Nursing Home Examination 1 - Direct and Cross of Nursing PhD and Expert Witness - Part 2

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EXAMINATION

BY THE COURT:

Q Ma'am, let me just ask you this. Generally would there be a difference between the way things are done in a hospital and a nursing home?
A No. If you're asking me about the practice of nursing, no.
Q Okay. Is it true then that the standard of care of what a nurse is required to do when she's professionally dealing with and treating a patient would be the same in a hospital or at a nursing home?
A Correct.
Q You have said regarding protocol, protocols for charting and those requirements that the technique would be the same in both a hospital or a nursing home but the frequency might be different as far as the charting of vital signs. How do you know this?
A Because I was on the board of the Westshire Nursing Home and Retirement Center for ten years, and they were fighting for their own certification or acceptance for becoming Medicare certified as well as State certified.
THE COURT: Thank you. Anything further?
MS. ODARCZENKO: Nothing.
THE COURT: All right. My finding at this time is that the witness is qualified to give an expert opinion in the area of nursing generally and specifically in the area of nursing issues relating to older adults, and her knowledge would include the knowledge of the standard of care which would apply for a nurse practicing either in a hospital or in a nursing home.
She has described already her professional work that she does now. She's said subsequently in answer to the questions that she knows the difference in protocols relating specifically to charting, and the technique of the professional work of the nurse is the same or the standard of care is the same. The frequency may differ. And while she may not have had recent actual experience working in a nursing home, she has said that she is current from reading journals, going to seminars, talking to other nurses and she serves on councils of concern.
So I think it would appear that she is certainly adequately knowledgeable in this area, and accordingly I think there is a sufficient foundation. So the objection will be overruled.
MS. ODARCZENKO: As to the form, Judge?
THE COURT: As to the form, you mean the form of the question?
MS. ODARCZENKO: Yes, Judge.
THE COURT: Yes, that will be sustained.
MR. WOHLBERG: Judge, every case - I mean, I've never seen it done any other way in my training as an attorney as far as asking for an opinion. You lay the foundation of is it your opinion to a reasonable degree of medical or in this case nursing certainty that - you have to call the attention to the area we're talking about and ask them.
THE COURT: Well, what have you asked her so far that she has done?
MR. WOHLBERG: What do you mean, done as - the objection was to form of the question.
THE COURT: Um-hmm.
MR. WOHLBERG: What I'm asking - there's three - she's giving a number of opinions, and I'm going to go through them one by one. And I'm going to ask her whether there was a deviation from, the first one, from the standard of care as I did with the doctor in failing to protect the plaintiff Anna Prairie from cognitively impaired patients. I think that's a perfect - that is the way it should be done. I don't see where the objection to form is. I mean, I'm not sure what she's saying.
THE COURT: You said leading.
MS. ODARCZENKO: Yes, it is leading, Judge. It's feeding her her opinion and asking her if she agrees with it. You can ask - Judge, again, we're put in the same position of educating Mr. Wohlberg about how to put on his case. One can ask the question, and I have seen it done many times appropriately, do you have an opinion to a reasonable degree of nursing certainty on the issue of X. That's not leading.
THE COURT: All right. Rephrase your question.
MR. WOHLBERG: Okay, Judge.
THE COURT: Can you call the jury back in, please.
MR. KARRIS: Judge, can we do it in five minutes? My client needed to go to the washroom.
THE COURT: Okay.
MR. HARRIS: Okay. Thanks, Judge.
THE COURT: While we're waiting then, let me try to get an idea relating to tomorrow. Now, how long do you anticipate the testimony of Dr. Buschmann may be?
MR. WOHLBERG: My estimate, it won't be very long, Judge. I'm going to get her opinions as quickly as I can, and I'd like to finish today.
THE COURT: I don't know if that's going to be possible or not. We're talking it's already 4:30 now. How long will your questioning be?
MR. WOHLBERG: Fifteen minutes maybe at the most.
THE COURT: What about the cross-examination, do you have any idea? Will you be done within maybe an hour? expeditiously, yes.
MR. HARRIS: I don't have any obviously.
THE COURT: As long as we don't go past 5:30 obviously.
MR. HARRIS: Are you guys going to agree to take Hulesch out of order tomorrow morning?
MS. ODARCZENKO: Well, it depends. I mean, my understanding is they may have other witnesses.
MR. WOHLBERG: Yeah, I have Dr. Marwaha.
THE COURT: Apparently there is a problem with one of witnesses on the defense side.
MR. WOHLBERG: Yeah, I think we did talk, right.
MS. ODARCZENKO: I don't intend to take more than an hour with Dr. Hulesch, if that. I mean, I could probably do his direct in 40 minutes, and I don't anticipate that the cross would be that long either. So I would prefer to put the case in in order, if that is at all possible, meaning - I mean, Dr. Marwaha, how long would the adverse take?
MR. WOHLBERG: Not long, 15 minutes.
MS. ODARCZENKO: I would prefer for plaintiff to rest if possible before putting on my witness.
THE COURT: Well, at the beginning I thought you said you wanted to take the witness out of order because of the emergency with the personal schedule that your witness had.
MS. ODARCZENKO: Correct. If we carry over with this witness, Judge, I will have to ask that courtesy, if we carry over to tomorrow with this witness, Dr. Buschmann.
THE COURT: If we finish today, then we want to continue in the ordinary course and defer Dr. Hulesch until later in the day, right?
MS. ODARCZENKO: Well, if Dr. Marwaha will only take 20 minutes, we could put Dr. Hulesch on right after that, and he would still be able to make his 2 o'clock flight.
THE COURT: That's fine with me.
MR. WOHLBERG: I told her that's
THE COURT: Let's plan on doing that then. As far as the rest of the case, how long would you anticipate then? Would you still be able to finish your case tomorrow?
MS. ODARCZENKO: I may have one or two witnesses that won't take very long that I will need to carry over until Monday. I anticipated at the outset needing a day and a half to put all of my witnesses on.
THE COURT: All right.
MR. HARRIS: We'll talk about it. We'll work something out.
MS. ODARCZENKO: Okay.
THE COURT: Do you want to call the jury back in.
MR. WOHLBERG: I'm sorry? Pardon me? THE COURT: We're going to call the jury back now.
(The following proceedings were had in open court in the presence and hearing of the jury:)
THE COURT: Ladies and Gentlemen, it is a somewhat long day. I understand that. I know it's tedious also to be sitting there all day long and listening. We're going to try to adhere to our schedule. I told you originally I thought the trial would be about five days, and probably that is about what it's going to be at this point. We will not be able to finish tomorrow. Hopefully we'll be finished Monday or Tuesday afternoon, probably somewhere around Tuesday afternoon I think.
We'd like to stop by about 5 every day. I think today we may have to go a little bit past 5 but not too long. So we will proceed at this time then, and hopefully we'll be done not too long after 5 o'clock. Counsel, you may proceed.
BY MR. WOHLBERG:
Q Dr. Buschmann, what records did you review in rendering your opinions?
A I reviewed the Sunny Valley - I'm sorry, Snow Valley Nursing Home chart. 1 reviewed the Good Samaritan Hospital chart. I reviewed the Edwardsville Hospital chart. I reviewed Robin Prairie's deposition and a few of the pages from nurses who gave an explanation of what had happened, since there was no incident report.
Q What is your understanding of the incident of 6/5/94, your understanding of the facts of that incident of June 5th?
A My understanding is that Anna Prairie was found on the floor in her room out of her bed and -
Q Oh, I'm sorry.
A - and that she was subsequently taken to Good Samaritan's ER.
Q And did she give a history to the ER?
A She apparently told someone - I would assume it was at the ER from what I've read - that she was pulled from the bed by another patient.
Q Do you have an opinion to a reasonable degree of - I'm sorry. Before I are there any other facts you also reviewed the subsequent week of the time she spent at Snow valley after her return from Good Samaritan Hospital?
A Yes, I did.
Q And you reviewed the hospital record where she died or where she was pronounced dead?
A. Yes, I did.
Q Do you have an opinion to a reasonable degree of nursing certainty as to the issue of the failure to protect issue of Anna Prairie?
A Yes, I do.
MS. ODARCZENKO: Can we just note my continuing objection on foundation.
THE COURT: The record will show the objection. It's overruled. You may proceed.
BY MR. WOHLBERG:
Q What is that opinion or opinions?
A My opinion is that they failed to protect her. That is based on my review of the records. Her MDS, which is minimum data status record, as well as the RAPs, which are the resident assessment protocols., all indicated that she was at risk for fall. Nowhere in the nursing care plan was there any plan to extend protection for her. She had also fallen on the 2nd, I believe, of June. And we know that a patient, who has once fallen increases their risk of falling again to a great degree of certainty.
So while she was assessed and had demonstrated her risk for fall, they did not, to my knowledge from reading the record, have a lower bed. She did not have a side rail. She should have had a half side rail at the top of the bed, and she should have been under closer supervision in terms of who was going in and out of her room. I felt that she was not protected by laying - if this truly did happen, the alleged wandering of the demented patient in her room.
Q Can you see any instance where the nursing home would allow demented patients to wander at will around the nursing home facility?
A Some of the poorer ones do, but I do believe that
Q Is that below
A That is below the standard. The standard of care is to keep demented patients contained, not restrained, contained. And that simply means that they would be prevented - if they're wanderers, they're given a place that they can wander safely, that they can either be supervised - I mean, you do not have staff usually to walk with them constantly, so you put them in an area where they have a continuous circular pathway that they can walk. And it's usually an enclosed, locked area.
Q Now, describe for the jury, you mentioned R-A-P, RAP. What is that?
A A RAP is a resident assessment protocol. And based on the MDS, which is the minimum data set, which was put into effect I believe in 1991 by the federal government was to assure that every single patient would have a patient care plan in place 24 hours after admission. When there are flags on that plan stating that a patient is vulnerable or at risk for some part of the plan, then they need to have a resident assessment protocol, which means they look into the situation that the patient is at risk for and do further evaluation. And then from that they will design their nursing care plan to either avoid, eliminate or in some cases they can only diminish the risk.
Q Well, specifically Anna Prairie's case, what was her plan or RAP?
A The RAP there said she was at risk for falling. She had fallen before, and it was - it's kind of like a checklist type of thing. And so - and they will sometimes put in numbers to rate, and she was a risk for falling.
Q Now, with regards to the - do you have an opinion to a reasonable degree of nursing certainty as to the issue of monitoring Anna Prairie after her return from the hospital?
A Yes, I do.
Q And what is that opinion?
A My opinion is that they did not monitor her closely enough when she came back to Snow Valley Nursing Home.Based on the record that I had, a transfer form came with her. The nurses at Snow Valley Nursing Home knew that while she was at Good Samaritan Hospital, she had had atrial fibrillation. She had been put on Digoxin. She had gone toxic on the drug. It had been stopped, and she came back with an order that read that she should have Digoxin started a week from the day she came back. She was readmitted on the 9th, and they were to restart the Digoxin on the 13th of June of 1994. My feeling is that -
MS. ODARCZENKO: Objection, Judge. Can we be heard?
THE WITNESS: I'm sorry. Am I -
MS. ODARCZENKO: Just step up?
THE COURT: Why don't you ask another question at this point.
BY MR. WOHLBERG:
Q Sure. What is your opinion with regards to monitoring?
A My opinion is that it was insufficient.
Q And that's to a reasonable nursing certainty?
A Yes.
Q And it was insufficient in which way?
A They did not monitor her closely enough.
Q Did their monitoring fall below the standard of nursing care in Illinois?
A Yes, it did.
Q In what way?
A They did not take her blood pressure frequently enough.
Q What else?
A They were not monitoring her for the drugs, you know, what was going on with her vitals in general. They -
Q How often should her vitals have been monitored?
A In my opinion her vitals should have been monitored at a minimum of once a shift. And when I looked at the record when she came back, they did it once a day. And on the 9th her blood pressure I believe was 140 over 90, on the 10th it was 110 over 56 and on the 11th it was 130 over 70, and there was none recorded for the 12th.
Now, knowing her history and her diagnosis of congestive heart failure and what had gone on at Good Samaritan, a well-qualified nurse would have known that she was at risk in her cardiovascular system. And anybody, any nurse, any qualified, well-qualified nurse who had taken a blood pressure of 140 over 90 and the next day got a blood pressure of 110 over 56 would have immediately done - reported it, number one, to the doctor and, number two, would have put her on a more frequent blood pressure monitoring regimen.
Q Were any vital signs taken on the day she. died?
A I could find none recorded.
Q Did that failure fall below the standard of nursing care in Illinois?
A Yes, it does.
MR. WOHLBERG: Judge, I don't have any further questions of this witness. Thank you very much, Dr. Buschmann.
THE COURT: Ms. ODARCZENKO.
MS. ODARCZENKO: Yes. Thank you, Judge.

CROSS-EXAMINATION

BY MS. ODARCZENKO:

Q Dr. Buschmann. what's the first date that you were contacted in this case?
A June 15, 1999.
Q Do you have your deposition transcript with you, ma'am?
A Yes, I do.
MR. WOHLBERG: There's no point - Judge, there's no questions pending for impeachment.
THE COURT: Not yet. We'11 see what comes. You may proceed.
BY MS. ODARCZENKG:
Q Ma'am, do you have any knowledge of when your opinions were disclosed to the court in this case?
A I believe it was -
MR. WOHLBERG: Well, I'll object on relevance, Judge.
THE COURT: What opinions are you talking about?
MS. ODARCZENKO: The 213s, Judge. They were an exhibit to her deposition.
THE COURT: I'll sustain the objection.
BY MS. ODARCZENKO:
Q Ma'am, at your deposition were you shown a document that contained a summary of your opinions entitled Plaintiff's Rule 213 Answers to Interrogatories? Do you recall that?
A You are confusing me with Rules 213, et cetera, but I remember being shown my opinion.
Q. And at that time it was marked Deposition Exhibit No. 3. Do you recall that?
A No, I don't. Well, it could have been marked an exhibit, but I don't remember what number.
Q Ma'am, you don't have any knowledge about the date on which your opinions were disclosed to the court, is that correct?
A I have no knowledge?
MR. WOHLBERG: I object on the same basis. It's irrelevant.
THE COURT: I'm sorry. What is the question?
MS. ODARCZENKO: Does she know when her opinions were disclosed to the court.
A Yes, I do. July 13th.
THE COURT: She's answered the question. You may proceed.
BY MS. ODARCZENKO:
Q July 13th?
A I believe that's correct.
Q And not prior thereto?
A Not prior thereto, no. That's when I was deposed.
MR. WOHLBERG: Judge, this is -
THE COURT: No, no. Let's just proceed. Go ahead.
MR. WOHLBERG: Yeah.
BY MS. ODARCZENKO:
Q At the time of your deposition you agreed that your opinions were accurately summarized in a document entitled Plaintiff's Disclosure Pursuant to Supreme Court Rule 213(f) and (g). Do you recall that?
A Okay. Yes, I do.
Q And at the time you reviewed the opinions and you agreed with the content thereof, is that correct?
A I agreed with 1 and 2.
Q With 1 and 2?
A Yes.
Q Would you -
A I don't think I have it here. Yes, I do.
Q Do you have that document in front of you, ma'am?
A Yes.
Q Would you take a look at the date on the affidavit of service. What does it say? It's the last page of the document.
A Affidavit of service was 6/15/99.
Q Ma'am, you've never ever worked in a nursing home as a certified nurse's assistant or as a nurse, is that correct?
A Correct.
Q You've never supervised nurses in a nursing home, is that correct?
A Correct.
Q You have never supervised certified nurses' assistants in nursing homes, is that correct?
A Correct.
Q And the last time that you rendered hands-on patient care was in 1967, correct?
A Correct.
Q And at that point in time you had been rendering patient care for approximately three to four years, since 1964, correct?
A Since I had been registered but not since I had rendered care. I had rendered care three years prior to that.
Q While you were a student nurse?
A Right.
Q So the entirety of your professional career as a licensed nurse rendering hands-on patient care was from 1964 to 1967, correct?
A Correct.
THE COURT: They're having a little trouble hearing upstairs. Could you stand a little closer to the microphone either here or at your seat, wherever you'd like to be.
MS. ODARCZENKO: Sure, Judge. May I approach the lectern, Judge?
THE COURT: Yes.
BY MS. ODARCZENKO:
Q All right. Dr. Buschmann, you in fact cannot teach nurses in a clinical setting because you don't have a master's degree in nursing, is that correct?
A That is correct.
Q Your bachelor's is in nursing, and that was in the ′60s, correct?
A. Correct.
Q And your further degrees were not in the field of nursing, correct?
A Correct.
Q Your Ph.D. is in physiology, is that right?
A Incorrect.
Q What is your Ph.D. in?
A Anatomy.
Q Anatomy. That's not a branch of nursing, is it?
A Yes, it is.
Q Anatomy is a branch of nursing, that's your opinion?
A Yes. Anatomy, ail nurses must take courses in anatomy and physiology.
Q And in the anatomy class do you teach students how to physically render hands-on assistance with the activities of daily living?
A In the anatomy course?
Q That's right, that you teach.
A I don't teach an anatomy course.
Q In your studies of anatomy did you study how, for example, to give a patient assistance in walking with the use of a walker, wheelchair and the like?
A No, of course not.
Q You're not familiar with Snow Valley, are you?
A No, I am not.
Q And you have no idea of the number of nurses or CNAs that staffed Snow Valley during each shift in 1994, isn't that true?
A That is true.
Q You've never reviewed the Methodist Hospital records in this case, is that true?.
A No, I have not.
Q So in terms of what conditions, what medical conditions if any Anna Prairie had prior to June of 1994, you would have no knowledge of that?
A No, I do not.
Q So you would have no knowledge of whether she had cancer, is that correct?
A It was not in the record.
Q You have no knowledge of prior episodes of atrial fibrillation, is that correct?
A I saw no records prior to her admission to Snow Valley.
Q Okay. Let's talk about the records that Mr. Wohlberg supplied you. As I understand it, you received one page of Administrator Mardi Gibbs' deposition, is that correct? You reviewed one page of her deposition?
A It was one or two.
Q Okay, one or two pages. You didn't review the balance of her deposition, did you?
A No, I did not.
Q You didn't ask to review the balance of her deposition, did you?
A No, I did not.
Q So the only portions of the deposition of Nurse Gibbs or of Mardi Gibbs that you got was what Mr. Wohlberg supplied to you, what he chose to give you?
A Correct.
Q And with respect to the deposition of Robin Prairie, you reviewed that in its entirety, didn't you?
A Yes, I did.
Q Now, on the other hand, Deb Pesek, the nurse - or, I'm sorry, the CNA who had contact with Anna Prairie, you reviewed three or four pages of her deposition that were sent to you by Mr. Wohlberg, isn't that correct?
A Correct.
Q But in terms of the rest of what Ms. Pesek testified to that occurred during that period of time that Anna Prairie was at Snow Valley, you have no knowledge of that, isn't that true?
A Correct.
Q And that's not important to your opinions, the CNA's interactions with the resident, is it?
A Incorrect.
Q Well, why didn't you read the deposition then?
A I don't need to read the whole deposition. I did not need - what I need to know I had in front of me.
Q Okay. So you only reviewed what Mrs. Wohlberg's husband sent you to review, is that correct?
THE COURT: You may answer.
A Yes.
BY MS. ODARCZENKO:
Q You said you worked with Mrs. Wohlberg for ten years?
A Yes.
Q And she supervised the grant that you were working on at that time, correct?
A No.
Q Was she involved in the grant that you were working on?
A Yes, she was.
Q Now, in terms of your review of this case, did you review any materials which could give you any basis whatsoever to form an opinion on whether Vivian, the alleged demented patient as you've called her, had the physical capability to pull someone out of bed?
A No, I did not, and I did not say alleged demented patient. I said alleged patient who came into the room, allegedly pulled out of the bed. I said it was stated in the record that she was found on the floor.
Q Anna Prairie was found on the floor?
A Yes.
Q Did anyone witness Anna Prairie being pulled from bed?
A Not to my knowledge.
Q When Anna Prairie went to the hospital at Good Samaritan and made the comment to the nurse which you referred to, did she have her hearing aids on?
A I have no idea.
Q Was she hard of hearing, do you know?
A Yes, she was.
Q Do you know what a geri chair is?
A Yes, I do.
Q Do you know whether Vivian was tall enough or large enough to have her hands even extend beyond the geri chair tray table?
A I have no information on Vivian except her name.
Q Except for what Ms. Prairie said in her deposition?
A Well, yes, and the nurse.
Q And you didn't review the rest of the - actually she's a CNA, isn't she? Deb Pesek's a CNA, isn't she?
A I'm sorry. I do not recall their names. It was sometime back.
Q You didn't review the rest of Deb Pesek's deposition, did you?
A I only reviewed what I told you I reviewed.
Q You said in your testimony on direct exam that Anna Prairie fell at the nursing home on June 2, 1994, is that correct?
A I believe that's what I said, I mean, just now. In actuality she slid from a chair.
Q In actuality she slid from a chair, didn't she?
A Yes, yes.
Q And she wasn't injured as the result of that slide out of her chair, was she?
A To my knowledge, no.
Q And you've reviewed the entire Snow Valley chart, correct?
A Correct.
Q With respect to June 10, 1994, did you review that entry?
A If I reviewed the whole chart, I must have.
Q You are aware, are you not, that there was an entry in the chart relating to an occurrence on June 10, 1994 where Mrs. Prairie had asked another resident to lower her side rail so that she could use the bathroom? Do you recall that?
A I do not recall that.
Q You read the chart carefully, didn't you?
MR. WOHLBERG: Objection.
THE COURT: Sustained.
BY MS. ODARCZENKO:
Q That event of June 10, 1994 where Mrs. Prairie had allegedly fallen, did her blood pressure lower as the result of that fall? Did it?
A You are confusing me with dates. Are you not referring to June 5th?
Q No, ma'am, I'm not. I'm referring to the event of June 10th that I just spoke of where another patient lowered her side rails at her request. That's the event I'm referring to.
A Okay. And what is the question?
Q The question, ma'am, is that event did not cause her blood pressure to lower, did it?
A I do not recall that her blood pressure was taken. The only blood pressure that was recorded for that day was 110 over 56, and that was low.
Q Ma'am, what text or treatise or written document do you rely upon in forming your opinion that vitals should have been taken each shift? •
A The complete composite of my background of education, experience, career and everything that I teach and my research.
Q Perhaps you didn't hear my question, so I'll repeat it. My question, ma'am, is what text, treatise or other written authority do you rely upon in forming the opinion that vitals should have been taken each shift?
A There is no text, treatise or written opinion that will give you that information. That is part of the standard of care which is based on judgment on the part of a nurse. The CNA is not responsible for that.
Q Ma'am, the standard of care for nursing practice is an important thing, isn't it?
A Yes, it is.
Q And despite the fact that it's an important standard of care, it's not written down in anything that you can cite to us today, is that correct?
A Not the way you want it to be written down, no.
Q Well, no. Ma'am, my question is specific. Where, in what document, text or treatise does it say that vitals have to be charted in a nursing facility every shift?
MR. WOHLBERG: This has been asked and answered, Judge.
THE COURT: You may answer it if you're aware of any such -
A There is no such thing.
BY MS. ODARCZENKO:
Q Ma'am, let's talk about your forensic work for a minute. You do review cases for lawyers, is that correct?
A Yes, I do.
Q And typically you review the records before you formulate your opinions, is that correct?
A That is correct.
Q And it's your statement today that that's what you did in this case, you reviewed the materials before your opinions were committed to paper, is that correct?
A If you are talking about the affidavit, that is not correct. If you are talking about my opinions, that is correct.
Q No. I'm talking about the document that you agreed with me in your deposition that with respect to Items 1 and 2, those outlined your opinions.
A Yes.
Q So it's your statement here today that you reviewed the records in this case prior to that document that identified your opinions?
A I had not fully reviewed those documents prior to this statement of my opinion. I was able to verify in my mind what I needed - how I needed to make this opinion, and I confirmed it and reinforced it by thoroughly going through all of the documents.
Q Ma'am, it's true, is it not, that you are advertised, so to speak, as an expert in a compendium entitled Expert Witness International, is that true?
A It is true that I am in the Expert Witness International. I am no more advertised in there than I am in my listing of the American Men and Women of Science and in Who's Who of Nursing Research.
Q That's a document that you would expect attorneys to go to to find a nursing expert?
A Possibly.
Q What are you charging for your time in this case?
A $300 an hour.
Q And who was the president at the last time that you ever rendered hands-on patient care to any patient, 1967?
A Are you giving me an MNSE exam?
Q My question to you, ma'am, is who was the president of the United States at the time that you last rendered hands-on patient care in 1967.
A Lyndon Johnson.
MS. ODARCZENKO: Thank you.
THE COURT: Mr. Harris, do you have any questions?
MR. HARRIS: Just one confirmation.

CROSS-EXAMINATION

BY MR. HARRIS:

Q Ma'am, none of the opinions that you have in this case apply to Dr. Marwaha, my client, correct?
A No, they do not.
Q That's because you don't have a medical degree?
A Correct.
MR. HARRIS: Okay, thank you. THE COURT: All right. Is there any redirect-examination?
MR. WOHLBERG: Yeah, just a few.

REDIRECT-EXAMINATION

BY MR. WOHLBERG:

Q With regards to when you initially rendered your opinion, did you have sufficient material before you to give those opinions?
A Yes, I did.
Q No questions about it?
A None.
Q With regard to the issue of vital signs three times daily, is that the standard of care as a matter of. common sense?
MS. ODARCZENKO: Objection. Asked and answered.
THE COURT: Well, I think I will have to. sustain that objection.
BY MR. WOHLBERG:
Q Okay. With regards to there was a mention of Mardi Gibbs, that was on a very narrow issue, was it not?
A Yes, it was.
Q That had nothing - it has nothing to do with your opinions today?
A Not really, no. My opinions are based on. the record.
Q Okay.
A Not on the depositions.
Q And whatever you were given were what you needed to render your opinions in this matter?
MS. ODARCZENKO: Objection. Asked and answered.
A No. May I make a statement?
THE COURT: All right. You may, yes. But answer the question, ma'am.
A Yes. They were on what I was given, but I did ask that I not be given more than I needed because I had run into problems previously when my fees went up because they gave me things I didn't really need to review.
BY MR. WOHLBERG:
Q Is it necessary to review 150-page depositions when you're interested in one or two facts that may be contained on one page or two pages?
A No. What's most important to me is the record of the hospitals and the nursing home.
Q. Now, Dr. Buschmann, would you ever come into a courtroom and give false testimony because you once worked with my wife, Mrs. Wohlberg, as counsel puts it?
A I hate to say this, but there's no connection between you and your wife as far as I'm concerned. I've never seen you together. I don't know you as a couple. You came out of the blue to me, and it was your name that I recognized.
Q Now, is it necessary to work hands-on as a certified nurse's assistant or a nurse to know the standard of care in the State of Illinois?
MS. ODARCZENKO: Objection, Judge. That calls for a legal conclusion.
THE COURT: Overruled. You may answer it.
A Would you please repeat the question?
BY MR. WOHLBERG:
Q Sure. Just because you last worked as a nurse with hands-on care in the ′ 60s, does that have any bearing on your knowledge and your understanding of the standard of care in the State of Illinois?
A No. One of the finest institutions in this country would not allow me to teach its students if I were not highly qualified.
MR. WOHLBERG: I have no further questions.
Thank you very much, Dr. Buschrmann.

RECROSS-EXAMINATION

BY MS. ODARCZENKO:

Q Doctor, am I understanding correctly that the reason that you didn't ask to read the entirety of the depositions of the nurses and CNAs who were there on the day that Anna Prairie fell and was taken to the hospital and also on the date of her death is because you didn't want your fees cut?
A No, ma'am. It is because I did not find it necessary to spend extra time reading something that was not going to help me form my opinion.
Q And because if you reviewed it and your fees were too high, you were afraid they would be cut, correct, as they have been in other cases in which you've testified, correct?
A I think it's very judicious for an expert witness not to pile on hours for the person who has hired them.
Q Let me ask you this, ma'am. In the past where you have testified as an expert, you have had your fees cut, is that correct?
A Yes, and that was the incident I referred to.
MS. ODARCZENKO: I have no further questions of this witness.
THE COURT: Is there any final redirect? MR. WOHLBERG: No, Judge.
THE COURT: Thank you, Dr. Buschmann. You are excused as a witness.
(Witness excused.)
THE COURT: Ladies and Gentlemen, at this time we will recess for the afternoon. I want to thank you again for your patience and your attention throughout the trial today. And, again, I will admonish you that you should not discuss the matter amongst yourselves or with anyone else or try to reach any decision until you've heard the entire case of which this is so far only a part.
So thank you again. You'll be excused at this time. I'll ask you to come back again tomorrow morning at 10. Hopefully we'll be ready to start closer to the time that I've asked you to come back. Have a nice evening. We'll see you tomorrow morning.
(The following proceedings were had in open court outside the presence and hearing of the jury:)
THE COURT: All right. Counsel, is there anything else we should address before we recess? What about the instructions?
MR. WOHLBERG: Oh, yes. Judge, I'm doing the best I can. I'm going to give you a number of - I've got a lot of them here. I'm still - let me start with - there's 30.01.
MR. HARRIS: Thanks.
MR. WOHLBERG: 30.01, 30.01. They're just not in any one order, Judge. Here's 21.02. This is the burden of proof instruction, Judge.
THE COURT: I'll tell you what.
Rather than go through any type of conference on instructions -
MR. WOHLBERG: No. Maybe I'll just separate them out and give you a set.
THE COURT: - why don't you just give me a full set so I can have it and start looking through this.
MR. WOHLBERG: Yeah.
THE COURT: Have a copy for counsel also so maybe tomorrow at some point, at least preliminarily, from these issues instructions we can address them a little bit so we don't have to discuss them right now.
MR. WOHLBERG: Do you want me to get them for you tonight, Judge?
THE COURT: Yeah. Just leave it for the bailiff when he comes back in the room, and -
MR. WOHLBERG: What have I given you so far, 30.01 and -
THE COURT: You've given me 30.01 and you've given me 21.02.
MR. WOHLBERG: Okay.
THE COURT: Do we have anything else? Do you have anything else?
MS. ODARCZENKO: Not at this time.
MR. HARRIS: What time are we back tomorrow?
THE COURT: 10 o'clock.
MS. ODARCZENKO: And just so. we're clear, tomorrow the only witness the plaintiff is calling is Dr. Marwaha on adverse and then he will rest, she will rest.
THE COURT: Mr. Wohlberg?
MR. WOHLBERG: No, I don't know. There might be one other witness, but it would be very short, very short.
THE COURT: Okay.
MR. WOHLBERG: I mean, it will be a matter of minutes.
THE COURT: Are you going to recall your client for any reason?
MR. WOHLBERG: I'll have to look at that tonight and see whether or not I want to call her.
THE COURT: However, you should be able to start probably by mid morning. All right. Counsel, have a nice evening. Court is adjourned.
MS. ODARCZENKO: Thank you, Judge.
(Whereupon the trial was adjourned from 5:10 p.m., February 9, 2000, to 10 a.m., February 10, 2000.)
STATE OF ILLINOIS)
SS.
COUNTY OF COOK)
I, MARY MASLOWSKI, CSR, do hereby certify that I reported in shorthand the proceedings had at the trial aforesaid, and that the foregoing is a true, complete and accurate. transcript of the proceedings at said trial as appears from the stenographic notes so taken and transcribed on the 9th day of February, 2000.
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