Direct and Cross Examination of Nursing PhD and Expert Witness
BY MR. WOHLBERG:
A Mary Beth Tank Buschmann, Mary Beth Tank Buschmann.
Q Thank you. What is your current occupation?
A I'm a professor of medical-surgical nursing at the University of Illinois at Chicago.
Q And, Doctor, have you brought a CV with you?
A No, I have not.
Q I'm going to give you a marked copy.
THE COURT: Oh, I'm sorry, yes. Ma'am, if you will, speak up and just sit as close as you can to that microphone.
THE WITNESS: Okay. Is that better?
THE COURT: All right. Counsel, you may proceed.
(Whereupon Plaintiff's Exhibit No. 19 was marked for identification.)
BY MR. WOHLBERG:
Q I'm going to show you what I'm marking as Plaintiff's Exhibit 18, I believe - .19, and ask you if you can identify this.
MS. ODARCZENKO: I'm sorry, Judge, 18 or 19?
THE COURT: I believe this would be 19.
MR. WOHLBERG: That's what I thought.
A Yes, this is my curriculum vitae as of May 17, 1999.
Q I'm going to go through this with you. Could you tell us a little bit about your own background, your educational background starting your with undergraduate?
A My undergraduate I did at Augustana Hospital in Rock Island, Illinois. I received a BSN with three years of diploma nursing as my major but with a five-year program. I then went to the University of Illinois in Champaign, Urbana and received my master's in biology. I then went to the University of Illinois at the medical center in Chicago and received my Ph.D. in anatomy at the medical school.
Q You got your Ph.D. from the University of Illinois at the medical center?
Q And that was in what year?
A That was in 1975.
Q Are you a licensed nurse in the State of Illinois?
A I'm a licensed registered nurse in the State of Illinois.
Q And do you have any certification beyond your licensure?
A Yes. I'm board certified in gerontological nursing.
Q Can you tell the jury a little bit, what is gerontological nursing?
A Gerontological nursing is the study and practice of older adults, both well and ill.
Q So that's kind of - aside from being an RN, that's kind of a subspecialty of yours?
Q And over the years in your - let me ask you first before I get into that, what were your - you did theses for your degrees, your graduate degrees?
A Yes, I did. I did a thesis for my master's degree in the discovery of a new species in protozoan, and I did a dissertation for my Ph.D. in a study of protein synthetic organelles of the hamster AG brain.
Q Do you belong to any professional organizations?
A Yes, I do. I belong to the American Association for the Advancement of Science. I belong to the Gerontological Society of America. I belong to the National Nurses Gerontological Association as well as the northern chapter for the National Gerontological Nurses Association. I belong to the Society for American Gerontology. I belong to the Midwest Society for Nursing Research. That's all I can remember off the top of my head.
Q Doctor, tell the jury a little bit about your professional positions you've had over the years.
A I have worked as a nurse, a staff nurse, as a charge nurse on p.m.'s. When I was in Champaign, Urbana I worked at the University Hospital, and I also worked at Mercy Hospital. And I worked with medical patients who were students at the university when I was at the university hospital, and I worked on a surgical floor when I was at Mercy Hospital.
I then went back to school. And between my master's and my Ph.D. studies, I established and ran a kidney biopsy lab at the University of Wisconsin in the department of pathology of the medical school for electron microscopic diagnostic work for people with kidney disease. After a year there then I came back to Chicago and went to graduate school for my Ph.D., and following my Ph.D. in 1975 I was hired as an assistant professor at the College of Nursing at the University of Illinois Medical Center.
I was promoted from assistant to associate professor in 1979, and that was in the department of general nursing, and then I was promoted to full professor in 1984. During all this time I also had an appointment in the graduate college, so I was teaching graduate students as well.
In 1985 I was transferred in the department of medical-surgical nursing. Because of my focus in gerontology, they didn't quite know where to put me in the beginning because the term wasn't even used back in 1975. It was a brand new field. And so I have basically pioneered the program of gerontology in our college for the last 25 years. In 1995 I became certified as a gerontological nurse, and I have just renewed my certification. So I am now certified until.2005.
I've done teaching research. I've done bench research with, as I mentioned, with the hamsters AG brain. I studied the protein synthetic organelles which are responsible for the end result of cognition and thinking. I then switched to human research in 1985 after ten years because of the inability to get funded as a nurse, in biological studies, and so I've been studying depression and dementia and nursing interventions and expressive physical touch with these patients because it sounds like I should be a psych nurse, but I'm not because it's the medical-surgical nurse and the gerontological nurse that are the first line of care for older adults when they come in for medical problems who have overlying dementia and depression.
And these two conditions are often ignored or pushed aside by medical-surgical and general nurses because they do not know how to handle the situation. So those people who are demented or in early dementia but way before the psychiatrist and the psychiatric nurse is called, the medical-surgical nurses are dealing with them having a broken hip or labile diabetes or they came in because of congestive heart failure or whatever it is. And if they're in early dementia, they many times are very disruptive and wander, and so they will even restrain them physically or chemically. With depression -
MS. ODARCZENKO: I'd enter an objection at this point in time. I believe the question's been more than answered.
THE COURT: Can you ask another question.
MR. WOHLBERG: Sure.
Q So a good part of your work now is totally related to working with gerontological patients?
A As well as my teaching.
Q And can you break your week down, I don't know, between teaching and -
A At this point I'm probably doing about 75 percent teaching and about 15 percent or half, of that of service and the other half in research. I'm doing more writing now than actual research.
Q Now, you've done many, many - or have you done research presentations over the years?
A Yes, ever since 1975.
Q So they're fairly extensive, and they're on your resume?
A Oh, yes. I think that's a couple pages of them.
Q Have you been invited as a consultant to give presentations?
A Yes, I have several times.
Q And those will also be found on your CV?
Q And what are the areas that you've addressed over the years in your presentations through outside -
A In the early years my presentations dealt with my animal studies. Since 1985 my presentations have dealt with many different aspects of older adults, everything from incontinence and pressure sores to focusing on pain and dementia, depression and delirium, which is what I do most commonly now around the State of Illinois. I give workshops two, three times a year to the nurses who do not have access to Chicago, quite frankly.
Q Now, with regard to your - it looks like under Funding you've done further studies also. Let me - I'm not quite sure.
A Okay. Under my funding, initially the way I was able to set up a lab and do my hamster research, I needed all the supplies and equipment. And the school supplied me with a room, but I needed to get the funding in order to do the studies. And that went through until 19 - gosh, until 1995, I believe is the last. - or 1992.
A Then I went into more training grants, which were funded as well as getting funding for the depression and dementia studies with touch.
Q In the elderly?
A In the elderly.
Q And in this case, this case is about elderly -
A An older adult.,
Q An older adult. Now, at some point - oh, I'm sorry. Lastly, you've also been a reviewer in some books and some magazines or some books and -
A Yes, I have. I've also published over 30 manuscripts of my own, 5 of them this year, in fact. And I don't think that that CV is completely up to date because some of them have come out since I sent that CV in.
Q So since you've given this to all the attorneys, you've had additions to this as well in publications?
A I don't believe - because I just got one this week that have been published in 1999. So some of this is very new.
Q Why don't you just make sure on that (tendering).
A You want my publications?
Q Yeah, yeah.
A This one, this CV, as of May I had four - I had published one publication in 1999 on expressive physical touch with dementia in older patients, and since then of which are in press here I did “The Implementation of Expressive Physical Touch in Depressed Elderly.” I did “The Prospective Investigation of Pain and Emergency Room Department.” “The Touch Model” is in press but not out yet. “Factors Associated with Excess Disability in Arthritic Elderly Patients” has been published. And since then I have also published “Expressive Physical Touch with Demented Patients” as well as “The Failure to Thrive in Older Patients,” which is connected with depression.
Q So those would be additions to what we're going to have?
A Right, right.
Q Now, over the years have you reviewed cases for legal matters such as this?
A Yes, I have.
Q And in those cases have you given opinions both for plaintiff and defendants?
A Yes, I have. When I'm asked to review a case, I usually do not know the lawyers when they call me. They find out my name in other ways. And I tell them initially that I will be willing to review the material and, whether they are defendant or plaintiff, I will give them my opinion in favor of the patient, and they can either accept it or get somebody else.
Q You brought your own notes with you regarding this case?
A Some of them, yes.
Q And with regards to your review of the case for me, when approximately did that take place?
A That took place in June of 1999.
Q And had you ever met me or ever talked to me before this review?
A No, I had not.
Q Is there a connection somewhere between yourself and somebody I know?
A Yes, but you were totally anonymous. I have worked with Mr. Wohlberg's wife for many years in the field of gerontology. We had a federal grant for educating nurses in the State of Illinois in gerontology, and she was an executive director or some big administrative person in that grant. And since I was the director for nursing in the grant, I worked very closely with her. So I had known her for about ten years.
Q Did the fact that you had worked with my wife, did that have any influence on the opinions you're going to render today?
A No. In fact, I told you the same thing I tell everybody else.
Q Why don't you tell me what you did review for this case and tell the jury.
A I reviewed the chart from Snow Valley Nursing Home. I reviewed the chart from Good Samaritan Hospital. I reviewed the chart from Edwards Hospital - Edwardsville Hospital. I reviewed Robin Prairie's deposition. And I had some pieces of some of the nurses' depositions., namely for describing what the incident was because when I came on the case, there was no incident report, and there was no record of it.
Q When approximately did you first review this? Do you have that in your notes?
A Yes, I do. I saw you on the 15th. I started reviewing it that week after I had met you and you gave me the material, and so it was in the latter part of June of 1999. And I summarized my notes, having reviewed that on July 4, 1999.
Q All right. Now, in this case you have offered some opinions, is that correct?
A Yes, I have.
Q And let me ask you to a reasonable degree - first of all, are you familiar with the standard of nursing care in the State of Illinois?
A Yes, I am.
Q And what's your understanding of the standard of nursing care?
A My understanding of the standard of nursing care is that in treating a patient, a nurse has to possess and apply knowledge as well as use the skill and care that would ordinarily be used by reasonably well-qualified nurses in this locality or in a locality similar to. our case and a circumstance similar to the one in which he or she practices.
Q Is that in conjunction with any State regulation?
A Yes. There's also a Nurse Practice Act, which is part of the State law.
Q Let me ask you, Dr. Buschmann, do you have an opinion to a reasonable degree of nursing certainty that Snow Valley and its employees and agents, including nurses and nurses' assistants, deviated from their respective standards of care in failing to protect the plaintiff decedent Anna Prairie from cognitively impaired patients at Snow Valley Nursing Home
MS. ODARCZENKO: Objection, foundation.
MR. WOHLBERG: I'm not done.
THE COURT: Finish the question.
BY MR. WOHLBERG:
Q - prior to her being pulled from her bed on June 5, 1994?
MS. ODARCZENKO: Objection. Foundation, form, leading.
THE COURT: Ladies and Gentlemen, at this point I think it may take a few moments to resolve this. I'm going to ask you this time if you will wait in the jury room for a few minutes, and then we'll call you back shortly and resume the testimony.
(The following proceedings were had in open court outside the presence and hearing of the jury:)
THE COURT: Ms. ODARCZENKO, you stated three objections.
MS. ODARCZENKO: Yes, Judge. Can we have the witness excused, please.
THE COURT: Ma'am, will you please wait outside for a few moments. We'll call you back shortly.
(Whereupon the witness left the courtroom.)
MR. HARRIS: Your Honor, may we ask that Ms. Prairie not talk to the witnesses in between their testimony.
THE COURT: Ask her that she not speak to the witnesses, please. The first two objections were foundation and form?
MS. ODARCZENKO: Yes, Judge.
THE COURT: What is the objection?
MS. ODARCZENKO: My continuing objection which I made in my motions in limine before trial were to the qualifications of this witness. And that is my foundational objection, because I still do not believe this witness has been shown to have the requisite knowledge regarding the standards of care for nursing. She does studies on brain rats and human touch. That's it. She doesn't treat patients. There's been absolutely no testimony that she's touched a patient since 1967. So that is my continuing objection.
THE COURT: The statute says practice or teach in a specific area, I think. She has said that she does work in the area of gerontology. She's a member of two professional associations. She gives workshops two or three times a year to nurses, I believe she said, on issues related to older adults to nurses who do not have access to Chicago.
MS. ODARCZENKO: There's been no, indication -
THE COURT: She said her current work is primarily working with gerontological patients, writing and teaching. Now, it would seem to me she would be qualified to give an opinion relating to the standard of care relating to nursing care, particularly of older patients, based upon this.
MS. ODARCZENKO: Your ruling is what it is, Judge. I just want to have a standing objection, and I'll make it in court.
THE COURT: If, in fact, this is a nursing home case, is there a different standard of care for nurses in a nursing home than to a nurse practicing in some other area?
MS. ODARCZENKO: Yes, Judge, I believe there is.
THE COURT: Is that part of your objection?
MS. ODARCZENKO: Yes, Judge, that is part of my objection. And as I indicated at the time of the hearing and the motions in limine, my offer of proof is the testimony of my expert to that effect. And I believe that I also - I will bring in my expert, Judge, and I will connect that up. I can make an offer of proof that my expert will testify that the standards of care with respect to nursing in hospitals, which is a critical care acute situation, versus the standards of care in nursing facilities is a totally different standard of care.
Nursing facilities aren't equipped to handle the kind of acute situations that hospitals do in fact handle. That's what the case that I brought in this morning, Stogsdill, intimates, and I can have my. expert connect that up. There's been no indication that this witness - she may have all the familiarity in the world with older adults and the studies of how touch affects them. But, Judge, she's never even worked in a nursing home, never.
THE COURT: Well, does she have to?
MS. ODARCZENKO: She's never taught nursing home care.1*09.
THE COURT: If she believes that she is qualified to render an opinion, then one reason why I felt the jury should be sent out is if you wish, you may conduct a voir dire of the witness if you have some objections to her qualifications that you want to ask. Do you wish to do that at all before we proceed?
MS. ODARCZENKO: Sure, Judge. I would like to voir dire the witness on her qualifications and then renew my objection just so we can expedite things because I know we have a jury waiting, Judge. My objection as to form was if this isn't a leading question, I don't know what is.
THE COURT: Well, that can be cured. Let me ask you then this before we proceed. What is the difference, if any, in the standard of care for a nurse treating a patient in a nursing home or in some other venue?
MS. ODARCZENKO: The standards of care for nursing in nursing homes are different than they are in the hospital. In the nursing home people who attend to the patient or the resident, I should say, they're helping the resident with activities of daily living. In an acute medical emergency or in a situation that requires hospital care the patient is then transferred to a hospital pursuant to a physician's orders. They don't render hospital care in nursing homes.
And my objection as to this particular witness is that she has only worked in hospitals. She didn't work in a nursing home. She's never even taught nursing home care. CNAs in the nursing home assist residents with their daily life activities that they can't do without assistance. That's not something that happens in a hospital. They're two totally different settings.
THE COURT: Okay. Now, in this case I think what has been pointed out by the plaintiff is that there was not proper monitoring and there was not taking of vital signs which would have recognized a problem, or the alleged problem of atrial defibrillation.
What is the difference then if a nurse is attending a patient with a history of atrial fibrillation and various problems that have now been described whether or not that nurse is dealing with a patient in a nursing home or any other place?
MS. ODARCZENKO: Because, Judge, I believe that hospital standards, hospital procedure and protocol, written policies and procedures in hospitals are different on the charting of vitals than they are in nursing facilities.
THE COURT: Okay. Do you want to call the witness back, please.
MR. WOHLBERG: Sure. Judge, I know we're - I had one additional problem, and it may have to wait. Dr. Breall's luggage is in my trunk. I went down where I hung my coat up this morning. I don't see my coat there. I mean, I'm not sure if I - maybe I misplaced it. They're looking for it. We'll deal with it later.
THE COURT: I have no idea. Someone will help you or help your client. •
MR. WOHLBERG: They are.
THE COURT: Do you want to call the witness back in.
MR. WOHLBERG: Yeah.
(Whereupon the witness re-entered the courtroom.)
THE COURT: Ma'am, would you like to take a seat again in the witness stand. In a trial of this kind before a witness may testify, an expert witness before a jury, sometimes the attorneys have an opportunity to, depending upon what the subject area of the testimony is, to question the expert witness relative to qualifications.
And here the question I think that's at issue relates to the standard of care of nurses in different places where they may work, a hospital, a nursing home or some other place. The attorney is going to ask you some questions relative to your experience on the question of the standard of care and your background to know what it is. Ma'am, you may proceed.
MS. ODARCZENKO: Judge, may I proceed as if on cross-examination?
THE COURT: You may.
MS. ODARCZENKO: Thank you, Judge.
VOIR DIRE EXAMINATION
BY MS. ODARCZENKO:
Q You have never worked in a nursing home as a CNA, correct?
Q You have never worked in a nursing home as a nurse, correct?
Q Because you do not have a master's degree in nursing, you cannot teach CNAs how to render care in nursing facilities, is that correct, how to render hands-on patient care?
A I do not know.
Q Do you teach CNAs or nurses how to render hands-on daily patient care in nursing facilities?
A I teach nursing students, not CNAs, who are going for their bachelor's how to do clinical skills, yes.
Q Do you teach nurses who are going to be working in nursing homes how to render patient care?
A I have no idea where these students are going to go when they graduate. I would assume that some of them will end up in nursing homes and, in any case, will be working with elderly people. In my teaching I, because it's my background, I automatically talk about the special cases for older adults that they might run into and how to deal with them.
Q Ma'am, I know that you've never worked in a nursing home, but are you familiar with the different types of equipment which are available in hospitals for the monitoring of patients which are not available in nursing facilities, such as a heart rate monitor?
A Yes, I am.
Q So nursing homes do not have heart rate monitors that monitor a patient's heart rate around the clock, is that correct?
A As far as I know, they do not.
Q However, hospitals, because they treat patients for acute situations, generally do have that type of equipment, is that correct?
Q You are familiar with the standard of care for charting in hospital settings, is that correct?
Q All right. When was the last time you entered any vital signs into a hospital chart?
A Probably in 1964.
Q in 1964?
A I'm sorry, in 1967.
Q. All right. Ma'am, have you done any research or study of the differences in charting protocol between nursing homes and hospitals?
A I have not done a study. That is not part of my research.
Q Your research does not include issues regarding the standards of care insofar as they relate to nursing facilities, does it?
A Of course, it does.
Q Well, in your studies regarding touch, is there any attempt to study the monitoring of vitals?
Q Vitals have nothing to do with the hands-on touch studies that you've conducted, is that correct?
A That's correct.
Q Ma'am, do you in fact know what the standard was for charting vitals in nursing facilities in 1994?
A I'm not sure I understand your question.
Q Do you know what the standard of care required for the charting of vitals in nursing homes in 1994?
A Are you asking about frequency?
Q I'm asking about charting of vitals, period, in a nursing home. Do you understand what it was?
A They certainly are charted.
Q Do you assume it to be the same as that in hospitals because you've never worked in a nursing home?
A It's not exactly the same as in a hospital, no.
Q All right.
A Because the frequency is not the same. The technique is identical.
Q All right. The frequency is not the same between a nursing home and a hospital setting, is that what you're saying?
A In general, yes.
Q Do you teach courses to nurses on when to use restraints in the nursing home?
A I teach a course on when and how to use restraints, period.
Q Do you know whether there is a difference in the use of restraints between a hospital setting and a nursing home?
A In the technique there is none.
Q Do you know whether there is a difference in when the restraints can be applied in a nursing facility as opposed to an acute situation in a hospital?
A There is no difference.
Q Do you know what the patient's bill of rights is for nursing homes? Are you familiar with that?
A I've heard of it.
Q Do you know what the principles regarding freedom of restraint are for every nursing home patient in Illinois?
A I cannot give it to you verbatim.
Q Well, tell me what your understanding of it is.
A A patient has the right not to be restrained.
A patient can be restrained under emergency conditions for protecting himself or herself or the staff, but there must be a doctor's order for that within 24 hours which is written, not verbal.
Q Ma'am, if you haven't touched a patient with hands-on care since 1967, how is it that you're able to teach nurses how to render hands-on patient care?
A Because I am a registered nurse, I am board certified, I understand the principles of nursing and I have practiced nursing for many hours. And while my years are short, I went through a diploma program and I nursed as a full-time nurse for the two years, my last two years while I was going to school. So I did not include that as part of my professional employment.
Q Have you done anything to familiarize yourself with whether there are any updates to the standard of care since the time you last touched a patient in 1967?
A Of course, I have.
Q And what have you done to familiarize yourself with current practices?
A I read my journals. I go to seminars. I get CEUs on a regular basis. I talk to other nurses. I am on committees of consultation within hospitals and nursing homes. Issues of care come up, and I am involved in all of that.
MS. ODARCZENKO: I'm done with my voir dire, Judge.
THE COURT: All right. Do you have anything?
MR. WOHLBERG: No, I don't have anything, Judge.
THE COURT: Mr. Harris, did you have any questions you wanted to ask?
MR. HARRIS: No, sir. She's not an expert against Dr. Marwaha.