2005 EKG? 12 A. No, I didn't. 13 Q. Do you know whether that EKG of July 14 11, 2005 was dissimilar from other EKG's that 15 were taken in the past? 16 A. It doesn't matter. That's an 17 abnormal EKG. When somebody comes in as you've 18 pointed out there's differential diagnoses. In 19 somebody with chest and epigastric pain you have 20 to rule out cardiac as the primary source because 21 that can be the most lethal. 22 So you rule that out first. Then you 23 move down the line. 24 Q. Can you -- 0106 1 A. I'm sorry. I hadn't finished. Can I 2 finish? 3 Q. You didn't answer my question. My 4 question is you are not aware of previous EKG's 5 for this patient, right? 6 A. That's correct. 7 Q. All right. 8 So you don't know whether that EKG 9 from July 11, 2005 was similar to EKG's that she 10 had in the past, do you? 11 A. Right. All I know is it's abnormal, 12 markedly abnormal. 13 Q. All right. 14 How was it markedly abnormal? 15 A. How was it markedly abnormal? Because 16 there's evidence of Q-wave in V3. The 17 interpretations says consider anterior infarct. 18 There's nonspecific lateral T-wave changes in V5 19 and V6. There's a possible left atrial 20 enlargement, possible right atrial enlargement 21 just to name a few. 22 Q. All right. 23 So do you know whether this is STMI 24 or a non-STMI change that is shown on EKG? 0107 1 A. It doesn't matter. 2 Q. I didn't ask you that, sir. 3 A. No, I don't know -- all I know is 4 that it's a cardiac problem. 5 Q. Okay. 6 Do you know the nature of the cardiac 7 problem? Do you know whether STMI versus non-STMI 8 or would you defer to a cardiologist on that? 9 A. I would defer to a cardiologist on 10 that. What was it the cardiologist said? I don't 11 recall. 12 Q. Have you reviewed the testimony of 13 the cardiologist in this case, the retained 14 cardiologist, Doctor Bower? 15 A. I have not. 16 Q. All right. 17 Now, you talked about the troponin 18 level. That is a biomarker; isn't that right? 19 A. That's correct. 20 Q. There are other biomarkers that were 21 measured for this patient, were there not? 22 A. As I recall there were. 23 Q. CKMB, also a form of CK, is it not or 24 do you know? 0108 1 A. I don't recall. Okay. What you're 2 saying could very well be true. 3 Q. Do you know what the peak sensitivity 4 is for CKMB? 5 A. I do not but I do know that it's 6 timing and I do know that if you see an elevated 7 toponin, it demands a cardiac assessment. 8 Q. I move to strike as nonresponsive. Do 9 you know whether the CKMB, what the peak 10 sensitivity is? 11 A. I do not. 12 Q. Do you know what her first CKMB 13 reading was from that laboratory testing at 14 Marshall Browning Hospital? 15 A. As I recall it was normal. 16 Q. All right. 17 And is that a reliable biomarker for 18 determining whether a patient is experiencing a 19 cardiac condition or would you defer to a 20 cardiologist? 21 A. Well, I don't have to defer to a 22 cardiologist. When you're assessing a patient, 23 you get several. You get CK-CKMB and troponin 24 because they -- 0109 1 Q. The question here is when they -- the 2 CKMB is within normal limits, what does that tell 3 you as to whether a patient is experiencing a 4 cardiac event or would you defer to a 5 cardiologist on that point? 6 A. A CKMB can be normal and the patient 7 can be having an acute cardiac event. 8 Q. All right. 9 What was the troponin level that you 10 believe was abnormal? 11 A. I think it was 0.36, wasn't it? 12 Q. Yeah. 13 A. Okay. That's abnormal. 14 Q. How abnormal was that with the lab 15 values at this particular hospital? 16 A. I think it was over five times the 17 upper limits of normal. 18 Q. That's your testimony? 19 A. As I recall, yes. 20 Q. All right. 21 And do you know what that signifies 22 from a cardiology viewpoint? 23 A. I think it very well signifies acute 24 cardiac injury. 0110 1 Q. Do you know whether this patient was 2 experiencing a coronary syndrome or an acute 3 myocardial infarction on July 11, 2005 or would 4 you defer to a cardiologist on making that 5 distinction? 6 A. I would defer to cardiology. 7 Q. Okay. 8 You would agree that the patient was 9 experiencing epigastric pain on July 11, 2005? 10 A. The patient was experiencing pain 11 that sometimes was recorded as chest pain and 12 sometimes epigastric pain. 13 Q. And the pain that she was expressing 14 was consistent with gallbladder disease, was it 15 not? 16 A. It was consistent with gallbladder 17 disease and coronary disease. 18 Q. All right. 19 So it was certainly appropriate to 20 consider the differential diagnosis that this 21 patient had on July 11, 2005 was experiencing a 22 gallbladder condition, right? 23 A. Correct. 24 Q. All right. 0111 1 Now, the role of an emergency room 2 physician is to sort out acute versus a 3 non-acute problem in that setting, right? 4 A. Well, I don't think that's the sum 5 total of the role of the physician, no. I think 6 the role of the emergency room physician is to 7 determine whether or not the patient needs 8 hospitalization and further workup or can be -- 9 have it done as an outpatient. 10 Q. Well, are you familiar with the 11 standards of the Emergency Medicine Association 12 with respect to classifying a patient in the 13 emergency medical setting? 14 A. No. 15 Q. All right. 16 So do you know what are the three 17 categories that emergency room physicians 18 consider when a patient comes into the emergency 19 medicine department? 20 A. No, I do not. 21 Q. All right. 22 Doctor Gerdt referred this patient to 23 her primary care provider, right? 24 A. Apparently. 0112 1 Q. Did you see that in the records? 2 A. I don't recall but apparently -- you 3 know, I would not disbelieve that. 4 Q. All right. 5 And, in fact, this patient did go to 6 see Doctor Gladstone Tucker, her family 7 physician? 8 A. Okay. 9 Q. Is that appropriate for Doctor Gerdt 10 to do, to refer this patient for further 11 evaluation and workup with her primary care 12 doctor? 13 A. I don't believe it is in this 14 setting, although I would defer to cardiology. I 15 think in this setting the patient needed to be 16 admitted and worked up. 17 Q. So you would defer to a cardiologist 18 as to whether it was appropriate for Doctor Gerdt 19 to refer Mrs. Koonce to her primary care 20 provider; is that what you're telling us? 21 A. Yes. 22 Q. And would you also defer to an 23 emergency medical physician as to whether it was 24 appropriate for Doctor Gerdt to refer this 0113 1 patient to her family physician, Doctor Tucker? 2 A. As long as they -- no, I think this 3 patient needed hospitalized and if the primary 4 care physician is capable of doing the workup in 5 the hospital, that's fine with me. But this 6 patient needed a cardiac evaluation at that time. 7 Q. But didn't you just tell us that you 8 would defer certainly to a cardiologist as to 9 whether it would be appropriate for Doctor Gerdt 10 to refer Mrs. Koonce to Doctor Tucker for further 11 workup and evaluation? 12 A. Yeah, I mean, I said that, but it can 13 be done in the hospital. You're talking about 14 sending them to -- as an outpatient and that's 15 not what I'm talking about. I think there are 16 some primary care physicians who are very good in 17 terms of cardiac workups and they can handle an 18 in-house cardiac evaluation. So it doesn't 19 matter to me if it was the primary care doctor 20 who took care of this patient in the hospital and 21 did the appropriate tests or not. 22 I think it was -- 23 Q. Do you know what Doctor Tucker's 24 knowledge was -- 0114 1 A. I'm not done, please. 2 Q. -- as to her history -- 3 A. I beg your pardon? 4 Q. Do you know what Doctor Tucker's 5 knowledge was as to this patient's medical 6 history? 7 A. I do not. 8 Q. Is that an important factor to 9 consider in determining whether a patient is 10 experiencing an acute myocardial infarction, the 11 history, the medical history of the patient? 12 A. Yeah, it's pertinent, just like the 13 fact that the sister died of an MI and the mother 14 died of an MI. The history is important. 15 Q. And an emergency room physician sees 16 the patient for the first time versus a family 17 physician who has been taking care of the patient 18 for years, who is in a better position to 19 understand and evaluate whether a patient is 20 experiencing a cardiac problem? 21 A. The emergency room physician who has 22 the abnormal EKG and the elevated toponin and the 23 patient with chest pain. 24 Q. Assuming that the family physician 0115 1 has either obtained that information, that is the 2 lab work, the EKG or has access to it; who's in a 3 better -- that has the family history or has the 4 medical history, who's in a better position? Is 5 it your testimony that the emergency room 6 physician is it a better position than the family 7 physician, Doctor Tucker? 8 A. My belief is the physician who is 9 there in the emergency room taking care of the 10 patient, evaluating the patient, looking at the 11 troponin, looking at the EKG, that physician in 12 the emergency room at that time is in the best 13 place to do it. 14 I think the ER physician is the best 15 qualified because he's a critical care physician 16 and he sees this all the time. If you have a 17 family physician or primary care physician who 18 specialized in cardiology, that's no problem, as 19 long as he is in the emergency room, saw the 20 data, hospitalized the patient and worked them 21 up. 22 Q. You can't tell us with any reasonable 23 medical certainty as to whether Mrs. Koonce was 24 experiencing an acute MI on July 11, 2005, can 0116 1 you? 2 A. She was experiencing an acute cardiac 3 event. 4 Q. All right. 5 And that was not my question. I 6 appreciate that but my question of you is you 7 cannot give an opinion that she was experiencing 8 an acute MI on July 11, 2005, right? 9 A. An acute MI, there are grades of 10 cardiac ischemic problems that can end up with 11 myocardial infarction and death of the cardiac 12 wall. So I cannot say that she had reached the 13 infarct end of that stage. She certainly had 14 evidence of a cardiac problem that was ischemic 15 in nature. 16 Q. You would defer to a cardiologist to 17 give an opinion as to whether she was 18 experiencing an acute MI on July 11, 2005, 19 wouldn't you? 20 A. Correct. 21 Q. Do you know whether her ST elevation 22 on that date was relatively normal or not? 23 A. It doesn't matter to me. 24 Q. I'm not asking you that. I appreciate 0117 1 that but I'd like an answer to my question. Do 2 you know whether her ST elevation on that date 3 was normal or not? 4 A. I don't recall that there was ST 5 elevation. So I'm questioning why you're asking 6 it that way. I thought there were just lateral 7 T-wave abnormalities. 8 Q. Okay. 9 So it's your testimony that she had 10 normal ST elevations on July 11, 2005? 11 A. Normal ST elevation is no ST 12 elevation. I'm not -- I'm not sure why you're 13 asking things this way. 14 Q. Okay. 15 A. Where did you see that she had ST 16 elevations? 17 Q. So you're saying she had no ST 18 elevations on July 11, 2005? 19 A. I didn't say that. I asked you -- you 20 asked me whether her ST elevation was normal or 21 not and I'm saying where did you say that she had 22 -- where does it say she had ST elevations? 23 Q. Doctor, I'm asking you the questions 24 here. Your job is to give answers. If you can't 0118 1 give an answer, that's fine with me. 2 Can you give me an answer as to 3 whether she had a normal ST elevation on July 11, 4 2005 or not? 5 A. I can't give an answer to a question 6 that doesn't make any sense. So to that question, 7 there is no answer. 8 Q. Okay. 9 So let me ask you some more questions 10 about your experience in the emergency room, 11 Doctor. 12 Are you employed by any hospital to 13 provide emergency room services? 14 A. I am not. 15 Q. How much time, say on a weekly basis 16 do you spend providing emergency medicine 17 services in a hospital setting? 18 A. It's as I mentioned earlier. I'm a 19 surgeon. I get called to the emergency room 20 frequently, several times a week. I may be down 21 there for 10 minutes or an hour. It's usually in 22 relation to a surgical related problem, such as 23 gallbladder disease or evaluation of a patient 24 with epigastric or chest pain or somebody who is 0119 1 vomiting blood or pooping blood. 2 So I'm in the emergency room 3 frequently. I'm not employed by the emergency 4 room. Your question to me was did I ever work in 5 the emergency room? I'm there all the time. 6 Q. Are you board certified in emergency 7 medicine? 8 A. No. 9 Q. Do you belong to any societies or 10 associations for emergency medicine physicians? 11 A. No, as I stated before I'm a general 12 and vascular surgeon. 13 Q. Are you familiar with any guidelines 14 that may spell out the obligations or 15 responsibilities of emergency medicine 16 physicians? 17 A. The guidelines, basically to consider 18 the differential diagnosis, evaluate the most 19 serious condition first and once that's ruled 20 out, go right down the line. I'm familiar with 21 that in terms of that's how it's been in medicine 22 for 30 years. 23 Q. Well, what guidelines are you 24 referring to? 0120 1 A. The guidelines of common sense. 2 Q. All right. 3 Is there some association or 4 organization that has published these guidelines 5 that you're referring to? 6 A. Basically if somebody comes in with a 7 problem and there could be three or four 8 different things going on. You want to rule out 9 the most serious and most life-threatening first. 10 That's basically what we're taught in medical 11 school and then -- and I don't know how to 12 explain it any other way. 13 Q. Did Mrs. Koonce have a 14 life-threatening condition when she presented to 15 the emergency room at the hospital on July 11, 16 2005? 17 A. Yes, she did. 18 Q. Was she in imminent -- was she in a 19 position of imminent death on July 11, 2005? 20 A. Define imminent. 21 Q. Pardon me? 22 A. Define imminent. 23 Q. How do you define imminent? 24 A. I'm asking you, you asked the 0121 1 question and I'm asking you what do you mean? 2 Clarify the question. 3 Q. Well, do the guidelines for emergency 4 medicine physicians define what is an imminent 5 threat of death or do you know? 6 A. I don't know. 7 Q. So, do you have an opinion as to 8 whether she was in an imminent threat of death on 9 July 11, 2005? 10 A. Define imminent for me. 11 Q. I can't do that for you. 12 A. Well, if you can't define it, then I 13 can't answer the question. 14 Q. All right. 15 Do you know what imminent means? 16 A. That's what I'm asking you. Imminent 17 means something that's going to happen soon. How 18 soon is soon in your book? 19 Q. As in your book, Doctor, as a surgeon 20 who's talking about emergency medicine; do you 21 know what imminent means in that context? 22 A. You tell me what your definition of 23 imminent is and then I can answer the question. 24 Q. I'm asking what an emergency medical 0122 1 physician considers to be an imminent threat of 2 death. Do you know what that definition is? If 3 you don't, we'll move on. 4 A. I think it would vary depending on 5 the physician. So the answer is I don't know. 6 Q. All right. 7 Right upper quadrant pain; is that 8 consistent with a diagnosis of gallbladder 9 disease? 10 A. Yes, it is. 11 Q. Was she complaining of right upper 12 quadrant pain when she presented to the emergency 13 room? 14 A. One observer got that history, when 15 she came in she complained of chest pain. 16 Q. Did Mrs. Koonce have a history of 17 gallbladder polyps? 18 A. There is no evidence that she had 19 gallbladder disease prior to this admission. 20 Q. Have you looked at her other previous 21 records to determine whether she had a history of 22 gallbladder polyps? 23 A. There were no gallbladder polyps on 24 the ultrasound done after this admission. I 0123 1 don't know about previous admissions. And there 2 were no gallbladder polyps found on the path 3 report. 4 Q. Going back to the -- never mind. 5 Did Mrs. Koonce tell Doctor Gerdt 6 that she had had gallbladder pain before she came 7 to the emergency room in previous admissions to 8 hospitals or do you know? 9 A. She said when she got there that she 10 thought it was her gallbladder. 11 MR. WILLMAN: I don't think I 12 have any other questions at this time. Thank you. 13 THE WITNESS: You're welcome. 14 MS. JONES: This is Kara 15 Jones, Doctor. I represent Marshall Browning 16 Hospital. 17 * * * 18 E X A M I N A T I O N 19 BY MS. JONES: 20 Q. Doctor, you were asked a question as 21 to working in an emergency room and you gave your 22 answer, my question is a little different. 23 Have you ever worked as an emergency 24 room physician? 0124 1 A. I have not. 2 MS. JONES: That's all 3 questions I have. 4 MS. PINE: Doctor, this is 5 Kathy Pine. I represent Memorial Hospital of 6 Carbondale, that's the hospital where Mrs. Koonce 7 had her gallbladder surgery. Okay? 8 THE WITNESS: Okay. 9 * * * 10 E X A M I N A T I O N 11 BY MS. PINE: 12 Q. It sounds to me, sir, that as you sit 13 here today you have not formed any opinions 14 regarding any deviations from the standard of 15 care of employees of Memorial Hospital of 16 Carbondale; is that correct, Doctor? 17 A. Who employs the nurse practitioner or 18 PA who ordered the EKG? 19 Q. Well, I'm not sure. 20 A. You don't know? 21 Q. I guess the question I have for you, 22 sir, is do you have any opinion, as you sit here 23 today, as to whether or not any employee of 24 Memorial Hospital of Carbondale deviated from the 0125 1 standard of care? 2 A. If the person who ordered the EKG is 3 employed by the hospital and there's no way -- 4 there's no process to make her responsible to a 5 physician, yeah, I think that I would say there's 6 a problem there. 7 Most of the time a PA works under a 8 physician and she's responsible for getting that 9 information to the physician. Clearly in this 10 instance she thought, and rightfully so, that the 11 patient needed an EKG. But apparently nobody was 12 told that the EKG was ordered or looked at the 13 EKG. There's a process issue. 14 Q. Let me ask you this, Doctor: You 15 haven't seen any testimony from the nurse 16 practitioner; correct? 17 A. Correct. 18 Q. All right. 19 Have you seen any testimony regarding 20 the process of what happened when an EKG was 21 ordered on Friday afternoon or evening by the 22 nurse practitioner and surgery is going to be 23 done the next morning, on Saturday morning, what 24 that process is in terms of how the EKG will get 0126 1 reported, put on the chart, etcetera? 2 A. I think -- 3 Q. Are you going to give testimony to 4 that effect? 5 A. I think you're asking me if I know 6 how that works and the answer is no. 7 Q. Okay. 8 Would it be important for you to know 9 that kind of information before offering any 10 criticisms of a nurse practitioner who ordered 11 the EKG? 12 A. I'm not judging the nurse 13 practitioner. All I'm saying is somebody ought 14 to check the process at the hospital and see if 15 it was followed. 16 Q. Okay. 17 So, Doctor, I go back to my question 18 I asked you before; as you sit here today do you 19 have enough information in order to render any 20 opinion that any employee at the hospital, 21 including the nurse practitioner, deviated from 22 the standards of care for their professions? 23 A. So you're saying the nurse 24 practitioner is employed by the hospital? 0127 1 Q. Can you just answer my question, sir? 2 Or do you want it read back by the court 3 reporter? 4 A. No. I'm sorry. I was under the 5 impression you didn't -- didn't know whether the 6 nurse practitioner was employed by the hospital 7 or not. In answer to your question, it was a long 8 question, I do not have enough information to say 9 that the hospital was wrong, but I still have 10 questions to say that something went wrong. 11 Q. Okay. 12 So here we are now in January of 2011 13 and what you're telling me is if I understand 14 correctly, as you sit here today in January of 15 2011, you do not -- you do not have enough 16 information in order to tell me that you have any 17 opinions that any employee of the hospital, 18 including the nurse practitioner that we've 19 discussed, deviated from the standard of care of 20 their profession; is that correct, sir? 21 A. That is correct in so much as that 22 something went wrong. I just don't know who was 23 responsible. 24 Q. Okay. 0128 1 And when you say something went 2 wrong, you just mean that somebody didn't read 3 the EKG and whose responsibility that was, that 4 you don't have enough information to know the 5 answers to those questions? 6 A. Basically that's correct. 7 Q. Okay. 8 Now, I know you did this letter. I 9 don't have the exhibit in front of me. Exhibit 1 10 is the letter where you wrote your opinions? 11 A. Okay. Yes, I did write a letter. 12 Q. Okay. 13 June 3, 2010, that's Exhibit 1; do 14 you have that in front of you? 15 A. I do not have it in front of me. 16 MS. PINE: Can someone please 17 hand the witness that exhibit? 18 THE WITNESS: Let me look 19 here for a minute. Okay. I now have it in front 20 of me. 21 BY MS. PINE: 22 Q. Okay. 23 I think you probably may know this 24 without looking at it but isn't it true that the 0129 1 only opinions you expressed back in June of 2010 2 after reviewing the medical records were opinions 3 related to the care rendered by Doctor Ryan; is 4 that correct? 5 A. That's correct. 6 Q. Okay. 7 And nobody told you that your 8 opinions should be circumspect in any way or 9 limited or that you weren't supposed to, you 10 know, give opinions about anything else, did 11 they? 12 A. No, I just assume I'm supposed to 13 answer the questions you all ask me. 14 Q. Okay. 15 And you assumed when you were asked 16 to give your opinions and produce a letter to the 17 effect about what your opinions were, which you 18 did on June 3, 2010, that you were supposed to 19 give in summary fashion all the opinions that you 20 had formed up to that point? 21 A. In summary fashion, what? 22 Q. In summary fashion that you were 23 supposed to give all the opinions that you had 24 formed up to that point? 0130 1 A. I was asked to -- I don't remember 2 exactly what I was asked to do at that point. The 3 letter specifically involves the care of Doctor 4 Ryan and as I recall that's all I was asked at 5 that point. I don't have that in writing. I don't 6 recall for sure but I believe -- I'm pretty 7 certain that I would have given opinions about 8 the other two physicians had I been asked. 9 Q. Well, I mean, Doctor Heiskell, didn't 10 I just ask a few minutes ago whether anybody 11 asked you to be circumspect in your opinions or 12 limit your opinions in any regard and you told me 13 no that nobody told you to do that; correct? 14 A. Correct, that's what you asked me. 15 Q. Okay. 16 So when you wrote this letter on June 17 3, 2010 and you say in here I read the medical 18 record and I have an opinion regarding Doctor 19 Marsha Ryan, at least that means on June 3, 2010 20 that was the only person in this case against 21 whom you had formed opinions as of that time; is 22 that right, sir? 23 A. Somehow or another apparently I 24 misled you. I was asked to write the letter 0131 1 concerning the care by Doctor Marsha Ryan. 2 That's what I -- 3 Q. And now you're telling me -- 4 A. Can I finish? May I finish? 5 Q. Are you telling me, Doctor, that 6 you're changing what your testimony was that you 7 were directed to limit your opinions only to 8 Doctor Ryan? 9 A. I was asked to write a letter about 10 Doctor Ryan. That didn't mean that I couldn't -- 11 wouldn't see what other people did. 12 Q. All right. 13 So you're telling me that indeed you 14 were asked to limit your opinions to Doctor Ryan; 15 that's what your testimony is right now, is that 16 right? Is that right, Doctor Heiskell? 17 A. I'm looking back at some notes here 18 to try to answer your question. The 19 correspondence to me states the report is to 20 contain conclusions and opinions as to the 21 negligence of Doctor Ryan or any hospital from 22 Doctor Heiskell's review of the records. 23 Q. All right. 24 What are you referring to 0132 1 specifically? 2 A. A letter from Bill Walker to me. 3 MR. WALKER: It's in group 4 Exhibit 6. 5 MS. PINE: Will somebody pull 6 that out and mark that as a separate exhibit, 7 please? 8 * * * 9 (Whereupon, Deposition Exhibit No. 9 10 marked for purposes of identification.) 11 * * * 12 MR. WALKER: It has been 13 marked. 14 MS. PINE: And how has that 15 exhibit been marked, Doctor? What number? 16 THE WITNESS: 9. Exhibit 9. 17 MS. PINE: All right. Thank 18 you. 19 BY MS. PINE: 20 Q. Referring to Exhibit 9, you were 21 asked to give opinions relating to Doctor Ryan or 22 the hospital; is that correct? 23 A. Yeah, I think there's a typo here but 24 that's what it says. I was specifically looking 0133 1 -- asked to look at this for the actions of the 2 surgeon. 3 Q. The surgeon and the hospital; is that 4 right? That's what the letter says; correct? 5 A. The letter says that, yes. It says 6 any hospital. So I assume that that's a typo. 7 Q. Okay. All right. 8 You knew -- you understood, right, 9 when you read that letter that you were supposed 10 to look at the records and give opinions 11 regarding Doctor Ryan and the hospitals, right? 12 A. Correct. 13 Q. Okay. 14 And the letter that you did on June 3 15 was in response to that; correct? 16 A. The letter on June 3rd deals with 17 Doctor Ryan. 18 Q. And you didn't do any letters, 19 separate letters about the hospitals, right? 20 A. I did not. 21 Q. Okay. 22 So your letter on June 3, 2010 is in 23 response to the letter that's marked as Exhibit 24 9; correct? 0134 1 A. It's in response to my correspondence 2 with the attorney who asked for a letter 3 concerning my evaluation of Doctor Ryan's care. 4 Q. And not just Doctor Ryan's care, 5 Doctor Heiskell. To be clear, Doctor Ryan's care 6 and the hospitals; isn't that correct, sir? 7 A. You're relying on the letter. I'm 8 relying on personal communication with the 9 attorney who just asked me to comment on Doctor 10 Ryan's care. He did not say on everybody else's 11 care, also/or and he did not say don't comment on 12 anybody else. 13 He wanted a letter concerning my 14 evaluation of Doctor Ryan's care of the patient, 15 Ruby Koonce, in this case. 16 Q. What's the date of the letter marked 17 Exhibit 9, Doctor? 18 A. I believe it is June 1. June 1. 19 Q. June 1 of 2010? 20 A. Yeah, and you know that's kind 21 of interesting because if he wrote it on June 22 1 of 2010 and I responded on June 3, usually 23 the mail doesn't get there that fast. So I don't 24 know -- I know that my letter was after talking 0135 1 to Mr. Walker. 2 Q. When did you talk to him -- 3 A. I don't remember. 4 Q. Pardon? 5 A. I don't remember. 6 Q. Do you keep any records of the dates 7 you talk to the attorneys? 8 A. I don't keep any records of phone 9 conversations, no. 10 Q. Do you keep any records of the dates 11 that you talk to attorneys, such as billing 12 records? 13 A. I don't bill for phone calls. 14 Q. So the answer is, no, you do not keep 15 any records of the dates that you talk to 16 attorneys; is that correct? 17 A. That's correct with certain 18 exceptions. In other words, if somebody sends me 19 a case to review and we set up a time for me to 20 call back and give my review by phone, then often 21 I'll make a record of my opinion, which is 22 whether or not there was negligence or not, and 23 there will be a record of that phone call. 24 But not just in a usual, hey, have 0136 1 you written a letter yet phone call type thing. 2 Q. All right. 3 Regardless, even back on June 3, 4 2010, you hadn't informed any opinions about any 5 of the employees of Memorial Hospital of 6 Carbondale even at that point, had you? 7 A. On the very first time I read this 8 chart and I formed an opinion about the ER doctor 9 and I formed an opinion about the 10 anesthesiologist. So what you're saying is 11 incorrect. 12 Q. Well -- 13 MR. WILLMAN: I'll object to 14 the question and the answer as being 15 non-responsive, move to strike. 16 BY MS. PINE: 17 Q. I'm talking about the employees of 18 Memorial Hospital of Carbondale, Doctor. So my 19 question was limited to that. Maybe you didn't 20 understand that. 21 At the time that you did your letter 22 back on June 3, 2010, you had not formed any 23 opinions relating to the employees of Memorial 24 Hospital of Carbondale, had you? 0137 1 A. That is correct and I still haven't 2 formed any opinions about the employees of 3 Carbondale. I just asked the question as to who 4 employs the PA because whoever employs -- 5 Q. Doctor -- 6 A. Can I finish? Whoever employs -- 7 Q. Well, I think you're just being 8 rather repetitious. I'm not sure. There's not a 9 question out there about that. I think we've 10 already covered that, haven't we? 11 You don't have any opinions regarding 12 the PA either or the nurse practitioner, whatever 13 category that person was at Memorial Hospital of 14 Carbondale because you don't have enough 15 information to even address whether or not that 16 person did or did not deviate from the standard 17 of care; correct? 18 A. It's just exactly as I've stated 19 before. I questioned who was in charge of that 20 person because I think things didn't go well. 21 So I didn't say it was the PA's fault 22 or the hospital's fault or anesthesia's fault. I 23 just raised the question that things didn't go 24 right. 0138 1 Q. Okay. 2 And when you say things didn't go 3 right, tell me specifically what you mean. 4 A. Well, I mean it's evident this girl 5 felt an EKG needed to be done. So she thought 6 there was some cardiac issues but she didn't tell 7 anybody because nobody looked at the EKG and as a 8 result of that, the woman died. That's obvious. 9 Q. Okay. 10 EKG's can get done before surgery 11 even though somebody doesn't think that there is 12 an acute coronary event going on; correct? They 13 can get ordered for other reasons, right? 14 A. Correct. 15 Q. Okay. All right. 16 So my question, do you have an 17 opinion or do you know in fact whether or not an 18 EKG was done? 19 A. It was done. It was on the chart. 20 The surgical checklist showed it was on the chart 21 before the operation. 22 Q. Okay. 23 So you don't have any criticisms of 24 the nurse practitioner or anybody at the hospital 0139 1 in terms of that the test was ordered or putting 2 the test in the chart or putting it on the 3 surgical checklist, that it was done and 4 available; correct? 5 A. That's correct. I've stated now four 6 times that I don't know who was at fault but 7 there's a process issue in that nobody saw that 8 EKG and stopped the surgery, whether or not the 9 nurse practitioner or PA is employed by the 10 hospital or the anesthesia group or whatever, I 11 think you have to look at your credentials, stop 12 and see who is responsible for that person. 13 Okay. There's where you'll find if anybody was 14 negligent. 15 Q. Okay. 16 But, Doctor, regardless of who is 17 responsible for that person, I'm talking about 18 that person's conduct, the nurse practitioner, 19 you told me, did you not, sir, that you don't 20 have enough information as you sit here today 21 giving this deposition, after reviewing all these 22 medical records, whether or not that nurse 23 practitioner deviated from the standard of care 24 for nurse practitioners, do you, sir? 0140 1 A. That's correct. 2 Q. Okay. 3 And you've been doing expert work 4 since the early '90s you told us, right? 5 A. I've been doing what? 6 Q. Expert witness work since the early 7 1990s? 8 A. Correct. 9 Q. Okay. 10 You know when we attorneys come here 11 for our deposition and they're representing their 12 clients, they're expecting you to tell them as of 13 today, as of this point, whether you have any 14 opinions that their client deviated from the 15 standard of care. You know that's why we're 16 here, right? 17 A. I didn't know you were going to be 18 here and you're not here actually. 19 Q. Well, if you say I'm not there, good 20 for you, but you know that -- 21 A. How far away are you? 22 Q. You know that the reason I'm here 23 taking your deposition for Memorial Hospital of 24 Carbondale, I want to know if you have an opinion 0141 1 as of today whether or not you've got any 2 opinions that my employees deviated from the 3 standard of care; you know that, right? 4 A. I did not have any idea you would be 5 here. You left no communication with me that 6 you'd be here. You didn't ask me if I had an 7 opinion. No, I didn't know you'd be here. 8 Q. You know that Memorial Hospital of 9 Carbondale is a defendant in this case, right? 10 A. I did not know that. 11 Q. You didn't even know that the 12 hospital is a defendant in the case? 13 A. I knew there are multiple defendants. 14 I don't -- I didn't -- I knew the 15 anesthesiologist, the ER doctor and Doctor Ryan 16 were the defendants. You know, all these things, 17 they just start out and they leave other ones 18 out. 19 So I didn't know that you were a 20 defendant, nor you didn't tell me that you were 21 going to be here. You didn't send me anything 22 saying you're going to ask me questions. I'm not 23 a mind reader. 24 Q. Let me back up. Of course, let me put 0142 1 it in different way. You know that when you're an 2 expert and your deposition is being taken that 3 it's very common for the parties' attorneys to be 4 present for your deposition; you know that, 5 right, Doctor? 6 A. Yeah. 7 Q. Okay. 8 But what I hear you saying is until 9 today or until I just told you, you had no idea 10 the hospital was even a defendant in the case; is 11 that right? 12 A. I may have seen that earlier and it 13 didn't come to mind today until you started 14 asking questions. I think I raised earlier, you 15 know, who's in charge of this PA? Who ordered the 16 EKG? Because generally speaking, if it's an 17 independent nurse practitioner, they're liable 18 themselves. If it's a PA, then they're under 19 somebody. PA stands for physician's assistant. 20 So who are they under? 21 Q. We've been through that, Doctor. But 22 the long and short of it is regardless of whether 23 it's a PA or an NP or who they're employed by, 24 you don't have any opinion as you sit here today 0143 1 that that person deviated from the standard of 2 their profession; correct? 3 A. I have no opinion that they deviated 4 from the standard, nor do I have an opinion that 5 they did not deviate from the standard. 6 Q. Right. Right. I understand that. 7 Okay. 8 A. Great. 9 Q. While I understand that you didn't 10 know the hospital was a defendant in this case, 11 you had known since the first time you read the 12 medical records that there is a nurse 13 practitioner or PA, I understand you don't know 14 which the person is, that was in some way 15 involved. You've known that all along, right? 16 A. That's correct. 17 Q. Okay. 18 But as of January, today, as of 19 January 2011, you've not formed any opinions 20 about that person's care, whether or not -- 21 whether or not it met the standards of their 22 profession? 23 A. Nobody asked me. 24 Q. Okay. 0144 1 And you don't have any evidence of 2 that. You told me that, right? 3 A. I have evidence in that we have a 4 dead patient. Okay. 5 Q. No, no, no, no. We're not asking -- 6 it's very important. You have no opinions, as 7 you sit here today, that this nurse practitioner 8 or PA whom you know has been involved in this 9 case pursuant to your review of the medical 10 records, from the beginning you have no opinion 11 as you sit here today that that person deviated 12 from the standard of their profession, do you, 13 Doctor? 14 A. That's correct. 15 As I've said before, I have no 16 opinion that they did or that they didn't. I just 17 had a question. 18 Q. Okay. 19 MS. PINE: That's all I have. 20 MR. WALKER: Second round for 21 anybody? 22 * * * 23 24 0145 1 E X A M I N A T I O N 2 BY MR. NEVILLE: 3 Q. Doctor, do you know how much time you 4 have invested in this case up to the start of 5 this deposition? 6 A. No. I mean, there were a huge number 7 of records. I mean, some going back to the early 8 part of 2004 something all the way through her 9 death. So there's a bunch of hours. 10 Q. Do you have -- have you billed 11 Mr. Walker yet? 12 A. I think I've billed him all but for 13 the review I did this weekend and last night. 14 Q. Okay. 15 How much did you review this weekend? 16 A. Four hours. 17 Q. And then last night? 18 A. Within the last week four hours. 19 Q. Okay. 20 And then you have already billed 21 Mr. Walker. 22 MR. NEVILLE: So, presumably, 23 Bill, you could give us whatever bills he sent 24 you and payments? 0146 1 MR. WALKER: Well, what I can 2 do is provide you is I paid him the initial fee 3 to review. Then I paid him an amount on account 4 and then he takes from that and when it gets 5 down, I replace the account. So I can -- I got 6 something in the last six or seven days. It will 7 show a credit, but it will also show all the work 8 he's done, not this week, but prior to this week 9 in getting ready for the deposition. 10 MR. NEVILLE: So up until the 11 four hours in the last week and then today for 12 the depo, which is about three hours. 13 MR. WALKER: Three and a 14 half. 15 MR. NEVILLE: Three and a 16 half, sorry. 17 MR. WALKER: I had to start 18 at 4:00. 19 MR. NEVILLE: Okay, you're 20 right. I'm still on our time. You can give us 21 the time up to a week ago? 22 MR. WALKER: I can give you a 23 check from the initial review amount and I can 24 give you the statement that's got -- it shows a 0147 1 credit on there. 2 MR. NEVILLE: Okay. And that 3 would be all -- 4 MR. WALKER: It's detailed, 5 yeah. It's detailed. 6 MR. NEVILLE: If you would 7 provide that, that's great. 8 Doctor, I don't have any other 9 questions. 10 MR. WALKER: Anyone else? 11 MR. ECKENRODE: I have 12 nothing else. 13 MR. WILLMAN: Nothing. 14 MR. WALKER: Kara? 15 MS. JONES: No. 16 MS. PINE: Nothing else. 17 MR. WALKER: Thank you. The 18 Doctor will read. 19 * * * 20 (Whereupon, this deposition 21 was concluded at 7:30 p.m.) 22 * * * 23 (Whereupon, signature was not 24 waived by the witness.) 0148 1 * * * 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 0149 1 THE STATE OF : WEST VIRGINIA : 2 : SS: C E R T I F I C A T E COUNTY OF OHIO : 3 I, DEBRA A. VOLK, Court Reporter and 4 Notary Public within and for the State of West Virginia duly commissioned and qualified, do 5 hereby certify that the within-named witness, C. ANDREW HEISKELL, M.D., was by me first duly 6 sworn to testify to the truth, the whole truth and nothing but the truth in the cause aforesaid; 7 and the testimony then given by the witness was by me reduced to stenotype in the presence of the 8 witness; afterwards reduced to Computer Aided Transcription under my direction and control; 9 that the foregoing is a true and correct transcription of the testimony given by said 10 witness. 11 I do further certify that this 12 testimony was taken at the time and place in the foregoing caption specified, and was completed 13 without adjournment. 14 I do further certify that I am not a 15 relative, counsel or attorney of either party, or otherwise interested in the event of this action. 16 17 IN WITNESS THEREOF, I have hereunto set my hand and affixed my seal of office at 18 Wheeling, West Virginia, on the _______ day of _______________________, 2011. 19 20 _____________________________ 21 DEBRA A. VOLK, Court Reporter Notary Public within and for 22 the State of West Virginia 23 My Commission Expires: 24 July 25, 2015