Direct and Cross Examination of Internist in Nursing Home Lawsuit
DIRECT EXAMINATIONBY MR. SHAPIRO:
Q. Doctor, when we were - left off yesterday, we were talking about what are the normal levels for blood glucose. Can you tell us, first of all, with respect to the fasting blood sugar we talked about, in other words when they test after the patient has not eaten
overnight, wh. would be the normal level for that?
A. 70 to 100 milligrams per 100 cc., so 70 to 110.
Q. And how about for the other type of test is called a random?
A. A random blood sugar post prandial.
Q. What is that?
A. Anything 140 or higher is abnormal.
Q. 140 or higher is abnormal?
A. Is abnormal.
Q. And that's - that test is after the patient has eaten?
A. Well, that's why it's called random. It's unrelated to any activity, be it eating or whatever because you don't know how it relates to- a meal, so blood sugar of 140 or higher is - is distinctly abnormal.
Q. Now, Dr. Fine, I believe you told us yesterday that even if Dr. Azaran had not discontinued the sliding scale insulin that it was still below the standard of care not to order the Humulin N for him while he was in the nursing home?
Q. But would Dr. Azaran be acting reasonably if he left Paul :ter off the Humulin N whi in the nursing home because of concern of hypoglycemia or too low blood sugar?
MR. POWER: Objection to the form.
THE COURT: Sustained.
BY MR. SHAPIRO:
Q. In your opinion, in connection with your opinion that Dr. Azaran acted below the standard of care, would a reasonably well-qualified physician under the same circumstances be concerned about hypoglycemia?
Q. Tell us why not.
A. Well, if you look at his blood sugars at the admission to Ingalls which immediately preceded his admission to Imperial, all - every reading he had with the exception of January 24, the day which he had the colonoscopy where he was not able to eat, he never had one normal blood sugar reading, and they were checking his blood sugar four times a day. Every reading he ever had was above normal, was abnormally high.
So there was no concern whatsoever for hypoglycemia. He not only was never hypoglycemic, which is a low blood sugar, he was never u-glycemic which is a normal blood sugar. He was always high, without exception. T” only exception being the y that I mentioned was the 24th when he underwent the colonoscopy.
Q. Doctor, do you have an opinion based upon a reasonable degree of medical certainty as to whether Dr. Azaran's failure to order insulin for Mr. Carter proximately caused him any injury?
MR. POWER: Objection as to time frame.
THE COURT: Overruled.
THE WITNESS: Yes. BY MR. SHAPIRO:
Q. And what is your opinion?
A. My opinion that the complications that necessitated his admission to Ingalls on February 20 were a direct consequence of his not receiving insulin which resulted in exceptionally high levels of blood sugar.
Q. So did - did the failure to order insulin proximally cause any injury?
Q. Can you tell us what injuries - injury or injuries were caused?
A. The infections, both the pneumonia, the left pneumonia, the infection of the urinary tract, the urosepsis, cl-' rly secondary to the uncor oiled high blood sugars.
Q. Okay. Can you explain the basis of that opinion.
A. There are multi-factorial. But very simply, we ward off infection with our own immunity, our own immune system, much of which is - is on the basis of our white blood cells. Our white cells fight infection. And they do that by getting to the area where the infection is, and this is called migration. Well, look upon someone who has a blood sugar of 2, 3, 4, 600 which is what his blood sugar was the day he was transferred to Ingalls. Look upon this - this body with a blood sugar of 4, 5, 600 as a sea of molasses. These white cells -
MR. POWER: Objection, your Honor, 213.
THE COURT: Overruled.
THE WITNESS: These white cells virtually have to swim in a sea of molasses to get to where they're needed, in this case the urinary tract and the lung, the left lobe of the lung. They're unable to get to the site of infection. Once they get to the site of infection through the sea of molasses, they then have to compete with this very high blood sugar for oxygen because a hig.' ‘blood sugar has to be meta lized by the cell, by the white blood cell. And the same oxygen is needed to kill the bacteria once the white cell engulfs that bacteria. It has to kill that bacteria. It cannot kill the bacteria because it's competing for oxygen with the glucose to - for the oxidated burst that's necessary to kill that bacteria.
So that's basic - the basics for why a high blood sugar makes diabetic patients very prone to infection. They can't get the white cells there. And when the white cells do get there, they're unable to kill the bacteria because they don't have the necessary oxygen to metabolize.
BY MR. SHAPIRO:
Q. Were there any other injuries caused by the high blood sugar?
A. Well, the dehydration that results when blood sugar is high, the body tries to get rid of it by having it go through the urinary tract and it takes an obligate amount, large amount of water to get the sugar out via the urinary tract. And as a result, the individual becomes dehydrated. Well, upon admission to Ingalls, it was so severely dehydrated, they started a central line to replenish his lost fluids. In the process they caused the pn? lothorax. The needle whic they were trying to give him the fluids, the necessary fluids, punctured the lungs and he experienced a pneumothorax, which of course is a life threatening situation.
Q. And was that pneumothorax attended to in some fashion in the hospital?
A. Yes, it was.
Q. In what way?
A. Well, they inserted the chest tube which again is tantamount to inserting a knife into the - into the lung.
MR. POWER: Objection, Judge, 213.
THE COURT: Overruled.
THE WITNESS: Which is tantamount to injecting a knife, inserting a knife into the chest cavity and inserting a tube to suck out all the oxygen, all the air that was introduced when the pneumothorax was caused.
BY MR. SHAPIRO:
Q. And do you recall how long the chest tube remained in the patient?
A. I believe until March 9.
Q. And during that period of time, would the staff have to check the placement and positioning of the chest tube?
A. Absc itely.
Q. In addition to the urinary tract infection, the pneumonia - you mentioned a left lobe pneumonia. The patient later on had a right lobe pneumonia?
Q. In your opinion, was that caused by this injury?
A. Yes. That was also a result of the uncontrolled high blood sugar. It takes the white cells days to weeks to recover from that - that high blood sugar insult. It - they don't become functional overnight just because a blood sugar is corrected. And if I'm not mistaken, it took three or four days after admission to Ingalls for the blood sugars to get reasonably well controlled. But even after the blood sugar becomes well controlled, it still takes days to weeks for the organism, for the cells, to function normally. So the - the pneumonia that was diagnosed after admission to Ingalls, the right lobe pneumonia, clearly a result of the previously uncontrolled diabetes.
Q. Was there any problem caused by the high blood sugar with respect to the decubitus ulcers?
A. Well, the bacteria, and it's a mixed bag of bacteria that 11 cause decubiti, bed sc s, they need - they need nutrients. Well, it turns out the high blood sugar is the best nutrients for the bacteria that you can - that you canimagine. And it really provides a perfect environment for the growth of these bacteria so they can lay down the roots and form the decubitus.
In addition, the aforementioned abnormalities in the white blood cells again decreases the host's ability to ward off this growth of bacteria because they're unable to function properly to get to the site of the infection, the bed sore, and to be able to - to kill the bacteria that are setting up house in the bed sores. So, again, it's multi-factorial.
Q. Now, did Mr. Carter already have decubitus ulcers before he went into the nursing home?
A. Yes, he did. He did have very severe decubiti ulcer, but he developed new ones during his stay at the Imperial.
Q. Where did he develop a new decubitus?
A. On the left hip, and this was attended to by Dr. Azaran on February 16 where he wrote extensive orders to treat this newly developed bed sore.
In your opinion, was that new bed sore caused or aggravated the high blood sugar?
Q. And with respect to the other decubitus ulcers that you talked about, when he was at Imperial, were those decubitus ulcers infected?
Q. When did they first make a diagnosis that the decubitus ulcers were infected?
A. Well, if I'm not mistaken, they had that diagnosis upon admission to the Imperial. The already established bed sores were already diagnosed upon his admission to Imperial. They did not get any better. They didn't have a chance to improve despite adequate nursing care to the decubiti wound care because of the milieu of the high blood sugar, because of the uncontrolled high blood sugar.
Q. While he was at Ingalls in the admission of February 20, did they actually grow any organisms out of cultures of those ulcers?
A. Yes. I believe again a mixed group of organisms.
Q. In your opinion, did the high blood sugar cause or aggravate the growth of those bacteria?
A. Yes. CPK which clearly indicates a heart source of the muscle damage, it was not a dramatic elevation.
Q. Can you explain what you mean when you say that the CPK-MB levels indicated a heart source of the enzyme elevation.
A. Well, as you know, we're mostly muscle, muscle and water. And CPK, an enzyme, CPK comes from muscle tissue. Heart of course is a unique muscle called a myocardium. And the MB band distinguishes the CPK coming from regular muscle from heart muscle. So it's very specific to myocardial, to the heart muscle. So when you have a CPK that's elevated and shows a positive MB band, an elevation in the MB band, that says that CPK is coming from the heart. And that's released only when the heart muscle is damaged, is destroyed because of lack of blood.
Q. And that was the case here?
Q. And was any of that muscle damage or damage to the heart permanent?
A. Oh, yes, muscle - heart muscle does not regenerate itself.
Q. Are you able to say whether or not there was any effect on cardiac function thereafter?
A. With every loss of even a singl heart muscle fiber, there's going to be some loss in heart function. It may not be measurable if only a few cells are destroyed or it can be devastating. And you can go from someone who has normal cardiac function after a severe MI where they are basically a walking cripple and that they get short of breath with each step because the function of the heart is so severely damage because a large portion of the muscle was destroyed.
Q. What was the effect on function with Mr. Carter?
A. I really could not answer that with any certainty.
Q. Why is that?
A. Well, one, he was bedridden, so he never was fully ambulatory to really determine how much of a stress on the heart it was. He basically could not stress his heart as with normal activity would have done. And I don't know the status of his heart prior to the - that non-Q wave infarct that he had probably around February 20.
Q. Doctor, with respect to the patient's high blood sugar and lack of insulin, did that cause any change in the patient's mentation or his responsiveness?
A. Yes,it did. And even though i was somewhat difficult to evaluate because he was not fully ambulatory, looking at the nursing records from the Ingalls admission prior to his Imperial admission on, I believe, the 28th and 29th of January, looking at the nursing - reading the nursing notes, you see a man who's reasonably comfortable, saying good morning as the nurses come in to greet him and eating very well, especially when he's fed by his wife. He's eating quite well.
Q. And then what happens?
A. Well, he's transferred to Imperial. Again, he's not given any insulin whatsoever and he gradually deteriorates. He becomes more obtunded.
Q. What does obtunded mean?
A. Less alert. And, again, it's a gradation. Mild obtundation, maybe you're slow to respond to say hello. Severe obtundation is coma. So there's a gradual increase in his obtundation and his refusal to eat. He went from someone who was eating well, especially when fed by his wife to someone who, toward the end of the Imperial admission, refuses to eat.
Q. And how about his level of consciousness by the time he gets to Ingalls on February 20?
A. He' almost in full coma. He's Completely obtunded.
Q. Now, Doctor, we've heard some terms here in the course of this case. The hospital discharge summary refers to diabetic ketoacidosis. Can you explain what that term is?
A. Well, diabetic ketoacidosis is when there is a severe, severe deficiency of insulin. And there's so little insulin available not only do blood sugars go dangerously high but the fat tissue begins to dissolve itself and becomes the main source of fuel. Again, the glucose is not available to the cells that rely on insulin to get the glucose into it, the muscle, the fat and liver, so the only source of fuel for the muscle and the fat becomes the fat cells digesting themselves. And these - these compounds called ketone bodies, hydroxybutyrate acetoacetate are acids. But they become the key source of fuel for this - cells that can no longer utilize the glucose even though it's quite high. And as a result, they develop an acidosis, and it's ketoacidosis because it's acetoacetate, hydroxybutyrate are ketones or keto acids. So that's ketoacidosis, and of course it is an emergency situation, has about, today even in the best of hands, about a 10 percent mortality rate.
Q. Now, Doctor, were there ketones recovered in Mr. Carter's bloods when they looked to see if he had these ketones?
A. Yes, there were.
Q. Now, was - was there an acid condition - well, let me ask you this question: In your opinion, did Mr. Carter really have a full-fledged diabetic ketoacidosis?
A. No. No.
MR. POWER: Objection. Move to strike all his testimony with respect to ketoacidosis as being irrelevant.
THE COURT: Overruled.
MR. POWER: Thank-you. BY MR. SHAPIRO:
Q. Can you explain to us your opinion as to what a more appropriate diagnosis would have been for Mr. Carter.
A. Well, I feel a more appropriate diagnosis was hyperosmolar nonketotic coma. And this is a condition that he much more closely fits. He did have a high level of ketones, but I think that was from starvation. That was clearly documented in the nursing records at. Imperial. And again, when you are denie glucose as a source of fuel, you turn to fat, you turn to ketones. And that's why people who undergo a strict starvation diet develop ketosis. And I think Mr. Carter's ketosis was more from starvation from not eating the last several days at the Imperial rather than the ketoacidosis.
What he did have metabolically in addition to the starvation ketosis was a hyperosmolar nonketotic state. And what that is, is when the blood sugars go so dangerously high, and again his blood sugar when finally measured at the Imperial went off the meter, it was tripple H which is triple high, they become so dehydrated, what's called a hyperosmolar state, and even though they've got very little, in his case, a low elevation of ketones or no ketones, it's called nonketotic because there is still not destroying fat as much as you would in a ketoacidotic condition. So he more closely - well, not more closely. He perfectly fit into the diagnosis of hyperosmolar nonketotic coma.
Q. Was it a hyperosmolar nonketotic hyperglycemic coma?
A. Yes. Yes.
Q. Okay. What does the hypogly.....
Q. Hyperglycemic add to the diagnosis?
A. Well, that's why they become hyperosmolar. As I stated earlier, the high blood sugar takes water out of the body. It's osmotically active, and you just can't eliminate glucose molecules by themselves. They have to be dissolved in water. The higher the glucose levels, the more water it takes with it out the urinary tract, so it becomes - they lose so much water, that that's why they become hyperosmolar. It's like being on the desert and having no access to water. You become so dehydrated that your blood would become very hyperosmolar as in Mr. Carter's. Not because he was on a desert but rather because he was losing so much water which was not being replenished.
Q. Is there any significant practical difference whether you call his condition diabetic ketoacidosis as the doctors did at Ingalls or a hyperosmolar or hyperglycemic coma as you have stated?
A. Well, there actually is. The prognosis is far more guarded with hyperosmolar nonketotic coma than it is with diabetic ketoacidosis.
Q. What do you mean by a guarded diagnosis?
MR. POWER: Well, objection, Judge, 213.
THE COURT Overruled.
THE WITNESS: 40 to 50 percent mortality rate with hyperosmolar hyperglycemic nonketotic coma. Much higher mortality rate than the diabetic ketoacidosis. Now, in all fairness to the medical profession, not that we're doing a lousy job on the hyperosmolar hyperglycemic state than we are with the diabetic ketoacidosis, generally speaking, those who have a hyperosmolar state are a much older group. Those who have the diabetic ketoacidosis tend to be the juvenile diabetic patients, much younger, overall much healthier population. But the hyperosmolar, hyperglycemic nonketotic state has a 40 to 50 percent mortality acutely.
BY MR. SHAPIRO:
Q. Right. Of course, in this case the condition was corrected and did not become a mortal case, correct?
A. Correct. But, again, had much morbidity as a result, the heart attack, the infections, the pneumothorax.
Q. By morbidity you mean what?
A. Conditions caused by it that were not mortal. We always refer to mortality and morbidity. Mortality death, morbidity disease, illness.
Q. Doc in your opinion, did an of the conditions which you've testified to which were caused or aggravated by the failure to give this patient insulin cause Mr. Carter any pain or suffering?
A. I would - I would say yes because -
Q. What is the basis of your opinion?
A. Well, this was a man that did experience pain. And even though it was not often documented, on the Ingalls admission February 23 when he was transferred from the intensive care unit, there's a note in the nursing progress notes that he withdraws from pain, so it was -
MR. POWER: Objection, Judge. May I be heard?
THE COURT: Okay. Have a side-bar.
MR. POWER: Your Honor, we dealt with this very issue in the motions in limine which you denied. You said at least there's enough to go to a jury on whether he could offer opinions on pain and suffering. And my brief included, I'm trying to find this specific quote, that he admitted that there was no evidence in the chart that this man suffered pain. He specifically admitted that and I will find it if you will just give me another minute. This is clearly a new opinion as being offered directly cont; lictory to 213 deposition stimony and my motion in limine which he granted barring him from offering any new opinions.
THE COURT: Response?
MR. SHAPIRO: Yeah. I can just respond. First of all, the 213 interrogatory answers said that he caused pain. I'm just in briefly looking at the deposition, page 71 there's a question about pain.
THE COURT: Well, he gave an opinion that it caused pain. Counsel's objection was to testifying that there was evidence in the records with regard to the pain.
MR. SHAPIRO: The ability to - to experience pain.
THE COURT: Counsel's objection is that previously he had disclosed that there was nothing in the records regarding the ability to perceive pain.
MR. SHAPIRO: No. The only question on that was on page 70. There was a question about with respect to the left lower lobe pneumonia, that resolved during the admission, correct? Answer: Yes. There's no evidence based on the chart that caused any pain to the patient, correct?
Okay. But at other points in the deposition he said things did cause pain. Now he's just talking generally about - about pain.
MR. POWR Judge, I have no objecti if he generally talks about pain because you've denied my motion on that. But as to specific references in the chart where it shows that this man was causing pain or suffering from pain, he specifically admitted there weren't any that he could find.
THE COURT: Counsel just said it was with regard to left lobe pneumonia. Now, is there anything with regard to other symptomology and he said there was nothing in the records.
MR. SHAPIRO: I don't believe there's any global question on pain.
MR. POWER: Well, let me point you to page 149, 150 and 151. I dealt with the issue at Imperial on pain back in the 70s. But if we're just going to deal with Ingalls, Mr. Geiser, who was in the case at that time, specifically on page 61, or excuse me, 151, starting at line 5: Do you have any evidence that you can point me to in the Ingalls records that demonstrates to you that this patient was showing consciousness of pain?
Answer: I already answered this. And then question: We did it for the nursing home now we're doing it for Ingalls.
Line 14, witness: No, there was no evidence to say that he was actually experiencing • in that he was relating somehow to the nurses.
Question: At the hospital? Answer: At the hospital.
Question: Or in any way demonstrating it to the nurses, correct?
He's going to say the man withdrew in pain, that is a demonstration to the nurse that he is in pain. THE COURT: Or somebody who reported it. MR. POWER: Well, it's either a doctor or nurse. And theres no evidence this - this man specifically said there was no evidence in the chart to that specific question, and now he's offering a new opinion. THE COURT: What about that?
MR. SHAPIRO: Well, I think that is something that the nurses made a comment on, not that the patient communicated any pain to the nurses. And I point out on page 154 we asked him generally, in your opinion, based upon a reasonable degree of medical certainty, likely the conditions Mr. Carter had while he was in Ingalls would cause him pain. He goes through - MR. POWER: I agree. THE COURT: The questions that were - where the objection was? the records indicated pa. Then you pointed out there was one thing indicating specifically with the pneumonia. Counsel points out questions from Mr. Geiser, who previously was in the case when the nursing home was in the case, with regard to a witness saying there's nothing in the Ingalls records to show he was experiencing pain.
MR. POWER: Or demonstrating.
THE COURT: Or demonstrating pain.
MR. POWER: Because he was not - the only way he would be able to tell anybody was by showing it or demonstrating it. He can't speak.
THE COURT: Something in the records and wasnt disclosed, the objection will be sustained. Jury will be instructed to disregard the witness's last answer.
MR. POWER: Your Honor, before we start cross, I would ask that he be - instruct his witness because I intend to ask him that exact same question again. It'd mean that admission. If he says no, there is some, that will violate 213 again. I'm entitled to rely on the answers for my cross. I am not - I shouldn't be at risk for getting “I disagree,” “I disagree looking like Im then hiding things on objections under 213. His witness should be instructed between direct and cross that he has't answer no, there isn't anthing, because that's exactly what he said here, and he's bound to follow that on the stand on my cross.
MR. SHAPIRO: I disagree with that. This is - first of all, if you ask the man a question, you're opening the door at that point. You know, you were asking the witness about voluminous medical records -
THE COURT: The witness should have been instructed prior to his testimony that he was bound by those opinions and the basis for the opinions that previously had been disclosed.
MR. POWER: I would ask that we take a break and tell him now don't go beyond the dep.
THE COURT: I'm not going to do that.
MR. POWER: Okay. May I at least have that instruction between direct and cross on this very issue because, Judge, this is the issue in the case. And I should be entitled to get that answer out of him without having to have another side-bar and deal with this issue again or have him say again, yes, now I see there is evidence. Because quite honestly this is surprise. It violates 213.
MR. SHAPIRO: Wait a minute.
MR. POWER: This is trial by ambush through his expert.
MR. SHAPIRO: Excuse me. It is not surprising -
THE COURT: Yes, it is surprising because it was not disclosed. Anything that is not disclosed is surprise.
MR. SHAPIRO: I understand that point of view. But counsel has seen the records. It's right there. It is the fact.
THE COURT: It very well may be, he may have seen something in the records, but he is entitled to rely on what has been disclosed from the 213 interrogatories and from the witness's discovery deposition and any supplements that have been put.
MR. SHAPIRO: Right. I understand that. All I'm saying is, purposes of the record, the facts are there in the hospital records. If it doesn't come out with this witness, it will probably come out with another witness that those are what the records show.
THE COURT: Regardless of what the records may show, counsel is entitled to rely on what the witness has previously disclosed, and we will be taking a recess for a couple of minutes between the direct and cross-examination, and I suggest that perhaps the two of you together approach the witness just to make sure that what - if the fitness is told that he ca only - he can't go beyond what he has previously disclosed in his opinions and bases therefore.
MR. SHAPIRO: I understand fully the basis for the court's ruling on the direct examination. However, it seems to me if counsel starts opening the door by asking questions about the medical records and points out parts of the medical records and looks at the medical records, that he'd then be opening the door to that.
MR. POWER: If that were true, 213 would be gutted with respect to cross-examining an expert who says well, I didn't see anything and later finds something and the plaintiff doesn't disclose it to us. That's the very reason why 220 changed to 213 so we didn't have this type of trial where things were discovered at the time of trial.
THE COURT: With regard to cross-examination, unless the witness is specifically asked with regard to any line in the record where it says that the patient did something, that might open the door, but other than that
MR. POWER: Judge, I am going to ask him whether - because he made an opinion as - at the time of admission about consciousness. I will deal with the record and whf it shows as to that but n pain.
THE COURT: I'm talking about with regard to -
MR. POWER: Pain.
THE COURT: - at what - when we're specifically objecting to that, reference it.
MR. POWER: Fair enough.
THE COURT: If you go into that particular with a question about that, then you open the door for examination.
MR. POWER: Absolutely. Absolutely.
THE COURT: Can we go back out there?
MR. SHAPIRO: Judge, maybe just so we don't have the problem again, maybe we should instruct the witness now.
MR. POWER: If we're going to take a break, I would prefer that it be done now because otherwise I'm going to be - every five minutes, because he's done it so far, I've been objecting under 213, he has added many, many bases.Judge, I -
THE COURT: Some of them weren't bases. Some were explaining the bases. One you objected to an anecdote he was giving to help the jury understand what he was referring to.
MR. POWER: Your Honor, with all due respect, he never mention? mortality and morbidity i reases anywhere in his deposition period. To permit him to talk to the jury about increased chance of death when, number one, it's not an issue in this case, number two, he never mentioned -
THE COURT: And he told them it wasn't.
MR. POWER: That's my very point.
THE COURT: In the particular case. Maybe it's layman's terminology, maybe morbidity wasn't the term he used.
You want to add - have the witness step back here. Liz, will you ask the deputy to have the witness come back here for a few minutes.
MR. POWER: Judge, I think you just ruled he can't go through the pain in detail -
MR. SHAPIRO: Wait a minute. He said he couldn't rely on that one comment.
THE COURT: I don't know what the question is. I don't know what the total has been disclosed. The witness did have an opinion that he is suffering pain.
MR. POWER: And that's already been elicited.
MR. SHAPIRO: No, it isn't.
THE COURT: Well, I don't know whether the question is there.
(Dr. Fine entere the room.)
THE COURT: Dr. Fine, you may have certain opinions that you have with regard to what's contained in the records. However, you are limited as to what has been disclosed in discovery either by way of your discovery deposition or by way of any 213 interrogatories which were disclosures by counsel of what they intend your testimony to be regarding facts and opinions. So even if you do have other opinions, you cannot express those. You are limited as to what has been disclosed, in order to prevent surprise to counsel.
DR. FINE: Okay. I had not disclosed that at the deposition?
MR. SHAPIRO: Just to be clear, the opinion that there was a notation about pain on February 23, that notation -
THE COURT: The demonstration of pain.
MR. POWER: Any notation in the record regarding demonstration of pain during the entire Ingalls admission, that's what he - that's what he said, I did not find any.
MR. SHAPIRO: His opinion was there pain. And you said in your deposition that there was nothing in the record that documented.
DR. FINE: I've reviewed the records ince the deposition in preparation for the trial.
THE COURT: And that very well may be, but you're limited to what has previously been disclosed.
DR. FINE: Okay. Okay.
THE COURT: Are we ready?
MR. SHAPIRO: Yes.
(Whereupon, the following proceedings were held in open court.)
THE COURT: Ladies and gentlemen, the objection is sustained. The witness's last answer will be stricken. You will disregard the witness's last answer. BY MR. SHAPIRO:
Q. Dr. Fine, can you explain to us what is the basis of your opinion that the conditions caused or aggravated by the hyperosmolar, hyperglycemic state that you referred to, to the lack of insulin caused the patient?
A. Well, there's a lot of attendant discomfort with being dehydrated. And the perception of thirst which you're unable to quench because you're not ambulatory, you don't have access to water at will, is going to cause a certain level of discomfort. The infection that -esulted from the high blc sugar is a very uncomfortable state. When you get the flu, we call malaise, those nonspecific symptoms that we experience, those, very uncomfortable symptoms, muscle aches, just perception of being ill, is what Mr. Carter almost certainly experienced when he had really overwhelming infection.
Of course, the pain attendant to the insertion of the chest tube because of the dehydration that resulted from the high blood sugar was associated with a significant amount of pain, the pneumothorax, severe degree of discomfort from being unable to get the necessary oxygen, the air deprivation that resulted from the pneumothorax, so, yes, because the hyperglycemia, Mr. Carter experienced a certain degree of discomfort and pain.
Q. Doctor, how long did Mr. Carter remain in the. hospital - well, let me ask you this question: Was Mr. Carter able to express his pain to the nursing staff?
MR. POWER: Objection 213.
THE COURT: Overruled as to whether he was able to. BY MR. SHAPIRO:
Q. How Tig did Mr. Carter remain the hospital for the February 20, 1995 admission?
A. I believe he was not discharged until March. Can I look at the record?
Q. Yes. By the way, one other question. Was Mr. Carter verbal while he was in the hospital?
A. Which hospitalization?
Q. I'm sorry. Let's get that straight. When Mr. Carter was in the hospital from February 20 to March 17, he wasn't able to verbally communicate to the nursing staff, was he?
A. No, he was not. He was verbal in the prior Ingalls.
Q. Right. In the prior.
A. Prior going to the Imperial.
Q. When he was in Ingalls February 20, he wasn't able to verbally communicate any complaints of pain, correct?
Q. Now, with respect to the hospital admission of February 20 to March 17, 1995, in your opinion, was that hospital admission a proximate result of Dr. Azaran's failure to give insulin orders for Mr. Carter?
Q. And what is the basis of that opinion?
A. All the morbid conditions that necessitated the hospitalization, as already discussed, were direct consequence of the uncontrolled hyperglycemia which was a direct consequence of the failure to give insulin.
Q. Doctor, showing you what has previously been marked and introduced into evidence as Plaintiff's Exhibit No. 3, which is the hospital bill from Ingalls Hospital, in your opinion, with the exception of the charges for Dilantin administration and ferrous sulfate, were those charges all related to the failure to give this patient insulin?
Q. And, Doctor, the Dilantin, ferrous sulfate charges are 1,063.70, the total hospital bill is 55,172. So if you subtract that, would the total hospital bill, in your opinion' related to the insulin - a failure to give this patient insulin be the figure of 54,108.70?
Q. Very quickly, Doctor, showing you what we've marked as Plaintiff's Exhibit No. 17 for identification purposes. I'm going to hand you an article called the Diabetes Control and Complications Trial Study, Implications ‘: the Diabetic Foot from t Journal of Foot and Ankle Surgery, volume 33, No. 6, 1994 by Dr. Ralph DeFranzo and Charles Reisner, M.D. and showing you that article, you've seen that article before, correct?
Q. You've read that article?
Q. Okay. In your opinion, is that an authoritative article on the subject of diabetes as it relates to infection?
A. I know both the authors very well. Can I still answer that?
A. Yes, it's very authoritative.
Q. Now, before I turn you over to Mr. Power for cross-examination, was stated to the jury by Mr. Power on his opening statement that you and I know each other because our daughters play together. Was that accurate?
A. Well, they're both 24, and I don't think they have ever played together. I hope not.
Q. Our daughters do know each other, though, right?
A. Yes. They went to, I believe, grade school but not high school together. No, they went to high school together.
Q. They did go to high school. And you and I know each other through our daughters?
Q. And you said in your deposition, I believe, that we were friends but not social friends. Can you just describe our relationship to the jury.
A. We met through our daughters. I mean, we're - Donald was a very personable, very nice guy. That's pretty much about the extent of it. I think we went out to dinner once or twice. We happened to fortuitously go to the same vacation spot once and went out to dinner. Had a great time. Never called us back.
Q. But actually I did call you back -
A. I didn't return the call?
Q. At one time to ask you if you would be interested in testifying in this case which involved your area of expertise, correct?
Q. And I also asked you to testify once before in a case that involved a young lady with a thyroid problem?
A. Correct. But she was my patient. I was her physician. So it was more for her than for you that I testified.
Q. The fact that we know each other and went out to dinner once, has that affected in any way, shape or form your testimony -
Q. - here?
MR. POWER: Objection, Judge.
THE COURT: Overruled. BY MR. SHAPIRO:
Q. If you and I had never met before, I just got your name out of the clear blue sky, would your testimony be the same?
A. Yes, it would be the same.
Q. Doctor, in coming here to testify, you've had to take time away from your usual professional activities, correct?
Q. And you've also taken time away from your usual professional activities in reviewing all the files and materials?
Q. I tc it, you've spent a fair ount of time reviewing all the depositions that you mentioned and medical records?
A. Yes. And you will get my bill.
Q. And what - tell me what - what you charge and why you charge what you charge.
A. Well, I charge $350 an hour, and I charge $3,000 for the day.
Q. And tell me what is the basis of those fees?
A. Well, those are actually a fraction of the fees I get for speaking, for lecturing. And look upon it as time away from other activities that would actually be more productive financially because I'm not a medical expert witness. I'm not a professional witness.
Q. Okay. When you say you're not - I mean, have you ever done this type of work other than when you testified as a treating physician in the other thyroid case we talked about and this case, have you testified in court before?
A. No, never.
Q. Does the fact that you are being paid for your time, does that affect or change your testimony in any way?
A. Abs itely not.
MR. SHAPIRO: That's all I have. Thank-you.
THE COURT: Ladies and gentlemen, we'll take a recess for a couple of minutes before cross-examination.
(A short break was taken.) (Whereupon, the following proceedings were held in open court.)
THE COURT: Counsel, ready for cross-examination? MR. POWER: Yes, your Honor. Thank-you.