in the circuit court for montgomery county,...
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DEPOSITION SERVICES, INC.
12321 Middlebrook Road, Suite 210
Germantown, Maryland 20874
(301) 881-3344
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
------------------------------X
:
KELLY HYDOSKI, ET AL., :
:
Plaintiffs, :
:
v. : Civil No. 438808
:
DAVID WEI HWANG, ET AL., :
:
:
Defendants. :
:
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TESTIMONY OF JOHN WALTER SCHWIEGER
Rockville, Maryland January 29, 2019
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
------------------------------X
:
KELLY HYDOSKI, ET AL., :
:
Plaintiffs, :
:
v. : Civil No. 438808
:
DAVID WEI HWANG, ET AL., :
:
:
Defendants. :
:
------------------------------X
Rockville, Maryland
January 29, 2019
WHEREUPON, the proceedings in the above-entitled
matter commenced
BEFORE: THE HONORABLE CHERYL A. McCALLY, JUDGE
APPEARANCES:
FOR THE PLAINTIFFS:
STUART N. HERSCHFELD, Esq.
Brault Graham, LLC
101 South Washington Street
Rockville, Maryland 20850
FOR THE DEFENDANTS:
BYRON J. MITCHELL, Esq.
KARI E. JACKSON, Esq.
The Mitchell Law Group, PLLC
221 South Alfred Street, 1st floor
Alexandria, Virginia 22314
I N D E X
WITNESSES DIRECT CROSS REDIRECT RECROSS
For the Plaintiffs:
John Walter
Schweiger 4 119 157 --
For the Defendant:
(None)
EXHIBITS MARKED RECEIVED
For the Plaintiffs:
Exhibit No. 8 -- 23
For the Defendant:
(None)
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P R O C E E D I N G S
(Discussion off the record.)
THE COURT: All right. Brian, do you want to swear
the witness?
THE CLERK: Yes, ma'am.
JOHN WALTER SCHWEIGER
called as a witness on behalf of the plaintiffs, having been
first duly sworn, was examined and testified as follows:
THE CLERK: Thank you. You may be seated.
THE COURT: Good morning.
THE WITNESS: Thank you.
THE COURT: You may have a seat, doctor.
THE WITNESS: Thank you, Your Honor.
THE COURT: Yes.
MR. HERSCHFELD: May I proceed?
THE COURT: Yes, sir.
MR. HERSCHFELD: Thank you.
DIRECT EXAMINATION
BY MR. HERSCHFELD:
Q Doctor, for the jury, again, your full name, please?
A Yes, My full name is John Walter Schweiger, S-C-H-W-
E-I-G-E-R, MD.
Q And your professional address?
A 1 Tampa General Circle, Suite A327, Tampa, Florida
33606.
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Q And you said doctor, you are a physician?
A Yes, I'm a medical doctor, and a physician that takes
care of patients virtually everyday that I'm at the hospital.
Q And do you have a specialty or specialties in
medicine?
A Yes. I have two primary specialties. I'm a board
certified anesthesiologist who provides anesthesia services
both in the operating room, and in other areas of the hospital,
such as labor, and delivery, and interventional radiology. And
I'm also Director of Critical Care Medicine at Tampa General
Hospital, which is the major teaching facility for the medical
school in Tampa, University of South Florida where I oversee
the critical care in both the surgical and the medical
intensive care units.
Q You mentioned that you're board certified. You're
the first expert to testify in this court. Could you tell the
jury a little bit what is board certification, and how does
that come about, and what did you have to do?
A Board certification is the most rigorous process for
a medical doctor to undergo to get acknowledged ty their
subspecialty, or primary board that they're competent. It
requires, certainly, graduation from medical school, then the
completion of a residency that's approved by the national
certifying organization.
So, for me, I had to do an internal medicine year,
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then a three-year anesthesia residency, and then a surgical
anesthesia critical care fellowship. Then it requires passing
the written board examination, and then, finally, nine months
to a year later, you fly to a different city, and you undergo
an oral examination by professors who do not know you; they're
from other medical schools that then provide an examination.
If you pass both the written and the oral examination, you are
then board certified.
Q Do you have a professional resume, a curriculum
vitae?
A I do, yes.
THE COURT: This is 8 you said?
MR. HERSCHFELD: 8.
THE COURT: Okay.
MR. HERSCHFELD: May I approach, Your Honor?
THE COURT: Yes, sir.
BY MR. HERSCHFELD:
Q Doctor, I'm showing you what's been marked as
Plaintiff's 8. Can you identify the document, please, for the
record?
A Yes, this is my professional resumed, also known as
curriculum vitae, which basically is my resume, including my
medical education, my professional experienced, my awards, my
lectures, my book chapters, any articles that I've written; I
believe it's currently 43 pages.
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Q And, doctor, we're going to go through some of these
points with the jury. You've highlighted some of them, but
we're going to go into a little bit more detail. Can you tell
the jury where you went to medical school, and when you
graduated?
A Yes. I went to Rutgers Medical School, also known as
the University of Medicine and Dentistry of New Jersey. I
graduated in May of 1989.
Q And then you talked just a moment ago about training
and fellowship. Can you explain where you did that training
and fellowship in your (unintelligible)?
A Yes, sir. After completion of my medical school, I
then did my intern year in internal medicine at Cooper Hospital
University Medical Center, which is in Camden, New Jersey.
It's the major southern facility for Rutgers Medical School for
teaching.
After I successfully completed that year, I then went
to Temple University Hospital in North Philadelphia, where I
did a three-year anesthesiology residency. My senior year, I
was voted the chief resident anesthesia overseeing the other 39
residents in terms of both scheduling and educational programs.
And, after graduating the anesthesia residency, I
then stayed at Temple, and did a surgical anesthesia critical
care fellowship jointly sponsored by the departments of
anesthesiology and cardiothoracic surgery.
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Q Do you currently have any faculty appointments?
A I do, yes. After I left Temple, in, it was 1994, I
was already a clinical instructor in anesthesiology and
critical care. I took a full-time faculty position at the
University of South Florida in Tampa, where I was assistant
professor from 1994 to 1999. I was unanimously promoted to
associate professor, and director of the Critical Care Medicine
Fellowship in 1999.
I then left the full-time employment of University of
South Florida in 2004, but continued teaching there as an
associate professor. And, in 2016, I was unanimously promoted
to full professor in the departments of anesthesia, internal
medicine, and surgery across all three specialties.
Q Have you received honors and awards throughout your
professional career?
A I have, yes, sir.
Q And among them listed on your curriculum vitae is
being identified as a part of America's Best Doctors?
A That's correct.
Q Have you received certifications beyond that of
anesthesiology and critical care?
A Yes. I, I received what's known as the Prestigious
Fellowship from the American College of Chest Physicians where
I'm a fellow since 2001. I'm fully certified in both basic and
advanced cardiac life support by the American Heart
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Associations. Certified by the American College of Surgeons in
advanced trauma life support. And, also, I'm a national and
international instructor for the American Burn Society in
advanced burn life support for critical care.
Q You're licensed to practice?
A Yes. I, I was initially licensed in 1993-94 in
Pennsylvania. And, then, in 1994, in Florida. And, then,
eventually, after having worked in Florida for six or seven
years, I put my Pennsylvania license on inactive status since
it didn't appear I was going back anytime soon.
Q And your CV lists numerous professional societies and
memberships.
A Yes, I'm, I've been a member of the American Medical
Association for 25 years; the American Society of
Anesthesiology; the International Anesthesia Research Society
for which they, they awarded me best teacher in North America
in 2000; also the American Burn Association; and the Society of
Critical Care, as well as other organizations.
Q Have you served on various committees at the
hospitals in which you've practiced?
A Yes. I, over the last 25 years, I have served on
greater than 15 committees, including being the chairman for 10
years of the critical care steering committee; also, the
critical care nurse liaison committee overseeing care of
critically ill patients in the ICU. I was also, for more than
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15 years, the director of trauma anesthesia at Tampa General,
the director of the critical care fellowship, and the director
of critical care medicine program.
Q You mentioned Tampa General, can you tell the ladies
and gentlemen of the jury a little bit about that hospital, how
big it is, and, you know, your involvement there?
A Yes. Tampa General is a 1,000-bed hospital. It's
the largest hospital on the West Coast of Florida. It's the
teaching hospital for the University of South Florida College
of Medicine. So, very much like Johns Hopkins would be for
Johns Hopkins Medical School, or University of Maryland.
We do all trauma level one, meaning the highest
certification for trauma, including we're the only nationally
certified burn center on the West Coast of Florida. We do all
high-risk labor and delivery. We're the largest transplant
center on the West Coast of Florida doing heart, lung, liver,
kidney and pancreas. And we also have both a high-risk
neonatal ICU for premature babies, and do complex
cardiothoracic and vascular surgery.
Q Among the various activities at the hospital, are you
on the infectious disease committee?
A Yes. I'm on the infectious disease committee as the
representative for the intensive care unit. I'm also on two
subcommittees, the infection for central lines, and the
infectionary (phonetic sp.) for the urinary tracts,
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subcommittees from the infectious disease committee.
Q Have you had any positions that you've held at the
American Society of Critical Care Anesthesia?
A Yes. The, that organization is for critical care
anesthesiologists, and I was the associate editor for the
newsletter for four years.
Q Have you been involved in any way with the American
Board of Anesthesiology in terms of testing for board
certification as you described earlier?
A Yes. I was nominated by my chairman to be a written
board writer, meaning that I prepared the written board
questions for the younger doctors to take for the board
examination for both anesthesiology and for the critical care
medicine exam.
Q Have you published in the field of anesthesia and
critical care?
A I have. It's, it's one of the requirements at the
university for promotion, so I've, I believe I've written
somewhere in the order of 17 book chapters in both anesthesia
and critical care; I've written 45 articles both peer-reviewed
and non-peer-reviewed; and I've given over 300 lectures outside
of the hospital university, and then probably another 1,000
inside to medical students and residents.
Q You mentioned peer-reviewed articles. Can you
explain what those are to the jury?
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A Peer-reviewed is the highest level of publication.
That means that after the doctor writes the article, they
submit it to the journal. The editors then turn around and
give it to national experts in that area who review the article
for scientific and medical merit. They then either accept or
give it back requiring revisions. And if it goes through the
process of both the national experts and the editors, only then
does it get published.
Q Can you explain to the jury about your clinical
practice in the field of critical care medicine, as well as
anesthesia?
A So, for the past 15 years, I've divided my practice
50 percent anesthesiology, and 50 percent critical care,
literally taking care of patients, both in the operating room,
and throughout the hospital from when they're admitted to the
emergency room, all the way to sometimes when they go to
rehabilitation, particularly, if I've performed a tracheotomy
in managing their airway.
And, in that practice, I both provide direct care
where I'm the primary doctor, as well as having various
residents with me that I'm supervising. And, then, in the
operating room, we also use certified registered nurse
anesthetists, and student registered nurse anesthetists in
which I would be in the operating room, but supervising several
providers during the delivery of anesthesia.
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Q Doctor, how do you stay current with innovations and
changes in medicine?
A That's a very important concept, because, obviously,
medicine, in general, and anesthesia and critical care is
always advancing the knowledge. So, the way that I keep up-to-
date, number one, I read the monthly publications from the
American Society of Anesthesia, and the International
Anesthesia Research, which publishes a peer-reviewed journal. I
attend the national meetings as often as I can, usually every
year, every other year.
There are also local meetings known as continuing
medical education that are overseen. Those are both in person,
and, then, also over the internet Skype. And, then, there are
also other courses and tutorials that are given locally within
the southeast that I attend to get the CME credits.
Q Are you involved in any way in the teaching of
residents and fellows in the field of critical care and
anesthesia? And, if so, can you explain to what extent, and
how long you've been doing that?
A Yes. So, since my arrival in Tampa, as mentioned,
I've been on the faculty for the first 10 plus years full-time
paid faculty. And the last is clinical faculty, the last 14,
15 years teaching medical students from the second year
pharmacology up through the fourth year, their critical care
and anesthesia rotations; also, residents in various
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subspecialties, obviously, including anesthesia, critical care
medicine; also having internal medicine residents and pulmonary
fellows in the ICU; emergency medicine residents in both the
operating room for intubation, and in the ICU.
And, then, because we have CENTCOM special forces, I
train all special forces medics that rotate through Tampa
General, both in the OR and the ICU.
Q Doctor, if you would, would you define for the jury
your understanding of the term standard of care?
A The standard of care would be defined as what a
reasonably careful anesthesiologist or physician would do under
similar or like circumstances.
Q Doctor, are you familiar with the standard of care
for an anesthesiologist who delivers IV sedation or MAC
anesthesia in 2014?
A Yes, sir, I am.
Q And can you explain to the jury how you're familiar
with the standard at that time?
A In 2014, I was actively practicing anesthesiology,
both at Tampa General and at the Ambulatory Surgery Center in
Tampa where we would be giving IV sedation and MAC anesthesia.
I was also actively training, both the CRNAs and the SRNAs, as
well as various residents rotating in the hospital. And, not
only was I studying and continuing my education, but,
obviously, I was also teaching during that time.
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Q Doctor, are you familiar with the process of
assessing a patient for determining the appropriateness of
anesthesia when undergoing surgery?
A Yes, I am.
Q And how are you so familiar?
A First, the reason why anesthesiology is a specialty
requires the doctors to do an internship is to spend one year
learning how to do assessment. So, that's a basic requirement
of anesthesia.
Secondly, the process of anesthesia is not simply
putting a patient asleep and waking them up, but determining
whether they're medically prepared to undergo the rigors of
anesthesia in surgery. So, it's much like an airline pilot
checking the plane before takeoff. It's incumbent upon the
anesthesiologist to spend a period of time assessing the
patient, and making sure they're optimized.
And, again, in my role both as a clinical provider of
anesthesia, I performed detailed assessments, and, then, also
overseeing providers that are my delegates where I would see
their work, I would be knowledgeable, and then also providing
lectures on the topic.
Q Doctor, are you familiar with the assessment and
delivery of IV anesthesia or MAC anesthesia in patients who
have similar pre-existing conditions as did Delores Cooke in
August 2014?
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A Yes, sir, I am.
Q Can you give the jury a little bit of your background
in terms of your experience with patients having similar-type
conditions?
A Obviously, both during my residency at Temple
University, which was a major teaching facility, and throughout
my experience at Tampa General, and the University of South
Florida, I routinely deal with complex medical patients who
have diabetes, kidney failure, high blood pressure, underlying
heart problems that need to come to the operating room either
electively, or urgently, or even emergently from the emergency
room. And, as part of my responsibility, as a senior
anesthesiologist, would be to provide a (unintelligible) of
assessment, and determine their fitness to undergo anesthesia.
Q And, doctor, are you familiar with the assessment
delivery via the anesthesia or MAC anesthesia for patients
undergoing surgery by a podiatrist, or involving toe
amputation?
A Yes, sir.
Q Can you explain that experience to the jury?
A Over the last 25 years, and, certainly, in 2014, we
had an active diabetes program at the hospital and university.
Many of the diabetic patients do, unfortunately, suffer
ischemia, and infections of their feet and toes. And, as a
responsibility of that, our podiatrists, and, also, our
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orthopedic surgeons are frequently called upon to operate on
the feet, and, and not infrequently to amputate both toes, and,
also, sometimes the mid-foot in order to salvage the lower
extremities. So, I have significant experience in providing
anesthesia for both elective and urgent cases involving
podiatry and orthopedic surgery in diabetics of the foot.
Q And, doctor, are you familiar with the complications
that can and do arise when delivering IV sedation or MAC
anesthesia in patients undergoing surgery like toe amputation?
A Yes, sir, I am.
Q And can you explain that experience?
A For the last 25 years, on the last Friday of the
month, we have a morbidity and mortality conference at the
hospital, and at the university in which all complications are
reviewed and discussed by the anesthesia faculty and providers
so that we can learn and prevent future complications.
Also, I've sat on the peer-review committee, and the
quality assurance committee for Tampa General, in which I'm
asked to independently and collectively, with the committee,
review complications, again, so we can educate the doctors and
nurses on how to avoid future complications, and provide them
guidance.
And, then, also I've been an independent reviewer for
the University of Florida Shands Hospital, and the University
of Miami where they send me cases to review externally to give
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them feedback on their quality and assurance processes.
Q And, doctor, are you familiar with the assessment,
and treatment, and care of patients who suffer respiratory
depression, respiratory arrest, some type of cardiac event,
and/or brain injury in terms of treatment in the ICU or
critical care setting?
A Yes, I am.
Q And can you explain that experience to the jury?
A A common reason why patients are admitted to the
intensive care unit after surgery is that they've encountered
some form of respiratory depression, as a result of the
anesthesia; or surgery; or potentially cardiac arrest; or had
some problem, such as a complication or infection of the lungs
that requires the patient have a breathing tube in their mouth,
and in their windpipe, and, thus, to be attached to a
ventilator.
And, as director of critical care, and as an ICU
physician, I would be responsible for assessing their airway,
their lungs, the ventilator, and then try to ween them off,
often doing bronchoscopy, meaning looking into their lung, and
finding the source of the injury, and, then, hopefully, get
them off the ventilator. If not, I would be performing the
tracheotomy to create a hole in their windpipe so that they
could then be discharged with the tracheotomy in place.
MR. HERSCHFELD: Your Honor, at this time, I would
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offer Dr. Schweiger as an expert in the fields of
anesthesiology and critical care medicine.
THE COURT: I'm sorry. Let me --
MR. HERSCHFELD: Sure. I'll slow down.
THE COURT: No, you're fine. Okay. Anesthesiology.
MR. HERSCHFELD: Yes, and critical care medicine to
offer opinions regarding the standard of care for an
anesthesiologist in 2014, and to, furthermore, offer opinions
regarding the issues of causation, damages, and the cause of
death for Delores Cooke.
MR. MITCHELL: No objection, Your Honor.
THE COURT: Causation, damages, and?
MR. MITCHELL: Cause of death.
MR. HERSCHFELD: Cause of death.
THE COURT: Cause of death. Okay.
And you said no objection?
MR. MITCHELL: No objection.
THE COURT: Okay. So, let me see if I have this
right. Ladies and gentlemen, through instructions later, I
will give you more information with regard to expert witnesses,
but for now -- bear with me for just a moment --
(Discussion off the record.)
THE COURT: All right. I had it right here. I'm
just going to get another copy. I don't want to start ad-
libbing.
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So, ladies and gentlemen, sorry about that, best
plans don't seem to be working today. So, as I indicated, the
doctor is going to be considered as an expert witness, and I
will be giving more information as to how to consider the
testimony of any witness, including experts, but right now,
with regard to an expert, please understand that an expert
witness is a witness who has special training, or experience in
a given field.
And you will be instructed, and I'll tell you now,
you can give expert witness testimony the weight and value you
believe it should have. You're not required to accept any
expert's opinion, and you'll consider an expert's opinion
together with all of the other evidence that collectively
you'll hear throughout the trial, okay?
So, Dr. Schweiger will be considered as an expert
witness in the field of anesthesiology, and critical care
medicine, as well as to render an expert opinion with regard to
the standard of care for anesthesia delivery in 2014, as well
as causation, damages, and cause of death of Ms. Cooke, okay?
And did I get that right?
MR. HERSCHFELD: Yes, Your Honor.
THE COURT: Okay. All right. Thank you. Okay. Go
ahead.
MR. HERSCHFELD: Your Honor, may I remain seated
for --
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THE COURT: Yes, sir.
MR. HERSCHFELD: Thank you, Your Honor.
BY MR. HERSCHFELD:
Q Doctor, in moving forward, what I'm asking for your
opinion in your testimony today, please only offer those
opinions you hold to a reasonable degree of medical
probability. Do you understand that?
A Yes, sir, I understand and agree.
Q Okay. And at my request, were you provided, and did
you review various medical records, and other documents,
including depositions related to this matter?
A Yes, sir, I did carefully review all the materials
sent from your office in this matter.
Q Okay. And could you identify to the jury the
materials that you reviewed?
A Yes, sir. First, I reviewed the entire medical
record of Delores Cooke from Shady Grove Adventist Hospital for
the admission of August 2014, as well as portions of the
medical record from her prior admission on April 2014, also to
Shady Grove Adventist Hospital.
Second, I reviewed the cardiology records from
Cardiovascular Consultants for Ms. Cooke. Those were her heart
doctors who cared for her heart, and did further testing.
Third, I reviewed the records from Nephrology
Associates, which were her kidney doctors responsible for
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overseeing Mrs. Cooke peritoneal dialysis, and her assessment
for a possible kidney translate work-up; of course, she never
did receive the kidney.
Then I received several sworn deposition transcripts
starting with the plaintiff, Kelly Hydoski, who is the daughter
of Ms. Cooke. Secondly, I reviewed the sworn deposition of Dr.
Hwang, the defendant anesthesiologist. Third, I reviewed the
deposition of anesthesiologist, Mr. Emamhosseini, who is the
floor manager, on August 24th, in the operating room at Shady
Grove Adventist Hospital.
Next, I reviewed the deposition of Dr. Moayed, who
has responded to the code blue, or to the code. And then
finally two depositions from the defendant's experts, those
would be Dr. Domson, D-O-M-S-O-N, and Dr. Kelly.
Q And, doctor, maybe just to clarify, Dr. Moayed was
the corporate representative --
A I --
Q -- for the practice --
A -- I apologize. I misspoke. That's my fault.
Q -- as opposed to being present for any --
A That's correct, he was not.
Q -- activity --
A Yes, sir.
Q -- correct?
A You are correct.
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Q Okay.
A I misspoke.
MR. HERSCHFELD: And, also just a housekeeping issue,
Your Honor. At this time, I would move Plaintiff's No. 8, the
curriculum vitae into evidence.
THE COURT: Any objection to 8?
MR. MITCHELL: No, Your Honor. No, Your Honor.
THE COURT: 8's received.
(The document marked for
identification as Plaintiff's
Exhibit No. 8 was received in
evidence.)
MR. HERSCHFELD: Thank you.
BY MR. HERSCHFELD:
Q Doctor, before we get into all the medicine in this
case, let's talk a little bit about some terminology so the
jury can understand the different forms of anesthesia that can
be delivered. I'm just going to give you the terms in lump,
and let you explain them. Please explain, because they're
going to hear about, spinal anesthesia, IV, or MAC anesthesia,
general anesthesia. Can you explain those terms so they have
an understanding when we go forward?
A Yes. So, when a physician talks about anesthesia,
it's really a large umbrella under which there are various
options for a doctor, such as myself or Dr. Hwang to provide
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for the patient. If the patient is having discrete surgery,
let's say on their knee, their ankle, or for childbirth, we can
perform what's known as regional anesthesia of which the two
most common forms are spinal anesthesia or an epidural.
Spinal anesthesia means that the anesthesiologist
sterilely prepares the patient's back, then takes a needle, and
inserts it in the lower part of the spinal canal away from the
spinal cord, much like as if we were doing a lumbar puncture in
the ICU, but, rather than take cerebral spinal fluid out, we
inject a small amount of local anesthetic into the cerebral
spinal fluid, which then rises and bathes the nerve with local
anesthesia numbing those nerves, making the patient then unable
to sense pain in those areas; that's why we call it regional
anesthesia, and, also, would prevent the patient temporarily
from moving until the local anesthesia wears away.
The second phase that we could talk about is IV
sedation. Sometimes we will also use the term monitored
anesthesia care. Very important for someone who is not an
anesthesiologist to understand. This is a spectrum, meaning
kind of like when we have the light dimmer on a light fixture,
you can have a little bit of dimming IV sedation; you can have
moderate dimming where the patient is sleepy, but arousable; or
you could have deep sedation where you're really performing
relatively invasive surgery.
That sedation is usually given through an IV that's
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inserted in the arm, up in one of major vessels, or the leg.
And the anesthesiologist or their CRNA has the opportunity to
either give intermittent doses, for example, every five or ten
minutes we're giving medication to the affect of the patient,
or we can put them on a pump, and have continuous medication go
into the patient for the entire procedure. And, depending on
the requirements of the surgeon, we can them make them more or
less sleepy, and more or less interactive with the environment.
And, then, finally, we have general anesthesia. In
general anesthesia the patient is rendered unconscious, and
often, as a result of that, because the breathing centers sit
on the base of the brain, the patient may lose the ability to
breathe. So, in most forms, although not all, but most forms
of general anesthesia, after we give the medication, the
anesthesiologist will open the mouth, will look in the back of
the throat, and then place a breathing tube around the tongue
through the vocal cords into the windpipe, or put a device that
sits on top of the vocal cords in which the anesthesiologist
can provide oxygen and inhaled anesthetic gases to the patient
to keep them asleep during the operation, and then only when
the surgical team is done would we turn the anesthesia off, and
reverse them.
But, in general anesthesia, again, the patient is
completely unconscious, and often the patient's breathing and
even heart function may be dependent on the anesthesiologist or
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the anesthesia team.
Q Doctor, I'd like to ask you a little bit now to talk
about Ms. Cooke's medical history, again, before we get into
August of 2014. First, if you would, based upon what you
reviewed, can you explain to the jury Ms. Cooke's history with
issues with respect to her diabetes?
A Yes. So, for several years, Ms. Cooke had insulin-
dependent diabetes mellitus, meaning that she had high blood
sugars, and that her pancreas wasn't making enough insulin, so
she had to take insulin.
Also, her doctors noted that the blood sugars on
blood tests, even with the insulin, were higher than we would
have liked them. Those are called hemoglobin A1C. When a
patient like Ms. Cooke has high blood sugars, it affects other
organs, because the blood sugar lines the small blood vessels,
and it can affect organs, such as the heart causing coronary
artery disease, and, in 2003, Ms. Cooke had to have heart
surgery to revascularize her heart, meaning to take blood
vessels from her leg, and sew it into the heart to bypass the
blockages.
And, then, the most common reason in the United
States for kidney failure is diabetes and high blood pressure
where the kidney blood vessels themselves become diseased, and
the body can no longer properly filter the blood, and the
patient needs to go on dialysis. In Mrs. Cooke's case, that
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was peritoneal dialysis, meaning that she would hook herself up
through a catheter in her abdomen and dialyzed herself, as
opposed to some patients who get dialyzed through the blood
vessels of their arm.
And, then, she was being worked up by her kidney
doctors for a possible cadaveric kidney transplant, meaning a
kidney from someone who has recently died would be transplanted
into a patient like Ms. Cooke to try to separate them from the
need for dialysis. Of course, because of the process of the
diabetes of the kidney failure and the heart, she developed
chronic high blood pressure, also known in medicine as
hypertension that required her doctors to provide her with
blood pressure medicine to try to keep the blood pressure under
control.
Q You mentioned hypertension. So, the jury has an
understanding, typically, in an otherwise healthy individual,
what do physicians advise individuals is the range for a good
blood pressure to have?
A So, the American Heart Association, and other
organizations that provide recommendations will tell you that
the upper number, which is known as the systolic blood
pressure, should be between 130 and, I'm sorry, and 110, so,
110 to 130, and the lower number should be 60 to 80, with an
average blood pressure being in an adult 120 over 80, but
knowing that there's some common fluctuations based on diet,
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stress, exercise, and the like, but we want to try to keep the
blood pressure below 130, and the lower number below 80, if
possible. If not, we would start them on outpatient
medications to control blood pressure.
Q So, in Ms. Cooke's case, her blood pressure would
have been greater than 130 over 80 necessitating treatment?
MR. MITCHELL: Objection. It's very leading.
THE COURT: Sustained as to the form of the question.
You can rephrase.
MR. HERSCHFELD: Yes. Thank you, Your Honor.
BY MR. HERSCHFELD:
Q Could you explain what your understanding of Ms.
Cooke's pressure was vis-à-vis this norm that would otherwise
exist in a healthy person?
A In looking at Ms. Cooke's medical records, both those
of her cardiology doctors, as well as the kidney doctors, I
saw, as one example, when she had a Lexiscan of her heart, in
May of 2013, where they were assessing her heart function, that
her blood pressures were between routinely 130 to 140, the
upper number, and the lower number was in the 70 to 80 range.
So, she was sitting slightly above both of those
numbers in both the evidence of the cardiology and of her
kidney doctor, which is one of the reasons why she was started
on a blood pressure medicine known as Metoprolol, which is in
the family of beta blockers that's frequently used in patients
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with high blood pressure and kidney failure.
Q And, doctor, you mentioned just a moment ago about a
heart function test in 2013. Did that at all evaluate her
coronary arteries after her bypass procedure in 2003?
A It did. Mrs. Cooke had three separate studies.
Number one, because it had been now 10 years since the bypass,
and even when you have a wonderful surgeon who does the
bypasses, the continuing process of the diabetes, and the high
blood pressure, and the kidney problems can cause the graphs to
fail.
So, in 2013, she had coronary angiography where her
heart doctors injected dye in through the blood vessels to take
pictures of the graphs, and it showed that those vessels were
open, but that her native vessels were dependent on the bypass
graphs.
Second, she had a picture taken through the chest.
That's called echocardiography where the technician and the
heart doctor puts ultrasound probes on the chest to see the
function of the heart muscle, and the valve, and they noted, in
2013, that her heart function, which you or I should between 60
and 70 percent of the squeeze, was half of that; that she was
at 30 to 35 percent ejection fraction, and she had leakage of
her mitral valve, which is the major valve that separates the
left ventricle, the major pump of the heart with the left
atrium. So, she was having, instead of all the blood going
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forward, some element was going backwards.
And then she had a Lexiscan. That was the third test
that I mentioned earlier in which they made her exercise on a
treadmill, and then they injected her with radioactive follow-
up dye to basically assess if there was any reversibility or
ischemia. And, although she did have some fatigue that caused
her to stop the test slightly early, it confirmed the prior
test, the echo, stating that her injection fraction was 40
percent.
So, we had on the echo 30 to 35 percent, the Lexiscan
40 percent, which was relatively close, but, again, it showed
that there was no significant EKG changes when she exercised on
the treadmill.
Q You mentioned the ejection fraction of I think you
said 35 to 40 percent?
A Yes, sir.
Q And that was done in evaluating her in 2013?
A Correct, May of 2013.
Q Did you see any subsequent evaluations of Ms. Cooke's
ejection fraction thereafter?
A I did, yes.
Q And what did you see?
A After the August 21st event in the operating room,
the doctors caring for Ms. Cooke correctly ordered a follow-up
echocardiogram to compare the test on August 22nd to the one
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back in May, and they found that her ejection fraction was now
further reduced after the operative event to only 15 to 20
percent. So, again, that was half of what it was in May of
2014, and it was only 25 percent of what a normal heart would
be. Again, normal is 60 to 70 percent. After the
resuscitation event, she was now down to 15 to 20 percent.
Q Doctor, I want to assume, for purposes of my
question, that in the medical records for Ms. Cooke in August
of 2014, there's a reference that her ejection fraction was 60
percent. Based on what you reviewed, do you find anything to
support that particular entry?
A Correct. I saw that entry after she got to the ICU.
A cardiologist was consulted, and made that entry in the
medical record, and that is, clearly, wrong. If you look at
Mrs. Cooke's medical records from Cardiology Consultants, there
is no data within the past year to support that she had a
normal ejection fraction of 60 percent at any time leading up
to the surgery in August 21st of 2014.
MR. HERSCHFELD: Your Honor, mark this?
THE COURT: Yes, sir.
(Discussion off the record.)
MR. HERSCHFELD: Your Honor, may I approach?
THE COURT: You may.
BY MR. HERSCHFELD:
Q Now, doctor, I'm putting before you a binder that has
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Exhibit 1, which you'll find the April admission; Exhibit 2
being the August 2014 admission. Have you seen those
documents? I think you told the jury that you've seen those as
part of your ongoing review?
A Yes, sir. I had a similar notebook that included
this data in the notebook I reviewed.
Q Doctor, let's talk a little bit about April 2014.
Ms. Cooke went in for a procedure at Shady Grove Adventist
Hospital, correct?
A That's correct. Yes, sir. She had to have surgery
on her lower extremities by Dr. Assili, her podiatrist.
Q And she received IV sedation?
A She did, yes. At Shady Grove Adventist, she did
undergo what would be described as MAC anesthesia with IV
sedation in April of 2014.
(Discussion off the record.)
MR. HERSCHFELD: All set?
THE CLERK: Yes.
MR. HERSCHFELD: Thank you very much.
BY MR. HERSCHFELD:
Q Doctor, what I'm showing you has been pre-marked as
Plaintiff's Exhibit 1A. This is the anesthesia flow sheet.
MR. HERSCHFELD: Let's back out to see the exhibit.
I'll step back some.
THE COURT: Brian, you want to try dimming these, the
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ones that will dim a little bit?
THE CLERK: Yes.
THE COURT: Sometimes the glare is here.
MR. HERSCHFELD: Thank you, Your Honor. It's also
yellow. I don't know why that is. My apologies.
THE CLERK: (Unintelligible.)
THE COURT: I don't know why it's yellow.
MR. HERSCHFELD: We can work through it, Your Honor.
THE COURT: Okay.
MR. HERSCHFELD: I don't want to hold us up.
Thank you, Brian.
THE COURT: There you have it.
MR. HERSCHFELD: If he's willing to push the button,
I'm not.
THE COURT: A true millennial after my own heart.
MR. HERSCHFELD: Okay. Thank you. Much better.
THE COURT: Just give him a minute, and he'll have
it.
BY MR. HERSCHFELD:
Q Plaintiff's Exhibit 1A, which is page 36 of Exhibit 1
that you have there --
A I'm with you.
Q -- in front of you. So, I'm just putting this --
THE COURT: I'm sorry. Page 26?
MR. HERSCHFELD: 36, Your Honor.
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THE COURT: 36.
BY MR. HERSCHFELD:
Q So, this is the anesthesia flow sheet. This is not
Mr. Hwang, correct?
A That's exactly right. It's a different anesthesia
team.
Q Okay. Well, let's talk just very briefly. I'm going
to try to find one with a technical capacity. The medications
that were used at this procedure are listed here for the
anesthesia, correct?
A That is correct, yes. Mrs. Cooke was given fentanyl,
which is a synthetic narcotic; then was given propofol, which
is a sedative hypnotic to make her sleepy and sedated; and she
was given oxygen.
Q Okay. Now, just prior to the procedure, the
anesthesiologist checked her blood pressure, correct?
A That's correct. At 0832 or 8:32 in the morning, the
anesthesia team rechecked her vital signs, and found her blood
pressure to be 143 over 71 millimeters of mercury.
Q Okay. And just jumping ahead, when we talk about
August of 2014, when Dr. Hwang was delivering anesthesia, at
the same point in time in the process when he checked her blood
pressure, what was her blood pressure that day?
A It was 97 over 35.
Q All right. Doctor, let's jump to the August 2019 --
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I'm sorry, the August 19, 2014 admission.
A Yes, sir.
Q Why was she in the hospital at that time?
A Mrs. Cooke had gone to see her podiatrist, because
she had developed pus, and a possible gangrene of her left toe
after an injury, and she continued to have problems with wound
healing on both heels, where she had developed what's known as
an eschar, which is a tough scar, basically, over the heels
that often is seen in patient's with bad blood flow to the
legs.
So, Dr. Assili admitted her to Shady Grove Adventist
Hospital for both pain management, and medical clearance in
order to then subsequently, on August 21st, undergo surgery on
the toe, and potentially on the heels.
Q And did she receive surgical clearance to go forward
with the toe amputation on the 21st?
A Yes. Ms. Cooke was seen both by a hospitalist, who's
a physician in internal medicine, Dr. Johnson, who provided a
medical evaluation, and did feel, at that time, the patient was
medically cleared pending a transfusion of blood to improve her
hemoglobin and hematocrit; and she was seen by Dr. Assili's
partner, Dr. Baek B-A-E-K, who was a podiatrist, who gave her
surgical clearance for Dr. Assili to operate the following day
on August 21st.
MR. HERSCHFELD: Court's indulgence.
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BY THE COURT:
Q So, this was on the 20th?
A The, the, the podiatry consult by Dr. Baek was on the
20th of August.
Q Okay.
MR. HERSCHFELD: My apologies, Your Honor. Just too
much paper, and not able to find everything.
BY MR. HERSCHFELD:
Q Doctor, did you review Dr. Baek's consult or
evaluation on the 20th?
A I did, yes, sir.
Q And what did you find in terms of his evaluation of
Ms. Cooke's toe?
A Dr. Baek identified that what's described as the
distal part of the left big toe, distal means the farthest part
out, the part where the nail sits, appeared to have dry
gangrene, meaning that it was no longer viable, and that the
area between the gangrenous portion, that area about the toe,
and the viable part of the toe had a circular area of erythema,
which means redness, or induration, and that that would be the
area then that was identifying the border between the non-
viable part that would be amputated, and the viable part that
could be saved from the surgery.
MR. HERSCHFELD: Just trying to get these up on the
screen.
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BY MR. HERSCHFELD:
Q And this is where you talked about this erythema?
A Correct. At the very first line it says well
demarcated, that means outline or identified with surrounding
erythema. Erythema is a medical term; it means redness. And,
then, also, has a well-circumscribed heel eschar, that's that
patchy, leathery-like wound area on the back of the heel, and a
semi-moist eschar on the right. So, on the right side the
leathery eschar appeared to have some pus in it, making it
somewhat softer. Usually eschars are leather and dry, but on
the right there appeared to be some moisture.
And, so, thus, he assessed, where it says assessment
lower extremity diabetic ulcer. So, the ulcer was from the bad
blood flow related to the diabetes, and there was
osteomyelitis, meaning that there was infection of the tissue,
and possibly osteo means bone, of that bone fragment at the end
of the toe underneath the nail.
Q And just showing you the preceding page.
MR. HERSCHFELD: This is pages, for the record, 62
and 63 of Exhibit 2.
BY MR. HERSCHFELD:
Q This is down at the bottom of his physical exam where
he talks about that she has an necrotic left distal great toe.
You talked about that a moment ago.
A Yes. Necrotic essentially means non-viable or dead.
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It means that even with reestablishment of blood flow, the
tissue is no longer salvageable, but often has a dark purple or
black appearance, meaning that it was developing gangrene, and
either will fall off on its own eventually, or, if it's
infected, would surgically be removed.
Q Anything in Dr. Baek's evaluation that indicates that
the bone is coming through the tissue of --
A No, sir. I did not see anything in Dr. Baek's
history of the patient, his physical exam, or the assessment of
the bone protruding through the lesion.
Q And, as part of your review, did you see anything
that spoke about a problem with Ms. Cooke's anemia prior to
surgery?
A Yes. Mrs. --
Q And can you explain what you observed in the record?
A Correct. Anemia means low blood count, and is
assessed by the doctors two ways, one, the patient's hemoglobin
level, the actual measurement of the amount of hemoglobin; and,
secondly, the hematocrit, which is the mathematical percentage
of hemoglobin in the blood itself.
Patients with kidney failure often have some degree
of chronic anemia, because the kidney is important in telling
the bone to make red blood cells, but in Mrs. Cooke's, she had
developed significant anemia. At the time that she was at
Shady Grove Adventist, the normal range for a woman her range,
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age would be on the order of 11 to 14 hemoglobin, and hers was
down to 6.9 grams.
Also, for the hematocrit, normal would be on the
order of 33 to 42, and hers was down to 21.5. So, she clearly
had significant low blood count, both on the hemoglobin and
hematocrit, and the hospitalist, Dr. Johnson, ordered
appropriately, I'm not critical at all, an order for two units
of packed red blood cells to be transfused. Since each unit
routinely increases the hemoglobin by one gram per deciliter,
and 3 percentage points on hemoglobin, the two units would have
increased Mrs. Cooke's hemoglobin to, approximately, 8.9, and
the hematocrit from 21.5 up to about 27 or so.
Q And why is that important that Ms. Cooke's anemia
needed to be corrected?
A So, first, hemoglobin inside the red blood cell is
the only substance in men and women that carry oxygen. Even if
you blow oxygen to the nose, and mouth, and the lungs, it can't
get into the body, and go to the vital organs without
hemoglobin to kind of act as a choo-choo train to carry it to
the brain, to the kidney, to the toe.
Second of all, although the blood vessels help
control the blood pressure, there's also a determinant of
internal viscosity, how thick the blood is. If the blood is
too thin, then you're not going to have a normal blood
pressure, even if the blood vessels are squeezing down, because
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you don't have thick enough blood to create an internal
resistance of the blood flow.
And, then, lastly, obviously, the hemoglobin itself
by providing important oxygen to the vital organs, including
the heart, is going to be providing oxygen and nutrients to
allow those organs to function normally. So, when we assess a
patient for surgery, we want to know that they have adequate
oxygen-carrying capacity, so that we know that their vital
organs are being adequately perfused.
Q You had mentioned earlier that Ms. Cooke had end-
stage renal disease, and had utilized peritoneal dialysis. Did
that occur while she was in the hospital before surgery?
A It did. Mrs. Cooke received comprehensive care by
Dr. Hellman, an nephrology consultant. She routinely received
dialysis at night, so she would hook her cannula up to the
peritoneal dialysis unit, and undergo peritoneal dialysis.
Peritoneal dialysis puts fluid into the abdomen to then help
get all the toxins that would normally go out through your
kidney. And, so, it's removing those organic acids out of the
system, and, also, helping to remove some of the volume
overload, because, obviously, if you can't urinate
appropriately, even with the help of medicines like Lasix,
then you're going to build up fluid.
So, the dialysis, the peritoneal or blood dialysis
helps remove both the toxins and the excess fluid to bring the
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patient back into a normal balance, and usually a little drier,
because you're taking more volume off, so that then during the
next day or so they, with drinking water, drinking orange
juice, they have room to build up the fluid.
Q And, doctor, you talked about her preexisting
hypertension. How was her hypertension leading up until the
time -- managed or status leading up until the time of surgery?
A So, Mrs. Cooke was receiving high blood pressure
medicine in the form of what's known as a beta blocker,
Metoprolol. This is a wonderful medicine for patients, such as
Ms. Cooke, because it, not only helps control their blood
pressure, in fact the trade name is called Lopressor, press the
blood pressure down, but it also has some benefit on the heart
by limiting the heart rate so they don't get very fast heart
rates, which could put more stress on the heart. So, you,
essentially, get more bang for the buck, lower blood pressure,
and less stress on the heart.
And, then, she was intermittently also receiving
doses of Lasix or Furosemide, since she, at times, was making
small amounts of incompetent urine, not strong enough to clear
the toxins from her body, but occasionally she was making small
amounts of urine.
Q And can you also give the jury a little background on
some of the medications Ms. Cooke had been receiving leading up
until the time of surgery?
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A So, obviously, one of the problems Mrs. Cooke had
had, which is common in patients with diabetes that are having
inadequate blood flow to the lower extremities is she was
having a lot of pain in her calves, her heels, and her feet.
In medicine we call that claudication, and it's a fancy term
claudication that simply means pain because of decreased oxygen
and blood flow to the bone, and to the tissues.
She was getting medication by mouth, some Oxycodone,
in order to try to help with that, but that wasn't relieving
all of the pain, so she was also receiving a fentanyl patch,
which would be put on the skin, and the fentanyl patch stays on
for three days, and releases the narcotic through the skin.
It's absorbed then into the bloodstream from the skin, and
gives the patient a chronic baseline level of medication.
She was, of course, also on medication to control her
phosphate levels, because in kidney failure you can't excrete
phosphate, and, also, medication known as Epogen
Erythropoietin. This is an injection that actually replicates
what you or I make in our kidney. We make erythropoietin, and
it goes to the bone to tell the bone to make red blood cells,
but when the kidneys are failing, you no longer make that, so
she required those injections to help maintain her hemoglobin
level.
Q And, as part of your review, I think you indicated
you read Ms. Hydoski's deposition testimony?
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A I did, yes, sir.
Q And you read about a change in anesthesiologists
prior to the surgery taking place in this case?
A That's correct. In Mrs. Hydoski's deposition, when
she first arrived at the hospital, she had been told the
surgery would occur at, approximately, 2:15 in the afternoon,
which is 1415 military time. She was somewhat surprised,
according to her testimony, that when she arrived that her
mother had already been brought to the pre-anesthesia
assessment. And, when she was then taken down, her mother was
being interviewed by an anesthesiologist.
At some point after that anesthesiologist had done
his assessment of Mrs. Cooke, he proposed that Mrs. Cooke have
a spinal anesthesia, or a general anesthetic. Prior to then
any documentation by that anesthesiologist, Mrs. Hydoski
testified in her deposition that then that anesthesiologist
was --
MR. MITCHELL: Your Honor, I should have objected
earlier. It's all hearsay at this point, so I move to strike
the hearsay about what did this phantom anesthesiologist said
to Ms. Hydoski.
THE COURT: Let me see you at the bench.
(Bench conference follows:)
THE COURT: The unidentified anesthesiologist, are
there records here?
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MR. HERSCHFELD: Introduced by him, or anything that
he said or did?
THE COURT: No, not identifying, but whoever the --
MR. HERSCHFELD: No, he didn't make any --
MR. MITCHELL: He had made no entry in the chart.
THE COURT: Okay. So, your objection is this witness
testifying to what Ms. Hydoski says he said?
MR. MITCHELL: Correct.
THE COURT: Okay.
Mr. Herschfeld?
MR. HERSCHFELD: Well, Your Honor, as an expert, he's
allowed to rely upon the various information, depositions, and
medical records, and he's speaking about what he understands
transpired between Ms. Hydoski and an anesthesiologist.
THE COURT: But not just talking about it, it has to
be related to an opinion.
MR. HERSCHFELD: We're going to get there, Your
Honor.
THE COURT: Okay.
MR. HERSCHFELD: We're going to get there.
THE COURT: Okay. So, I'm going to instruct the
jury. I think it's fair to instruct them that he is -- I don't
want to step in, and, so, maybe you can do it in the form of --
because you both have mountains of information that you're
relying on for your respective witnesses to form their
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opinions. I think it needs to be clarified, perhaps, that this
I what Ms. Hydoski -- is it Mrs. or Ms.?
MR. HERSCHFELD: Mrs.
THE COURT: -- Mrs. Hydoski told him, or relayed it
in her deposition --
MR. HERSCHFELD: I understand. I understand the
hearsay issue.
THE COURT: -- so they don't take it as true, and
it's not being offered as the truth of it, it's being offered
to form his opinion.
MR. HERSCHFELD: Yes.
MR. MITCHELL: Here's another issue that I can --
THE COURT: And I'm sure you're going to have some of
it too.
MR. MITCHELL: -- preempt is that Stuart knows, Mr.
Herschfeld knows that none of this is a criticism of this
doctor of Dr. Hwang. None of this interaction with this
anesthesiologist --
THE COURT: Well, he's said that several times.
MR. MITCHELL: No, he hasn't said that. I think he's
trying to, perhaps, weave in that this is somehow criticism
against Dr. Hwang, because that's not in the designation nor
his depo.
THE COURT: Well, what I've heard him say several
times is not criticizing somebody for doing something, as he's
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looked at the records, he said two or three times --
MR. MITCHELL: Correct.
THE COURT: -- that whatever so and so did --
MR. MITCHELL: Some treating physician, correct.
THE COURT: Right. So, you know, obviously, he
wasn't here. I think they're clear on that, but I just -- so,
I don't want to step in, and say anything on either one of you
to try to make what I say matter, but I do think it needs, you
know, give it more deference than it should to a jury, but I do
think it needs to be clarified that this is information that he
has reviewed.
MR. HERSCHFELD: Yes.
THE COURT: So, maybe just clarify it that way. It
is hearsay so we're all clear on that. It is, clearly,
hearsay, but hearsay can certainly be the basis of an expert
opinion. And, in this instance, certainly, he's looked at
everything that's been gathered. We don't know who the mystery
person is, as I understand it, and no way to figure that out.
So, I'm going to overrule the objection with that
clarification.
MR. HERSCHFELD: Absolutely, I'll work on that with
him.
THE COURT: Okay. Okay. All right.
(Bench conference concluded.)
THE COURT: Overruled, subject to our discussion at
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the bench.
MR. HERSCHFELD: Yes.
BY MR. HERSCHFELD:
Q And, doctor, in terms of answering questions, please
don't get into any specific discussion between Ms. Hydoski and
this other anesthesiologist --
A Yes, sir, understood.
Q -- just what you gleaned from reading --
A Sure.
Q -- her deposition, okay?
A Yes, sir.
Q All right. But you've read that entire encounter?
A I did, yes, sir.
Q Okay. Now, would you tell the jury, please, what is
required by an anesthesiologist before clearing a patient, who
is undergoing surgery, to receive anesthesia as part of that
surgery?
A So, one of the requirements of an anesthesiologist
for either an elective or urgent case, so we're not talking
about the gunshot wound that comes in that has to go
immediately to the operating room, is for the anesthesiologist
to do a comprehensive assessment of the patient to determine
that patient's stability to undergo both the anesthetic, and by
inference also the stress of surgery.
That process starts by a review of the chart to see
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what's happened over the last several days that the
anesthesiologist needs to be aware of. Then it moves into a
review by the anesthesiologist in discussion of the patient's
history with the patient, or their family if the patient can't
communicate; a review of the patient's labs, particularly those
focused in what her medical problems are; and, also, any
testing, if available, such as an EKG and chest x-ray.
Next would be a review of the medical consultants;
looking at the summary of those doctors who know the patient
well, or had seen the patient pre-operatively, and are giving
their opinion about the patient's medical problems; and, of
course, then going in to see whether or not the patient has had
medical clearance from an internist, the family physician,
cardiologist, who, again, has specifically been asked whether
the patient is stable, and prepared for surgery; and then a
review of the patient's allergies and medications, because in
anesthesia we're giving multiple medications. You want to make
sure whether or not the patient's allergic to any medicine, or
has had an adverse event to anything, or, if they're no
medicine that may interact with what we're going to give.
After all of that is done, a focused physical
examination looking at the airway, because we may be putting in
the breathing tube, looking at the teeth and the tongue;
listening to the heart and lungs focused on that area. If we
were to do a spinal, looking at the back.
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And, once we've done all of that, then we would
formalize a plan, and discuss it with the patient informing
them what we are planning to do, and what we're recommending;
answering any questions they may have about the anesthesia
care, who is delivering it, what technique we're recommending;
and then go over briefly the informed consent talking about the
major risks, the possible benefits, and the alternatives, and
sometimes there can be two or more ways to get the same job
done.
And, then, lastly, after all of that is done, and the
plan is confirmed, finally, to reassess their vital signs one
last time before heading off to the OR to make sure that
nothing has changed.
Q And that process, typically, would take an
anesthesiologist about how long?
A In my 25 years of practice, it typically would take
me 15 to 20 minutes to check off all those boxes, to look in
the chart, to talk to the patient, to look at the labs, EKG,
chest x-ray, to get the medical clearance, to formalize the
plan, to examine the patient, and then get the consent.
Q And you've read Dr. Hwang's deposition testimony?
A I have, yes, sir.
Q And, based upon your review of his deposition, how
long did he say it took him to do those very same tasks in Ms.
Cooke's cases?
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A Dr. Hwang testified in his deposition that it took
him five to ten minutes to do Mrs. Cooke's pre-operative
assessment.
Q Now, doctor, I want to ask you a little bit about the
issue of documentation, and electronic medical records.
Showing you page 155 of Exhibit 2, which is the anesthesia flow
sheet, which was marked for identification --
THE COURT: That's the Bates stamp?
MR. HERSCHFELD: Bates stamp, yes, Your Honor.
THE COURT: Okay.
MR. HERSCHFELD: 155. It's 2B.
BY MR. HERSCHFELD:
Q Have you trained residents and fellows with respect
to how to use a chart like this?
A I have, yes. It's common in anesthesia, since my
first days at Temple, to do an anesthesia record for every
patient who's anesthetized. That can either be in this form,
which is handwritten, or in some ORs now we do have electronic
medical record, but in either case it records what has gone on
in terms of the patient's vital signs, the drugs, and the
patient's response during the anesthetic.
Q And we'll slowly introduce part of this discussion
into this chart, but there's a time column across it says 15X,
and then 16. Do you see that?
A I do. Yes, sir.
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Q In this particular case, can you explain to the jury
what the Xs stand for, and what those numbers stand for?
A Certainly. So, it's very common in medicine to use
military time. So, in the a.m., we would say 1:00 a.m., 2:00
a.m., 3:00 a.m. For the p.m., so that we don't confuse it,
1:00 p.m. would be 1300, 2:00 p.m. would be 1400, 3:00 p.m.
would, basically, the same as military time through 2400.
The anesthesia record has two forms of graph paper.
The upper one that has the Xs and the 15, and the X, and the
16, those are 15-minute intervals. Each line going down
denotes 15 minutes have passed. So, the first X would be at
1430, or 2:30 p.m. in the afternoon. The next line down would
be 1445, or 2:45 p.m. The 15 means 1500 or 3:00 p.m. The next
line down would be 1515, or 3:15 p.m. And then the last X
would be 1530 or 3:00 p.m.
The smaller boxes towards the bottom of the page that
look like graph paper we might have had in high school, those
represent five-minute intervals. So, whereas the big ones are
15, the lower ones are subdivided, and we would be recording
heart rate, blood pressure, respiration every five minutes
during the case, unless possibly there was some change or event
where we might record it more frequently.
Q So, when an anesthesiologist is recording up here
above these particular medications, and we'll get into in a
moment what the numbers specifically mean, how were you trained
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and trained others in terms of how to record, and where to
record when those medications are being administered?
A So, since the anesthesia record is supposed to
accurately reflect what the anesthesia team is doing at every
minute during the case, you're to record the medications, and
the interventions at the time they're given as close as
possible given the limitations of the graph paper.
So, for example, when you see under oxygen where it
says 4 liters per minute, that started at shortly after 1431 or
1432. It was in the time that was consistent with the entry
into the operating room.
Similarly, the fentanyl, which is 15 micrograms,
that's the dose, or 1 milliliter out of the syringe is the
concentration or the volume, rather, that would have been given
according to the anesthesia record at some point between 1435
and 1440, because it's, you're trying to get it into that area
of the box, but you can't specifically say.
And, then, lastly, the propofol is written on the
line, which indicates that it's given, give or take one minute
in either direction, at, approximately 1445, or in the area of
2:45 p.m. You're trying to write them as close to the area as
possible, so when someone goes back you have an idea of when
they're given in coordination with the vital signs that are
recorded lower down.
Q And would that also be true when we talk later about
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the Epinephrine that's given that's the number 1 that's --
A Yes. So, the 1 represents 1 milligram of
Epinephrine, which is also known as adrenalin, and that would
be given right in the middle between 1445 and 1500. So, it's
given in the area around 1450 to 1453 in that area kind of
towards the middle of that.
And, then, below that Narcan, which is a reversal
drug; it reverses the effects of fentanyl. Again, it was
written on the line at 1500, so give or take a minute in either
direction, we have to obviously give the anesthesiologist a
little bit of leeway based on the penmanship. It was given
somewhere around 3:00 p.m. where it's indicated that the Narcan
was given.
Q And when you were trained, and you trained others in
terms of filling out a flow sheet like this, if you made an
error or mistake in the recording, how were you supposed to
correct it? How was that --
MR. MITCHELL: Objection. Can we approach?
THE COURT: Sure.
(Bench conference follows:)
THE COURT: Okay. Tell me the question again. Say
the question again.
MR. HERSCHFELD: How were you taught to correct an --
THE COURT: How was he taught.
MR. HERSCHFELD: -- and how does he teach others to
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correct --
THE COURT: To correct.
MR. HERSCHFELD: -- when there's an error in the
chart that needs to be corrected.
THE COURT: Okay. And what's the objection?
MR. MITCHELL: There's no allegation, in this case,
that the charting by Dr. Hwang is a breach in the standard of
care. (Unintelligible) designation, he has a lot of
criticisms, but that wasn't one (unintelligible) deposition, so
this is completely new.
MR. HERSCHFELD: Well, it's a factual issue, because
I can bring the exhibit to the Court. May I?
THE COURT: Is it this?
MR. HERSCHFELD: Yes, Your Honor.
THE COURT: Yes, I have it right here.
MR. HERSCHFELD: And I don't want to do this yet in
front of the jury.
THE COURT: Okay.
MR. HERSCHFELD: But we're going to get into a
discussion, during the course of this trial, that there's this
term PEA that's written in. And I can tell you if you blow
this page up, there is writing underneath that. So, Dr. Hwang
denied in deposition that something's written underneath that,
but I want the jury to have the opportunity to see, and he can
talk, and I'll conclude --
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THE COURT: Do you have a blown up version of it?
MR. HERSCHFELD: I'm going to do it while --
THE COURT: Oh, I see.
MR. HERSCHFELD: -- with the Elmo, but I'm not going
to do it this moment in front of them.
THE COURT: No. No. I understand.
MR. HERSCHFELD: But it is evidence that there is
writing underneath PEA.
THE COURT: So, this was probed during the
depositions?
MR. HERSCHFELD: I asked him in deposition, and he
denied that there's anything written underneath it.
THE COURT: Okay.
MR. HERSCHFELD: The jury can come to their own
conclusion whether that is a fair and accurate statement on his
part.
THE COURT: Okay.
MR. MITCHELL: But he has no opinion that that's a
breach.
MR. HERSCHFELD: It doesn't have to be.
MR. MITCHELL: (Unintelligible) nowhere.
THE COURT: Well --
MR. MITCHELL: He's got to say that X is a breach.
THE COURT: -- does everything that he says have to
be aimed at a breach?
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MR. HERSCHFELD: Of course, not, not everything he
says.
THE COURT: Okay. So, we might not be there, but I'm
guessing if the plaintiffs' vary --
MR. JACKSON: Well, then my ears are going to be
peaked if we get there. So, I appreciate it. So, I'm just
giving you a heads up that that's where it's going.
THE COURT: But I'm guessing that in the plaintiffs'
perfect world to go is that this is not normal to have
something written -- if that's something written over that's
not normal, or in the standard of care, or something's been
changed is the innuendo as I understand it.
MR. HERSCHFELD: It is not --
MR. MITCHELL: That's not in his designation of the
testimony either --
MR. HERSCHFELD: I'm not -- please.
MR. MITCHELL: Sorry.
MR. HERSCHFELD: There's no allegation that it's a
breach of the standard of care. It is a factual issue --
THE COURT: Okay.
MR. HERSCHFELD: -- that the jury's entitled to hear,
because it goes to the doctor's credibility.
THE COURT: Yes, the doctor, Dr. Hwang?
MR. HERSCHFELD: Dr. Hwang's credibility.
THE COURT: Okay. I think that, certainly, Mr.
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Herschfeld's just starting to probe this issue. And it is
certainly one that you all are well-versed in, because you've
been at every step of the way of this preparation. Neither the
jury, nor I have any idea what's coming next, but it certainly,
I think, does go to credibility if there is an issue of whether
or not the record has been modified, or changed, or whatever
word you want to use, but it's certainly their burden to prove
it. It's subject to cross, and I don't know that it goes to
the standard of care.
MR. MITCHELL: Okay.
THE COURT: But I think it's certainly fair game
under the setting that this case is being tried.
MR. MITCHELL: Okay.
THE COURT: So, overruled.
MR. HERSCHFELD: Thank you, Your Honor.
(Bench conference concluded.)
THE COURT: Overruled.
(Discussion off the record.)
MR. HERSCHFELD: Okay. May I continue, Your Honor?
(Discussion off the record.)
THE COURT: Yes.
BY MR. HERSCHFELD:
Q All right. Doctor, let me go back. When you were
trained, and when you trained residents and fellows on when an
error was made in this type of flow sheet, and it was
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recognized, what were you trained, and how did you train others
to make a notation or correction in the chart to reflect that
misnomer or errors?
A The standard methodology for a doctor or nurse to
correct a, a medical notation error is to draw a straight line
through the inaccurate entry, to initial it by the physician or
nurse who's correcting it, put a date and time, and then either
above it or below it make the entry and the correction.
Q And let's get right to the point on this point. You
have looked at this chart, correct?
A That's true.
Q And have you, we're going to get to later the
specific discussion.
MR. HERSCHFELD: Sorry ladies and gentlemen, I'm not
very good at this.
BY MR. HERSCHFELD:
Q There's this term SR --
A Yeah.
Q -- PEASR, do you see that?
A Yes. SR stands for sinus rhythm, also known as
normal sinus rhythm; it refers to the heart rate and rhythm.
And then PEA is the abbreviation for pulseless electrical
activity. That occurs when there's still some electrical
morphology on the EKG, but the heart has no longer continued to
beat; it's completing arrested. So, you're in a code
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situation, but there is still some irregular heart electrical
activity.
Q Based on your review, does it appear to you that
there is something written under PEA?
A Yes. In looking at this medical record, it does
appear that Dr. Hwang wrote the initials PEA on top of
something underneath it.
Q Can you make out what was written underneath PEA?
A I could not, because it, it was, it looks like
there's an overwrite. Whatever was underneath it was morphed
into the P, and then the E was written over it.
Q Okay. Let's talk a little bit about the term nasal
cannula, because that is going to come up in bag mask. Can you
explain what those terms are, and how they are applicable here?
A Yes. Nasal cannula is a thin piece of plastic tubing
that wraps around the upper part of the lip, and comes around
the ears through which small amounts of oxygen, anywhere from 1
liter up to 12 liters, can flow into the nasal cannula
providing additional or supplemental oxygen, particularly if
the patient is being sedated.
And, also, through that device, we have a side port
known as a salter, S-A-L-T-E-R, named after the doctor who
invented it, port, which allows the anesthesiologist to hook up
a carbon dioxide monitor that then you can detect when the
patient is exhaling through his or her nose. So, you see not
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only the oxygen going in, but the carbon dioxide coming out on
the anesthesia screen.
Q And, through the course of the procedure, Ms. Cooke
was being monitored?
A Correct. As in any anesthetic, the anesthesia record
does document that Dr. Hwang did have monitors on the patient
during the delivery of anesthesia.
Q Can you just briefly mention to the jury the type of
monitors and what they're intended to do?
A Yes. So, the American Society of Anesthesiology
mandates that any patient undergoing an anesthetic, whether
it's IV sedation or general anesthesia, have an EKG that
records the electrical data from the heart continuously during
the operation, and that that data then be recorded, at a
minimum, of every 15 minutes, which is where you see the SR
sinus rhythm.
Number two, that the patient have a blood pressure.
Often it's in the form of a cuff that's on the arm or could be
on the leg, if the patient has a dialysis catheter in, and that
cuff would be inflated anywhere from one to five minutes.
Commonly, in anesthesia, we use the two and a half to three-
minute interval, and then that needs to be recorded, at a
minimum, of every five minutes during the anesthesia in the
smaller boxes.
Third, the patient would have their oxygen level.
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The pulse oximeter, which looks like a finger clothespin, which
either gets placed or taped on the finger, or the ear, or even
sometimes the bridge of the nose continuously measures the
amount of oxygen that's surging through the patient's blood,
and then gives, not only a saturation, saying 99 or 100, so the
anesthesiologist knows the number, but, also present a waive
form that's consistent with the blood as it's going through the
finger, or through the ear, and that's known as the impedance
wave form, and reflects the heart function.
And, then, next would be, you see on the left corner
temperature. Temperature is measured either from the skin
during sedation or if they're asleep from the mouth or deeper
in the body, such as the bladder or esophagus. That's to make
sure the patient doesn't cool excessively, or have high fever
during the surgery, which may reflect either anesthesia
complication, or infection.
And, then, where it says capital E, capital Tco2 over
there on the left, that stands for end-tidal, meaning exhaled,
end-tidal was exhaled through the patient's nose or mouth;
co2, carbon dioxide, and, essentially, the gas that is exhaled
from the patient's nose, a small amount of that is brought to
the machine where an infrared beam is shot through it, and can
measure very accurately the amount of carbon dioxide in the
exhaled gas, and gives the anesthesiologist both the
measurement of the amount of co2, but, also, because it's
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measuring the wave forms, the number of breaths per minute that
the patient is breathing.
Q And, doctor, we talked earlier a little bit about Ms.
Cooke's anemia. Do you have an opinion, in this case, whether
her anemia was adequately addressed before she went into the
operating room, and underwent anesthesia?
A I do have an opinion.
Q And what is that opinion?
A My opinion is that Mrs. Cooke's anemia was not
adequately addressed prior to the onset of the anesthesia, or
the surgery. As mentioned previously, her hemoglobin was 6.9
grams per deciliter, which is a critically low measurement, and
her hematocrit was equally critically low at 21.5. At Shady
Grove, the lower limit is 33 percent, so that was a notable
drop off in both values.
The hospitalist did correctly identify the
significance of the anemia, and had ordered the transfusion of
two units of blood in Ms. Cooke. And the first unit was
started, and was put through a peripheral central line, known
as a PICC line, which is a long thin line that comes from the
arm and goes to the central circulation. They're useful for
antibiotics. They're notoriously not good for blood
transfusion, because the caliber line is very small, and, so,
it can take a long amount of time to put blood through a PICC
line.
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And, in Mrs. Cooke's case, the first unit had not
been completed at the onset of the anesthesia and the surgery,
and, nor had the second unit even been hung. So, there was
also no measurement of her labs during the transfusion to
support that anemia was corrected. In fact, that measurement
did not occur until after she got to the recovery room and the
ICU, when, then, subsequent arterial blood gases and lab
testing reflected that there had been no significant change in
the hemoglobin or hematocrit level at the time she was in the
operating room, despite the first unit being infused.
Q Now, you mentioned earlier as part of the process
that the anesthesiologist does a final assessment before
induction?
A Correct. Right before we start anesthesia, we
recheck the patient's vital signs to make sure that they're
stable before we start giving medication, which routinely does
change the patient's vital signs just as the nature of the
anesthetic; that's not abnormal, but you need to know where
you're starting to see the magnitude of the drop and any
potential danger that may be exposed to the patient.
Q And, doctor, in your deposition, were you asked about
the last blood pressure that was taken by a nurse prior to Dr.
Hwang's assessment in the operating room?
A I believe I was asked. I think the last blood
pressure I recall was on the order of 110 over 55, before she
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went back. That was by a nurse a little more than an hour
before she was brought into the operating room.
MR. HERSCHFELD: Your Honor, may I show him --
THE COURT: Yes, sir.
BY MR. HERSCHFELD:
Q Doctor, if I show you the vital signs from your
deposition, does it refresh your recollection as to what the
blood pressure was --
A Yes.
Q -- as assessed at 1344?
A Correct. So, this sheet is the vital signs sheet on
the electronic where the nurses record all of the data.
THE COURT: And what's the Bates stamp?
THE WITNESS: It was.
MR. HERSCHFELD: That's a different record, Your
Honor.
THE COURT: Oh, okay. Sorry. Okay.
THE WITNESS: But it's page 747 of --
THE COURT: Okay.
THE WITNESS: -- the Shady Grove medical record, and
at 1344 or 1:44 in the afternoon, the blood pressure was
measured at 115 over 54, and that had a calculated mean
arterial pressure of 74.
BY MR. HERSCHFELD:
Q And what is the significance of the mean arterial
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pressure?
A The mean arterial blood pressure is a reflection of
what the vital organs, the heart, the brain, the liver, the
kidney is seeing internally within the organ, and it's
reflected by one-third of the systolic pressure, and two-thirds
of the diastolic pressure. And routinely we want to keep that
number, particularly in patients who have organ dysfunction or
failure above 70 to guarantee that there's adequate blood
pressure to those organs.
Q Now, Dr. Hwang did his pre-induction evaluation at
what time?
A It's recorded to have been done at 1434, which is
2:35 p.m.
Q So, this is about 50 minutes, 50, 55 minutes after
the nurse's last assessment of her blood pressure?
A Yes, that's true.
Q And what did Dr. Hwang record blood pressure to be?
A Dr. Hwang recorded the blood pressure to be 97 over
35, which doing the calculation in my head would be a mean
arterial blood pressure of, approximately, 55 millimeters of
mercury.
Q Is that an adequate and safe blood pressure in order
to proceed with anesthesia --
A In a patient --
Q -- in your opinion?
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A -- such as Mrs. Cooke, my opinion would be no.
Q Why?
A Given her underlying medical problems, her chronic
hypertension, and the issues that I mentioned earlier about her
heart, a blood pressure such as this 97 over 35 with a
calculating mean over 55, coupled with the known presence of
the anemia with the hemoglobin only being 6.9, would be an
inadequate blood pressure to proceed until the transfusion was
completed.
Q And, doctor, let me ask you about the other values,
the heart rate 85, respiratory rate 16, and I'll let you --
A I think the saturation is 95 percent. I think when
Mr. Mitchell asked me in my depo, I thought that was a 98. As
I looked at it more, it looks 95. That, in and of itself,
whether it's 95 or 98 is okay, so, that's not an issue.
Q Now, you've reads the depositions of Dr. Domson and
Dr. Kelly?
A I did, yes, sir.
Q And they are of the view that it is reasonable to
proceed, because these other assessments are within normal
range. First of all, would you agree that these other numbers
are generally within acceptable range to proceed?
A I agree if one looked at those numbers in isolation,
not knowing anything about the patient's past medical history,
or the hemoglobin, those numbers, the heart rate, the rest
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rate, and the saturation are normal.
Q But if you take the totality of the assessment, in
your opinion, was it reasonable to proceed with anesthesia?
A When looking at the blood pressure, and the vital
signs in totality, including Ms. Cooke's history, her low
hemoglobin and hematocrit, and the fact that she had been
receiving Metoprolol, which limits the response of the heart
rate to tachycardia, then, no, this is unreasonable to proceed
with anesthesia until the transfusion is completed.
It doesn't mean the surgery has to be completely
canceled. It could be postponed till later in the day, or
first thing tomorrow morning, but you would not proceed with
anesthesia until, number one, the transfusion was completed,
and a repeat hemoglobin was measured; and, number two, that you
had rechecked the blood pressure, and had returned to a level
consistent with what it had been when the nurses took the blood
pressure.
Q Doctor, I want to focus now a little bit on the
medications that were given.
THE COURT: Before you ask him that question.
MR. HERSCHFELD: Sure.
THE COURT: Is everybody okay or my game plan was to
stop around 11:30 for about a 15-minute break, and then
somewhere a little bit around closer to 1:00 for a half hour
lunch break. Does that work? But if anybody needs to use the
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restroom, don't be bashful. Would you rather take it now or
keep going?
UNIDENTIFIED FEMALE JUROR: 11:30 is good.
THE COURT: Okay.
Okay. Go ahead. Sorry.
MR. HERSCHFELD: Okay.
BY MR. HERSCHFELD:
Q Doctor, the fentanyl, can you explain what that is,
and its purpose in the context, as well as side effects?
A So, fentanyl is a synthetic narcotic, meaning that
you do not find it in nature, like morphine comes from the
poppy plant of opium. fentanyl is made in the laboratory by
chemists. It's 100 times more powerful than morphine. We
routinely use it in anesthesia as an anesthetic drug, because,
number one, it works very quickly entering the brain and spinal
cord so it gives relief routinely within one minute after
injection.
It also has a relatively short half-life, on average
about 60 minutes, so, in terms of side effects later on,
whereas Morphine and Dilaudid can last for hours, fentanyl is
more limited in its Affect, and, as mentioned, it's a very
powerful narcotic 100 times more powerful than Morphine, so
that if we fear that the patient's going to have pain in the
OR, it usually works to effectively reduce their pain levels.
Q And, according to your review of the chart, are you
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able to tell the jury when you believe the fentanyl was
administered by Dr. Hwang?
A From the notation, it appears that the fentanyl was
administered sometime between 1435 and 1440, based on the
record, although, again, Dr. Hwang testified that he gave it
somewhere between 1432 and 1433, a minute or two after entering
the operating theatre.
Q And, based upon your review of other components of
the record, does that appear to be an accurate indication of
when the fentanyl was given at around 1435 to 1440?
A Correct.
Q Okay. Another of the medications given was propofol?
A Correct. The second medication that was given,
approximately, five or more minutes later, was the drug
propofol.
Q And, well, first of all, let me ask you, what is
propofol, what is it intended to do, and what are the side
effects?
A So, propofol is a sedative hypnotic agent. It comes
in a white creamy material, and we use it in anesthesia for
several purposes. Number one, and one of the most common, is
we use it as an induction agent, meaning we use it to put a
patient to sleep for general anesthesia.
Number two, it can be used on an infusion, meaning we
put it on a pump, and it's continually infused either in the
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operating or the ICU to keep a patient sleepy, but not
completely under anesthesia.
And, number three, we can use it in intermittent
doses where you give a small amount in the IV pending either
the surgeon giving a local anesthesia, or potentially one of
the other anesthesia personnel doing a pain block that would
then take over most of the relief of pain for the remainder of
the surgery.
Q And, according to Dr. Hwang's documentation, when was
the propofol given?
A The propofol appears to have be given at or shortly
after 1445 right about the 2:45 p.m. period.
Q And, based upon the documentation of Dr. Hwang in
this chart, is that an accurate representation of when the
propofol was given?
A No. Dr. Hwang indicated that he gave the propofol
prior to the podiatrist providing the local block in Mrs.
Cooke. We know from the nurse's, the circulating nurse's
documentation that the surgical incision of Dr. Assili occurred
at 1443. That was identified, and, also over in the upper
right-hand corner, Dr. Hwang himself indicated, which
corroborates the nurse's documentation that it occurred at
1443.
Dr. Assili indicated, in his operative note, and Dr.
Hwang corroborated in his deposition, that the local block by
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the surgeon, the numbing medicine put into the foot was given a
minute or two before at, approximately, 1441, and that Dr.
Hwang would have given the propofol prior to that, which would
make sense. You would give the propofol on a bolus to make the
patient sleepy. Dr. Hwang used the term that he wanted a brief
period of deep sedation before the block, and that then the
block would provide most of the pain relief during the surgery.
Q So, the fact that Dr. Hwang documented the propofol
on the flow sheet at around 1445 is inconsistent with when he
wrote the time of the incision, because the propofol had to be
given before the incision?
A Correct. It appears, based on the, the medical
record, and his, his deposition testimony to be inconsistent
with what he himself said would have been the time that he
administered it, closer to 1441 or 2:41 at or immediately prior
to Dr. Assili performing the block.
Q And, at this point, there's been no complication with
respect to anything going on with Ms. Cooke, is that fair?
A Correct, there had been no complication at that
point.
Q Now, in terms of the propofol, one of the side
effects can have to do with lowering the blood pressure,
correct?
A That is correct. propofol has three major side
effects. The first, after the anesthesiologist injects it,
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because it's going through a vein back towards the heart is
that it opens and dilates the veins. That's called
venodilitation, and that reduces the amount of fluid and blood
coming back to the heart, which in medicine we describe as
reducing the preload, and on average it reduces preload in an
adult by about 20 percent.
Second, now, as it comes back into the heart,
propofol in all of us, in all humans reduces the squeeze of the
heart anywhere from 15 to 30 percent. So, depending on the
patient's status, it reduces the squeeze.
Then, lastly, as it pumps out of the heart, it now
has pumped through the heart into the arterial system, and, of
course, the arteries determine your blood pressure. And
similarly to its affects on the vein that it's a dilator, it
directly acts as a dilator to the arteries, and on average it
lowers the blood pressure 20 to 25 percent when given.
Q And, Dr. Hwang, in his deposition, acknowledged that
this medication can cause a drop in blood pressure?
A Yes, that's true, he did.
Q And do you recall what he testified in deposition as
to what he recognized the drop in blood pressure could be?
A Yes. My recollection is that he testified that he
anticipated a 20 percent drop with the blood pressure.
Q And when we say a 20 percent drop, a 20 percent drop
from 97 over 35?
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A Correct. It would be a reduction from the blood
pressures at the time that the patient was receiving the
propofol medication.
Q Assuming, hypothetically, so we have an
understanding, if Ms. Cooke sustained a 20 percent drop from 97
over 35, is that a safe blood pressure?
A Absolutely, not. The 97 over 35 is already
abnormally low for a patient, such as Mrs. Cookie, who has end-
stage renal diabetes, and the kidney failure. If we then lower
it by another 20 percent, and lower that down to let's say the
70 over 25 range, that would be a critically low blood
pressure, coupled with the effects of fentanyl and propofol
that they can also reduce the patient's ability to breathe,
which would lower the oxygen level, and build up the carbon
dioxide, which would give you three events simultaneously, low
pressure, progressive low oxygen or breathing attempts, and a
higher co2, which would collectively cause instability in the
heart.
MR. HERSCHFELD: Your Honor, it might be a better
time --
THE COURT: Okay.
MR. HERSCHFELD: -- to break a this point.
THE COURT: Okay. Give me one second.
MR. HERSCHFELD: Unless you do want me to go forward.
THE COURT: No, no.
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MR. HERSCHFELD: Okay.
THE COURT: I think that's a good idea.
(Discussion off the record.)
THE COURT: All right. So, ladies and gentlemen,
this will be a good time to break now. So, it's 20 after. If
I can get you back on the floor at 20 of, we're going to break
somewhere a quarter to 1:00ish for lunch, and we'll take about
35, 40 minutes for lunch, instead of we usually take about an
hour and 20 minutes.
So, you're welcome to -- I would suggest you stay in
the building a) it's a mess outside; and 2) then you have to go
through security again. So, but, again, if you want to go down
to the cafeteria on this little break just take the elevator to
T, and wind your way around. Feel free to bring something back
to drink if you would like.
Please make sure your juror badges are prominently
displayed so everyone knows that you're here on a jury. Please
do not discuss this matter with anyone or allow anyone to
discuss it with you.
Doctor, I'm going to let you step down before you're
trapped there --
THE WITNESS: Yes. Thank you, Your Honor.
THE COURT: -- for a few minutes.
And if you need to get anything in the back, feel
free to do so, and activate your phones or whatever. Just make
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sure they're turned off when you come back.
Brian will come and get you. So, if you'll gather in
the lobby at 20 of, he'll come a get you as soon as we're
ready. Any pencils that need help, just push them off to the
side, and Brian will be jumping all over that.
And have a good break. We'll see you in a little
bit, okay?
(The jury left the courtroom.)
(Recess)
THE COURT: Okay, everybody can be seated. Somebody
has to blink, right? Okay, the witness is back on the witness
stand. Mr. Herschfeld.
MR. HERSCHFELD: Thank you, Your Honor.
JOHN WALTER SCHWEIGER
called as a witness on behalf of the plaintiff, having
previously been duly sworn, was examined and testified further
as follows:
DIRECT EXAMINATION (Continued)
BY MR. HERSCHFELD:
Q Doctor, we’re going to now start talking a little bit
about what happened in the operating room, and the event that
involved Ms. Cooke. You talked about having read Dr. Hwang’s
deposition.
A Yes, sir.
Q You also read Dr. Emamhosseini, who came in, and
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we’ll discuss that, but you read his deposition as to what he
recalled and what he did.
A That’s correct, I did.
Q And we’ve talked a little bit about this flow sheet,
but also Dr. Hwang issued or prepared a report, which has been
pre-marked as Plaintiff’s 2-A, which is page 114 of Plaintiff’s
Exhibit 2. And you have read Dr. Hwang’s report, and I just
want to ask you so the jury has a sense that, at the bottom it
says, it has Dr. Hwang’s name electronically signed, 8/22/2014,
19:56 EDT. Can you explain to the jury what that means?
A What that means is with an electronic medical record,
the computer identifies when the physician or nurse has
initiated the note, meaning to start the note and enter it into
the electronic database, and then the physician would sign the
note, confirming that the note is completed as is now fully
entered into the record.
And so in this case, after the events of the
afternoon unfolded, Dr. Hwang then put the note and confirmed
it at 7:56 p.m., which would be 19:56 military time, on the
21st of August.
Q Okay, and the time of the events we’re talking about
with Ms. Cooke took place, by the flow sheet --
A They occurred between 14:45 and 15:00 was the event
in the O.R. She entered the O.R. at 14:31, 2:31 in the
afternoon. Then there was that period of 14:31 to 14:45, of
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the vital signs and the initial titration, then the event, and
then a brief period thereafter where she stayed in the O.R. to
be stabilized.
Q So this note is being electronically signed at around
five hours after the event.
A That’s correct.
Q Okay. All right. And as we go through this, Doctor,
if you need for us to defer to one over the other, just please
let me know so we have the correct framework.
Based upon your review of these documents, other
documents in the Shady Grove record, Dr. Hwang’s deposition,
Dr. Emamhosseini’s deposition, can you tell the jury what you
understand was the flow of what transpired with respect to Ms.
Cooke?
A So from all of the data that I carefully reviewed,
Ms. Cooke entered operating room number nine at Shady Grove
Adventist Hospital at 14:31, which is 2:31 p.m., was
transferred to the operating table, monitors were placed, and
then the repeat of the vital signs were taken. That’s
indicated in the left-hand column.
Dr. Hwang has indicated at approximately 14:35, or
2:35 p.m. there had been the administration of one milliliter,
which equals 50 micrograms, of fentanyl, according to
deposition testimony, somewhere between 14:32 and 14:33.
Then they had to have the surgeon in the room to do
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the surgical time out, which corroborates between surgeon,
anesthesiologist, and the circulating nurse that this is the
right patient, the right procedure, the right, the correct
limb, and what have you.
Then there was the administration of propofol, which
according to Dr. Hwang would have occurred at some point at
around 14:41 or 14:42. Given the fact that there was then the
administration in that time interval of the local block, circa
14:41, by Dr. Assili, the podiatrist, which was injected into
the site of the surgery.
And based on the anesthesia record, the surgical
time, meaning when the surgeon started the operation, upper
right-hand corner, was at 14:43, which is 2:43 p.m. This is
corroborated by the circulating nurse, who also entered the
exact same time in the nursing record.
And then on the anesthesia record, at 14:45, if we
follow the line down into the five-minute window, so going a
little lower, that, we see the indication for the propofol, but
as we go lower than that, I think if we could move the
anesthesia record up.
Dr. Hwang has recorded a blood pressure at 14:45,
which is 2:45 p.m., for Ms. Cooke, of a systolic blood pressure
of approximately 70, and a diastolic of approximately 42. So
she started at 97/35. She’s now gotten the medication. We see
that the upper number has now gone down by about 20 percent,
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which is what Dr. Hwang testified might happen with the
propofol.
He then indicated that his first awareness that
something was wrong was when he noted that the pulse oximeter,
the unit that measures the oxygen, was not giving reliable
tracing, and there was a period of apnea. Apnea means that the
patient is no longer breathing.
And he wrote in the note, which was at page 114,
maybe we could go to there. It says on the second line down,
first major paragraph, the procedure started sooner thereafter,
period. After about a minute, comma, the patient became
apneic, meaning stopped breathing, and her saturation dropped.
The saturation would be the pulse oximeter, period.
Bag slash mask ventilation with 100 percent FIO2 was
begun.
Q Can you explain what that means so the jury
understands?
A Sure. So up until that point, as I mentioned
earlier, Ms. Cooke had oxygen through her nose, and the
detection of breathing through the CO2. But no one was
breathing for her; she was breathing on her own.
When a patient is seen to have no breathing, the
anesthesiologist has a mask, a face mask, that’s attached to
the anesthesia machine, through which the anesthesiologist can
put the mask over the face. And then there’s a bag that the
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anesthesiologist can squeeze, once they turn on the oxygen,
which allows the anesthesiologist to control the breathing for
the patient, having the mask over the face and doing a chin
lift. We then take over their breathing.
So Dr. Hwang was indicating that he began that
process, which is the conversion of nasal cannula to the bag
valve mask, and that initially there was a good end-tidal
tracing. So similar to the pulse ox, I’m sorry, the nasal
cannula, the anesthesia circuit, the mask and the circuit also
has the ability to detect carbon dioxide.
And he’s saying when he gave the first several
breaths, there was end-tidal CO2. He says saturation returned,
apparently temporarily, that the pulse oximeter gave a reading,
but then dropped off again.
And again, pulse oximetry, the probe on your finger
or your ear, it doesn’t just require oxygen in the blood. It
requires that you have pulsation. Without cardiac pumping of
blood to the finger, the ear, the toe, you can’t get the
reading, even if the oxygen is 100 percent, because you have
to, the machine has to see pulsation. That’s why you have the
waveform.
So at this time the saturation dropped off again, and
then he says the blood pressure cuff failed to record a blood
pressure. So we know at 14:45 that the blood pressure, the
upper number had gone down about 20 percent, to 70/42. And now
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he’s saying the next cycling, as the waveform on the pulse
oximetry has disappeared, inferring that there’s a problem with
cardiac output, the second test was the blood pressure, and no
blood pressure reading was obtained.
So those two pieces would infer to an
anesthesiologist that there’s a serious problem with the
patient’s heart function, and there may be an absence or
dramatic reduction in cardiac output.
And so he then said he recycled the blood pressure
cuff, to try to get another reading, but, and then he says
period, after this failed reading, comma, I called for help,
and Dr. Emamhosseini promptly arrived.
Dr. Emamhosseini was an anesthesiologist at Shady
Grove, who on that day, 21st August, was working as the floor
manager, which is a specific term we use in anesthesia. It’s
the one anesthesiologist that day in the operating room, who’s
not assigned in an O.R. to take care of the patient, but rather
is circulating to provide help to the other anesthesiologists
if they need a second set of hands, or if there’s a problem
before or after surgery. Because they’re not in an operating
room, they can be the problem-solver.
Q Before you continue, Doctor, let me ask you, does the
calling of Dr. Emamhosseini, is that the same as a code blue?
A It is not.
Q Okay, can you explain to the jury if a code blue had
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been called, what kind of response, what kind of personnel,
what would have occurred if a code had been called?
A So a code response, also known as a code blue, is a
hospital-wide call for help, indicating that a patient has
either had a cessation of heart function, cardiac arrest; a
cessation of breathing, respiratory arrest; or both, a cardio-
pulmonary arrest.
It triggers an immediate response from any available
personnel. Hospitals usually have a code team, when I’m in the
ICU, I’m on the code team, to immediately respond, usually
within 60 seconds, as well as an ICU nurse or two, pharmacists,
respiratory therapists, in the operating room, other
anesthesiologists immediately come to the room.
And then a nurse would grab a piece of paper known as
a code blue flow sheet, and begin recording the patient’s vital
signs and the interventions, because clearly the doctor caring
for the patient doesn’t have time to record data. He or she is
caring for the patient, so an independent person would record
the events as they unfold, that’s called a scribe, during the
code blue.
Q Okay. So let’s get back to what actually did happen.
A Correct.
Q So you mentioned Dr. Emamhosseini arrived.
A Yes, so there was a call for help. Dr. Hwang
testified he asked the circulating nurse, that’s the nurse
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who’s not scrubbed in to the surgery itself, but rather is
walking in the O.R. to get the surgical team equipment, or help
the anesthesiologist, or make phone calls. He instructed the
circulator to notify Dr. Emamhosseini, either through the
walkie-talkie that was used, called Vocera, at Shady Grove, or
the beeper, it wasn’t clear by recollection which of those,
that he wanted Dr. Emamhosseini to come into the operating
room.
Dr. Emamhosseini said that after being notified, he
came in within about a minute of having been notified, and
entered operating room nine. At that point Dr. Hwang was still
providing mask ventilation with 100 percent oxygen to Ms.
Cooke.
And he states in his note, I was not able to feel a
pulse, meaning Dr. Hwang was not able to feel a pulse. And
then that was confirmed, when Dr. Emamhosseini entered the room
he felt for a pulse, according to Dr. Hwang, could not feel a
pulse, and at that point it was clear Ms. Cooke was in cardiac
arrest.
So once all of that had occurred, at that point then
Dr. Hwang testified and wrote in his note that he temporarily
stopped oxygenating the patient. He then --
Q Why?
A Well, because he only had two hands. If he’s going
to grab the adrenaline, the epinephrine at that point, there
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would be a break in the ability for him to ventilate the
patient.
Q Based upon what you reviewed between the testimony of
Dr. Hwang and Dr. Emamhosseini, what role did Dr. Emamhosseini
have in this event, other than confirming that there was no
pulse?
A In Dr. Emamhosseini’s sworn deposition he had no
recollection of actively engaging in interventions to
resuscitate Ms. Cooke. He didn’t really have much recall at
all of the day or the events, and he didn’t recall himself
being involved in giving medications to Ms. Cooke, or in doing
CPR, other than what was noted by Dr. Hwang, that he felt for
the pulse, corroborating that Dr. Hwang’s detection of no pulse
was correct.
And at that point Dr. Hwang himself administered one
milligram of epinephrine to Ms. Cooke, which --
Q Why? What’s the epinephrine for?
A Yes, so on the anesthesia record it said pulseless
electrical activity, PEA. In PEA, there’s a complete failure
of the heart to pump. The heart no longer has contraction, and
is no longer sending blood either to the lungs or to the rest
of the body.
However, there’s still some electrical activity on
the monitor, and that’s why we use the term pulseless. There’s
no pulse anywhere in the body, electrical activity. That’s an
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emergency.
And the American Heart Association, they have
algorithms as part of both basic and advanced cardiac life
support, that says when you have PEA, the first step, other
than providing oxygen, is to administer epinephrine, because
epinephrine will start to squeeze the blood vessels down, and
theoretically increase the flow back to the heart, and also in
essence chemically jump-start the heart, because it’s
adrenaline, to start to get a new heartbeat going.
And in fact on the anesthesia record, although we see
the epinephrine there, given one milligram at some point
between 14:50 and 14:55, if you then take the laser and come
down, we can see when it hit, because again, it works by
squeezing the arteries down, and increasing the spontaneous
pacemaker of the heart. So if epinephrine’s given we expect to
see tachycardia, a heart rate greater than 120, and a high
blood pressure.
And in fact at 14:55 Dr. Hwang has recorded the upper
blood pressure at 170. He then drew a line, which he was using
to record heart rates, and it appears the heart rate was
temporarily at some point greater than 160, and the lower blood
pressure was now up to 90, so that would seem indicative,
excuse me, of the heart rate and blood pressure reflecting the
effects of epinephrine having been given previously.
Q Okay. Let’s go back to the --
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A And then in the note it says that after the
epinephrine was given, CPR was begun for about one minute. CPR
is compressing the chest over the breastbone, closed chest
compressions. That works both to circulate the blood, but also
to circulate the epinephrine through the heart, to get the
adrenaline to the various parts of the heart.
Q Doctor, before you go on, I think you indicated, who
gave the epinephrine, based on what you reviewed?
A Dr. Hwang gave the epinephrine.
Q Okay, and who, based on what you reviewed, who did
the CPR?
A It’s completely unclear. There was no code blue
sheet ever recorded on Ms. Cooke, so there was no indication of
who performed CPR, whether it was Dr. Emamhosseini, whether it
was a circulating nurse. There was no code team called,
because there was no code, so the actual person doing CPR, it’s
completely unclear.
Q Okay.
A It would not have been Dr. Hwang, because Dr. Hwang
was at the head of the bed, providing the oxygen, so he could
not have reached over to do effective CPR. It had to have been
someone else in the operating room.
And then the note says there was prompt return of the
SaO2, that’s the pulse ox tracing, after the epinephrine was
given, and a blood pressure reading of about 170/90 was
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obtained. Well, that’s consistent with the anesthesia record I
just pointed out, that the blood pressure after the epinephrine
went up to 170/90, with a heart rate in the 130 range.
And then thereafter it says the patient received bag
slash mask. Bag is the anesthesia bag with oxygen. Mask is
the face mask. With 100 percent FIO2. That’s a contraction.
FIO2 stands for the inspired fractional percentage of oxygen,
so in this case it was 100 percent.
And then naloxone, 0.08 milligrams, was given IV.
And naloxone is also known as Narcan. Naloxone, the Narcan, is
an antidote. It’s a reversal agent for the respiratory
depressing effects of fentanyl or all opioids. So if a patient
receives too much fentanyl and has respiratory depression, the
way to reverse it in the brain and in the nervous system is to
give naloxone, which works to displace the narcotic from the
opioid receptor, and thus will allow the patient to then start
breathing on their own again. And it has some benefit also in
terms of the effects on the heart and the blood vessels.
Q And according to Dr. Hwang’s flow sheet, what time
did he document that the Narcan was administered?
A The flow sheet indicates that was given in the time
interval around 15:00, or 3:00 p.m., several minutes after the
epinephrine had been given.
Q So when you say several, based on what you told the
jury earlier about these five-minute block intervals below, are
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you able to tell the jury approximately what the time
difference between these two medications?
A In looking at the anesthesia record, and both the 15
and five-minute window, it looks like it was some point between
five and seven minutes after the epinephrine was administered.
And then just finishing up on that note, Dr. Hwang
records soon afterwards, referring to the naloxone, the Narcan,
return of spontaneous ventilation occurred, meaning once the
Narcan was administered and circulated into the brain and
nervous system, at that point it appeared Ms. Cooke started
breathing on her own. Up until that point, Dr. Hwang had to do
the breathing through the mask and the anesthesia machine.
After the Narcan came, then he started to begin to see she was
breathing on her own. So he says over the next 10 to 15
minutes, she was observed in the operating room, and vital
signs normalized.
And again we see from the anesthesia record that
often what happens after you give the epinephrine, the
adrenaline, heart rate and blood pressure surges. The
epinephrine will last five to 10 minutes, and then you’ll see a
normalization. The blood pressure will come back into the
normal zone, as the epinephrine is diffused throughout the
remainder of the body.
And you can see with each five-minute increment, both
the upper and lower number, the systolic and diastolic blood
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pressure, return back to the baseline, the last blood pressure
being around 108/60. And then the heart rate also began to go
down from where it was initially, and then reduced itself down
to about 106 or so, which is consistent with Dr. Hwang’s note.
And then it says she was placed on a simple face
mask, so at that point Dr. Hwang had the anesthesia mask with
the circuit. He took that off, and then he replaced it with a
face mask attached to an oxygen supply. However, that
technique, which we utilize, doesn’t allow the anesthesiologist
to breathe for the patient. It’s not attached to the bag.
It’s simply attached to the anesthesia machine, much like the
nasal cannula, so the patient has to breathe in on their own,
and exhale on their own, but they’re getting supplemental
oxygen through the face mask.
And it says during that period when the face mask was
on, she maintained, she being Ms. Cooke, the saturation, the
SaO2, in the mid-90s. Usually a normal is 90 to 100; 100 is
perfect, anything less than 90 is hypoxia, meaning reduced
oxygen in the blood. So she was in the mid-90s at that point.
And then it says cardiac enzymes and BMP. That’s the
basic metabolic profile, which is a blood test, to look to see
whether or not her kidneys had caused some electrolyte
abnormality to cause her heart to stop, were ordered and sent
from the O.R. to the laboratory at Shady Grove Adventist
Hospital.
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When the PACU, PACU is the post anesthesia care unit,
most people know it as the recovery room, but we use the PACU
as the nomenclature, recovery room spot was available, so when
the nurses said we have the spot, the patient was then brought
to the PACU with the face mask oxygen.
Vital signs upon arrival in the PACU showed a blood
pressure of 103/58, which is somewhat consistent with the last
blood pressure that Dr. Hwang recorded on the anesthesia record
in the O.R., a heart rate of 112, respiratory rate of 19, a
saturation of 98, and a temperature of 36.2, which is just shy
of 98.6, so it’s a little, just a smidge lower than normal.
And then an EKG was obtained, which showed minimal
changes from pre-op tracing, so --
Q What’s the significance of that?
A So whenever a patient has a cardiac or respiratory
arrest, you want to make sure it’s not an acute heart attack,
particularly somebody who had heart surgery 10 years before.
So the first step is to do an EKG, and not only look at that
EKG, but also compare it to what the EKG was before, because
many of these patients, they have some minor abnormalities on
the EKG, so the doctor is comparing the new post-event to the
pre-operative one, but there did not appear to be any changes.
Q And what does that indicate in terms of her having a
significant cardiac event?
A It speaks against a primary cardiac event. It also
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speaks against the kidneys building up potassium, causing an
event, because if you have dangerous high potassium, you see a
very unique finding on the 12-lead EKG called tenting of the T-
waves. It looks like you have a pyramid there, and those were
not present on either EKG, the before or after, which would
speak against the kidneys being the cause of the cardiac arrest
in the O.R.
And then it says after she did not demonstrate
spontaneous awakening. So at that point they were watching her
in the recovery room, hopeful that her eyes would open and she
would interact, but that did not occur after 20 to 30 minutes.
So then an arterial blood gas given from the wrist, the artery,
was drawn and sent to the respiratory therapy lab, to make sure
that there wasn’t a problem with the oxygen, the carbon
dioxide, or the blood chemistry, that may have gone undetected
by the other monitor.
And in fact that was measured at 16:14. There’s a
blood gas assessment. Dr. Hwang mentioned it. He said that
the blood gas showed a pH of 7.4, and a normal PaCO2. The CO2
in Ms. Cooke at the time it was measured was 41.9. Normal is
36 to 44, so it was right in the middle, it was normal. And
the pH also, normal is 7.4, where you and I live. That’s the
normal pH, so it did not appear to be abnormal.
Also her bicarbonate level, which is the amount of
buffer in the blood, that is abnormal in certain disease states
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like infection, was totally normal. It was 26.2.
And also they measured, just to corroborate what I
said about the EKG, because it’s not uncommon for high
potassium to cause a cardiac event in a kidney failure patient,
and usually that occurs if the potassium is greater than 6.0,
so they measured it on the blood gas and it was 3.2, which is
actually lower than normal. Normal is 3.5 to 5.
Q Based on these various numbers that you’ve just gone
through with the jury, did Ms. Cooke have metabolic acidosis?
A She did not, no. She had a completely normal pH.
And the way that doctors, not Dr. Schweiger, all doctors,
determine metabolic acidosis, is by looking at the bicarbonate
level and seeing if that’s normal. Normal is 22 to 28. Hers
was 26. That excludes metabolic acidosis.
Q Let’s explain what is metabolic acidosis, because I
don't think the jury has heard that term.
A Yes, so the way I tell the first-year medical
students about the blood acid base is that it’s like the old
seesaw or teeter-totter we had as kids. The body wants the
teeter-totter to be straight. It doesn’t want it tipped too
high or too low in either direction.
The way that the body gets rid of acid is one of two
ways. For the acute phase, over minutes or hours, it’s through
the lung. We get rid of it through carbon dioxide, blowing the
acid out.
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If something happens to prevent our lungs from
blowing it out, we call that respiratory acidosis, and that
means that the carbon dioxide in the blood, rather be 40, is
50, 60, 70, 80, 100. Primarily the CO2 is up. The pH then
would go down, in the opposite direction.
Over days or weeks, as the body has to get rid of
poison and acid, it goes out through the kidney. We urinate
out the acid.
So we have a quick fix, the lung. We have a chronic
fix, the kidney.
If you have metabolic acidosis, I have too much acid,
I drown myself in orange juice, or I’m running a marathon and I
build up too much acid, then the body has a defense mechanism.
It has bicarbonate in the blood, as well as hemoglobin.
Bicarbonate is the first responder that goes and it neutralizes
the acid, the hydrogen, and makes water and carbon dioxide.
If that system fails because you’ve brought the
bicarbonate to low levels or non-existent, then the hemoglobin,
the red blood cell, can act as a secondary buffer.
But you cannot have metabolic acidosis with a
completely normal bicarbonate. It’s simply biochemically
impossible, based on the laws of the human body.
Q Did Dr. Hwang indicate in his note, after recording
the pH and the PaCO2, that in his view Ms. Cooke suffered any
type of metabolic acidosis?
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A No, sir. In the note he does not make any mention
that he felt that Ms. Cooke was experiencing metabolic
acidosis, either at the beginning or during the arrest itself.
Q Okay. Doctor, I want to try to move us forward a
little bit.
A Sure. Yes, sir.
Q Ms. Cooke was moved into the PACU, the recovery room.
A That’s correct.
Q You talked about that. She was stabilized there for
a period of time, and then ultimately moved into the intensive
care unit.
A Yes, Dr. Hwang correctly asked for the doctors who
were caring for Ms. Cooke to come and evaluate her in the
recovery room. And a series of doctors, two heart doctors who
had known her, the kidney doctor, and the hospitalist, all came
and examined Ms. Cooke in the recovery room, hoping that they
could find something that would be rapidly reversible, or that
she would wake up. Unfortunately she did not.
So then Dr. Johnson, who was the hospitalist, who was
caring for Ms. Cooke, appropriately and correctly asked for an
ICU room to transfer Ms. Cooke to the intensive care unit,
knowing that she would have to be observed, and also wanting
the critical care doctor, a doctor like me in the ICU, to then
assume care in the ICU, because there was some concern not only
that she was not waking up, but that she might need a breathing
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tube later on, and be put on a ventilator.
Q And you know from the records Ms. Cooke survived for
eight more days?
A Correct. She did not die until 29th August, so it
was eight days later.
Q And in the interim there were various studies, and
we’re going to talk about just a couple of them. There were
two CT scans.
A That’s correct. Yes, sir.
Q The CT scans, what did they, what are they looking
for, and what did they find?
A So when a patient loses consciousness, the first
thing that an ICU doctor would want to know is has the patient
experienced a bleed in their head spontaneously, a blood vessel
bursting, particularly in a patient who has a known history of
high blood pressure, we call that intracranial hemorrhage,
because that’s something we can fix with neurosurgery. We can
go in and drain the blood out.
Or has the patient suffered a massive stroke, either
because they had a blood clot in the brain, which often we can
fix too, with a catheter in the brain to dissolve the clot, or
because something broke off and went to the brain.
The CT scans did not show that there was an acute
bleed in the brain, nor was there specific evidence on the CT
scan, of that may have caused Ms. Cooke to have the event.
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Q CT scans, are they technically done to evaluate
whether a patient has had a hypoxic or anoxic event?
A No, sir. In my experience working in the
neurocritical care, where we take these patients and evaluate
them for brain injury, the CT scan is a very poor study. It’s
excellent to detect blood. It’s excellent to look for an acute
infarction. But in terms of its ability to assess what’s known
as global anoxia or hypoxia of the brain, it’s a very poor
study in the first 24 hours. And after 24 to 36 hours, we see
in about 20 percent, so one in five patients, evidence of
what’s called dissolution of the gray and white matter of the
brain, literally the border junction between the gray matter
and the white matter dissolves. But again, that’s unreliable.
It’s only in about 20 percent of the patients.
Q An MRI was done.
A Correct. The next step that would be done after a CT
scan, to look for acute injury, is then to look at magnetic
resonance imaging, or MRI. This is much more sophisticated to
look at the brain or spinal tissue itself. MRI is excellent
for soft tissue, much less so for the bone or bony structures.
Q And Doctor, showing you what’s page 342 of Exhibit 2,
is that the MRI report? Take your time, I know --
A I found it.
Q Okay. Is that the MRI report?
A Yes, sir.
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Q And so the jury understands, when was that study
performed?
A The study, you’ll see in the upper center, was done
on August 22nd, 2014 at 10:48 in the morning.
Q Less than 24 hours after this incident?
A That’s correct.
Q Okay. And I don't want to get into all of the
imaging issues, but in a nutshell, what did they find on the
MRI?
A So just hitting the key points, under the word
findings, what they noticed were that there were two, and there
they misspelled it, it should be T-W-O, the number two, foci of
restricted diffusion. That basically means there is areas
small but of limited blood flow that could be associated in the
parietal lobe on (unintelligible) that’s the side of the head
towards the top, that would be consistent with some transient
or ischemia, some limitation of blood flow.
There also was chronic left cerebellar, so in the
back of the head. The cerebellum controls our movement, our
motion, our ability to walk. There was some atrophy or
encephalomalacia, meaning that the brain had somewhat shrunk
there, which happens in age. That’s not uncommon.
And below that it says there was mild diffuse
cerebral atrophy. The cerebrum is the front of the brain, up
to the mid-part. Again, similar to what had been seen in the
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back. With age and high blood pressure, she did have some
shrinking of the brain.
But they did not see water on the brain. That’s the
hydrocephalus. There were no masses, so there was no brain
tumor.
There was no shift, meaning blood on one side pushing
the brain to the other.
And essentially their impression, which is now the
radiologist, who is expert at reading these, said that there
were two small foci of restricted diffusion in the left
parietal lobe, compatible with acute infarct.
So these appeared newer rather than older, but they
were very small. There were no other areas of restricted
diffusion seen.
Q Does this MRI confirm that Ms. Cooke suffered anoxic
encephalopathy?
A No, the MRI itself is not used to confirm anoxic or
hypoxemic encephalopathy. In fact we do not use it when we do
brain death certification in the ICU. We’re not allowed to use
the MRI, because it’s an unreliable test.
Q Doctor, do you have an opinion to a reasonable degree
of medical probability whether Delores Cooke suffered brain
injury as a result of the event on August 21, 2014?
A Yes. Within a reasonable degree of medical
probability, having reviewed all of the medical records and the
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sworn deposition testimony, I’ve come to the conclusion that
Delores Cooke did suffer what’s known as anoxic or hypoxemic
ischemic encephalopathy, meaning a lack of oxygen to the brain
during the event, which caused them permanent brain injury.
Q Now the term, the jury will see on the chart when
they get to deliberate, and they’ll see, is the term anoxic
encephalopathy. Some places it’s hypoxic encephalopathy,
hypoxic ischemic encephalopathy. Can you explain the
similarity or dissimilarities among those terms?
A Certainly. So 30 years ago when I was in medical
school, we only used the term anoxic encephalopathy. Anoxia
means complete lack of oxygen to the brain.
What was then realized that you can have a
significant reduction in oxygen and still have bad brain
injury, so 20 years ago we started using the term hypoxic
encephalopathy, meaning dramatic reduction that causes brain
injury, but you don’t have the complete absence of oxygen.
Then 10 to 15 years ago it was realized that it’s a
combination of both the reduced oxygen and the reduced blood
flow to the head, so then neurocritical care people started
using the term hypoxic, low oxygen, ischemic reduced blood flow
encephalopathy, pointing out that it’s a combination of low
oxygen and low blood flow that causes the permanent brain
injury.
So today, in 2014 and up through today, most ICU
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doctors, neurologists (unintelligible) will use the three terms
somewhat interchangeably. When we use anoxic, hypoxic, hypoxic
ischemic encephalopathy, we’re commonly and routinely referring
to the same process.
Q Doctor, can you tell the jury the basis of your
opinion as to why, in your opinion, Ms. Cooke suffered anoxic
encephalopathy?
A First was the immediate lack of return of
neurological function. If the patient has an (unintelligible)
respiratory event, and is without oxygen for five minutes, that
exhausts the reserve we have to the brain. After five minutes
there’s going to be some element of brain injury, unless that
person were to fall in a frozen lake and be cooled, or somehow
in surgery we would cool them. Not true here. You’re not
doing that for Ms. Cooke.
Second of all, there was on the anesthesia record, a
period that appeared on the anesthesia record of 15 minutes in
which Dr. Hwang did not record a saturation, so it appeared
that there was a period beyond one or two minutes, in which Ms.
Cooke was without significant oxygen.
Also there was a blood pressure at 14:45 and the next
one at 14:55, but in that 10-minute window between that, there
was no significant documentation of adequate blood pressure,
irrespective of the fact that Dr. Hwang testified that he,
there was only CPR for one or two minutes.
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Also then one would have to exclude what else would
be in the differential diagnosis. Well, both the neurologist
and the CT and brain, it eliminated brain bleed. Ms. Cooke
definitely did not have a major blood hemorrhage into her
brain. That was excluded.
Number two, she had two very small areas of stroke in
the parietal lobe. That does not control consciousness, so
that, even if she had that as part of the event, wouldn’t
explain why a patient would not wake up. You have to have a
much more diffuse injury.
Next, she was a renal failure patient. Patients can
get toxic or metabolic properties, meaning there are so many
poisons in the body that it affects the brain.
But that results in delirium, and is reversible. So
if you then give the patient dialysis, remove those toxins, the
patient wakes up, either partially or completely.
There was no such effect in Ms. Cooke. She was at
Shady Grove for eight days after the event. With the exception
of some limited eye movements when she was stimulated, and
maybe one description by the daughter of a hand grasp, none of
the doctors that examined her in the ICU were able to elicit a
normal neurological exam, or even a partial motor sensory exam.
So that would exclude the toxic metabolic, which is usually
delirium and reversibility.
And then lastly, Dr. Chen, C-H-E-N, who was the
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neurologist who was first consulted and performed a
comprehensive exam after the event, initially attributed Ms.
Cooke’s lack of awakening to the fentanyl and the propofol,
stating that the metabolic component was that she couldn’t
clear those medicines. But that would not be consistent with
those medicines.
As I mentioned earlier today, fentanyl has a half-
life of one hour. Even in renal failure, there’s not much
cumulative effect.
Secondly, she was given propofol. propofol’s half-
life is six to eight minutes, and goes away. It’s like a light
switch, on/off, so you would not stay in a coma from eight
hours.
I use both of those medicines in the ICU all the
time. They would not keep somebody in a coma even for 12
hours, let alone for eight days, so I excluded that.
So after weighing all of the evidence, I came to the
conclusion that Ms. Cooke experienced hypoxic ischemic
encephalopathy due to a reduction in the oxygen from the apnea,
a reduction in the blood flow during the time she had PA.
And then equally important and not to be forgotten,
that she started with a critically low hemoglobin, and that had
not been corrected with the transfusion of the two units,
leaving her vulnerable that when the oxygen went down and the
blood pressure, and not having enough of those choo-choo trains
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to carry the oxygen, it would dramatically reduce the amount of
oxygen to her brain.
Q Doctor, do you have an opinion to a reasonable degree
of medical probability, as to the cause for Ms. Cooke’s death?
A Yes.
Q And what is your opinion?
A Within a reasonable degree of medical probability,
the cause of Ms. Cooke’s death was the hypoxemic ischemic
encephalopathy, which left Ms. Cooke in a persistent vegetative
state. There are multiple notes from the ICU doctors and other
doctors, in talking to the family, that Ms. Cooke had expressed
her desire not to be left on permanent life support or
machines, so after eight days, or actually after I believe it
was six and a half days, the decision was then made in
consultation with the ICU doctors and the family, to make Ms.
Cooke what’s known as comfort care or palliative care, to allow
the natural process of dying at that point.
And then finally, on the 29th of August, her heart
completely ceased, and she was declared dead by Dr. Klein
(phonetic sp.) in the ICU.
Q Doctor, do you have an opinion, to a reasonable
degree of medical probability, whether the anesthesia delivered
by Dr. Hwang was a cause for Ms. Cooke’s death on August 29th,
2014?
A Yes, I do have an opinion.
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Q And what is your opinion?
A Within a reasonable degree of medical probability,
the anesthesia management of Dr. Hwang was a cause and did
contribute to the cardiac arrest intra (phonetic sp.) and the
subsequent development of the hypoxemic ischemic
encephalopathy, which ultimately led to her death on August
29th, 2014.
Q Doctor, based on your review of the medical records,
deposition, your education, training, and experience in the
field of anesthesiology, do you have an opinion, to a
reasonable degree of medical probability, whether Dr. Hwang
breached the standard of care with respect to his treatment and
care of Ms. Cooke, as delivered on August 21, 2014?
A Yes, sir, I do have an opinion.
Q And what is that opinion?
A My opinion is, within a reasonable degree of medical
probability, that Dr. Hwang, on August 21st, 2014, in the care
of Ms. Cooke, did breach the applicable standard of care for an
anesthesiologist in similar like situation caring for Ms.
Cooke.
Q Would you identify the specific breaches that you
hold to a reasonable degree of probability, as to the care
rendered by Dr. Hwang?
MR. MITCHELL: Your Honor, haven’t we just done that
for the last two and a half hours?
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THE COURT: I don’t believe so. I think he’s asked
these questions --
MR. MITCHELL: Okay.
THE COURT: -- but he’s entitled to ask for his
opinion. Overruled.
BY MR. HERSCHFELD:
Q Go ahead, Doctor.
A The specific breaches would be number one, the
failure of Dr. Hwang to perform an adequate and comprehensive
assessment of Ms. Cooke in the pre-op phase, to identify her
risk factors for subsequent deterioration at the onset of
anesthesia.
Number two would be the failure of Dr. Hwang to
realize that the blood pressure he obtained of 97/35 at
baseline was significantly lower than Ms. Cooke’s regular blood
pressure, or for that matter, even the blood pressure that had
been measured 50 minutes earlier by the nurses, prior to being
brought to the operating room.
Number three was the failure of Dr. Hwang to
understand that the hemoglobin of 6.9 grams per deciliter, and
that the corresponding hematocrit of 21.5 percent, was
critically low, and required the completion of the order of Dr.
Johnson of the two units of packed red blood cells to restore
the circulating blood volume before, and the blood pressure,
before the onset of the anesthesia and the surgery.
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The fourth was the failure of Dr. Hwang to obtain the
anesthesia record from April of 2014, provided in the same
institution at Shady Grove Adventist Hospital, and look at how
Ms. Cooke responded to a similar anesthetic, which had that
been reviewed, did show a significant reduction of about 20 to
25 percent in the blood pressure back in April, albeit Ms.
Cooke started at much higher blood pressure then, so the
reduction did not result in any problem.
Number five was the failure of Dr. Hwang to
immediately call a code response into the O.R., and obtain the
appropriate doctors and personnel to assist him within a
minute, so that he would have the additional assistance to
appropriately resuscitate Ms. Cooke during this event, as well
as having the ancillary staff, like respiratory, pharmacy,
nurses, that could provide the appropriate documentation.
And finally number six was the failure of Dr. Hwang
to provide the breathing tube into Ms. Cooke during and
immediately after the recognition that she had developed apnea
and inefficient breathing. Not only would that have guaranteed
the delivery of 100 percent oxygen to her windpipe and lungs,
but it then would have freed up Dr. Hwang’s hands to do other
events, rather than hold the mask and squeeze the bag on the
anesthesia machine, since once the endotracheal tube is placed
in a patient who’s in cardiac arrest, the patient can then be
maintained either on the anesthesia machine through the
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automatic ventilator going up and down, not requiring the
anesthesiologist to breathe, or when a respiratory therapist
comes into the room, or another anesthesia provider. They
could take over squeezing the bag while the lead
anesthesiologist is then the team leader for the resuscitation
effort.
Q Doctor, let me ask you, because we have now at length
your opinions on causation, to the standard of care breaches.
Doctor, do you have an opinion, to a reasonable
degree of medical probability, as to the cause for any injury
sustained by Ms. Cooke as a result of the first breach you’ve
identified, the failure to adequately assess, have an adequate
pre-operative assessment before?
A Yes. The failure of Dr. Hwang to adequately and
comprehensively assess Ms. Cooke resulted in Ms. Cooke being
brought back to the operating room without, number one, the
prior anesthesia record being identified or obtained.
Number two, without completion of either the first
unit of blood, which was running, or the second unit, which had
not even been hung, nor was there any determination that even
whatever blood got into her had significantly increased the
hemoglobin and hematocrit to where Dr. Johnson, the
hospitalist, had wanted it.
And also the awareness, as we’ll talk about in
deviation number two, that the blood pressure was markedly low
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compared to both the August 19th through 21st hospitalization,
where her blood pressures were higher, as well as her normal
blood pressure, which as I mentioned earlier today was
significantly higher, using the 130 to 140 over 70 to 80 range.
And of course that then predisposed Ms. Cooke to have
an adverse event once the fentanyl was administered and the
propofol, which as Dr. Hwang himself said, caused apnea,
cessation of breathing, drop in pulse oximetry. That low
oxygen then triggered her heart, which was only working at 30
to 35 percent, to basically go into pulseless electrical
activity and then not return until the adrenaline was pumped
into her, and eventually the Narcan, to restore her spontaneous
breathing.
Q In terms of the failure to look at the prior record,
how, in what way did that cause injury to Ms. Cooke?
A Had Dr. Hwang looked at the prior record, it would
have been obvious very quickly. Number one, Ms. Cooke’s
baseline blood pressure was dramatically higher. At that time,
April 14th of 2014, her baseline blood pressure I believe was
143/71, compared now on August 21st, where it’s 97/35. That’s
a notable change, not just a simple variation.
Second, yes, the anesthesiologist in April did give
similar drugs, fentanyl and propofol, but there was a 20 to 25
percent reduction in the systolic blood pressure, even back in
April.
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But as I mentioned, she had started at a higher blood
pressure, so she had a margin of error to tolerate that.
Obviously starting at a much lower blood pressure in August,
she could not tolerate the drop. Plus the other distinction
was she was also receiving the fentanyl pain patches, so she
was getting some fentanyl into her blood through the skin, and
then had the additional fentanyl and the additional propofol
administered intravenously.
Q But Doctor, weren’t the doses of fentanyl and
propofol higher or greater in April than they were in August?
A They were, actually. In April she received I believe
100 micrograms, double the dose, and the propofol, actually a
total over the period, although the surgery was longer, of 60
milligrams.
But again, when you look at the record, as I
mentioned, she started at a higher blood pressure. She also
had a higher hemoglobin and hematocrit rate. Her blood counts
were higher. And at that point she was not receiving as high a
dose of fentanyl patch, if at all.
Q Doctor, in your opinion, or do you have an opinion,
to a reasonable degree of medical probability, as to the cause
for any injuries sustained by Ms. Cooke as a result of the
failure by Dr. Hwang to call a code when the event arose in the
operating room?
A Yes, I do have an opinion.
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Q And what is that opinion?
A The failure to call a code as soon as Dr. Hwang
became aware the Ms. Cooke was experiencing apnea, problems
with the pulse oximetry, and then a failure of the blood
pressure cuff to measure blood pressure, delayed the
appropriate resuscitation in terms of Ms. Cooke, both in terms
of having personnel enter the room, delayed the administration
of epinephrine, because the epinephrine, by Dr. Hwang’s own
testimony, was not given until his colleague the floor manager,
Dr. Emamhosseini, entered and detected a no pulse, confirming
his detection.
Obviously if you have a code blue, people are pouring
in the O.R. That’s going to be accelerated. Also you’re going
to have somebody to assist you with the ventilation while
you’re drawing up the epinephrine, or they can give the
epinephrine, because you have a whole team that’s trained to
provide resuscitation.
Q Doctor, do you have an opinion, to a reasonable
degree of medical probability, as to the cause of any injuries
sustained by Ms. Cooke as a result of Dr. Hwang’s decision not
to intubate?
A Yes, I do have an opinion.
Q And what is that opinion?
A The failure to provide artificial ventilation through
an endotracheal tube at the time that Dr. Hwang detected that
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Ms. Cooke was no longer breathing, although I’m not critical of
the first minute or two that he provided the bag mask, that can
be justified certainly, and I would do that in my own situation
to start that process.
But thereafter, the process of looking in the throat
and placing the breathing tube, for a trained anesthesiologist,
routinely takes 15 to 30 seconds. Now you have a defined
breathing tube in the lung, you know, in the windpipe through
the vocal cords, through which you can now guarantee the
delivery of 100 percent oxygen.
You also have the ability, because it’s sitting in
the throat, to put the patient on the ventilator, which frees
up the anesthesiologist’s hands to direct the remainder of the
resuscitation.
And although in Ms. Cooke’s case there was no
evidence of soiling of the lung, it also protects during a code
when there’s CPR, or otherwise any vomiting getting in the
lungs. In Ms. Cooke’s there was no such event.
Q Doctor, do you have an opinion, if Dr. Hwang had
called a code blue, whether she would have suffered the degree
of anoxic encephalopathy that she did in fact suffer?
A I do have an opinion.
Q And what is that opinion?
A My opinion, within a reasonable degree of medical
probability, is that had Dr. Hwang called a code blue response
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into operating room nine immediately, and brought in the
appropriate personnel, that the severity or magnitude of the
anoxic encephalopathy or hypoxemic encephalopathy would have
been minimized.
And although there may have been some post-operative
neurocognitive changes, Ms. Cooke would not have progressed to
develop essentially hypoxic encephalopathy, and ultimately be
in a persistent vegetative state, that then resulted in her
family withdrawing support.
Q Doctor, in your opinion, or do you have an opinion,
if Dr. Hwang’s failure to intubate Ms. Cooke, had he, I’m
sorry, I apologize, had he opted to intubate Ms. Cooke, would
it have led to a different outcome in terms of the extent of
her anoxic encephalopathy?
A Yes, I do have an opinion.
Q And what is that opinion?
A That within a reasonable degree of medical
probability, had Dr. Hwang immediately placed the breathing
tube, provided 100 percent oxygen, and then followed the
American cardiac, American Heart Association cardiac life
support algorithm, it would have minimized the severity of Ms.
Cooke’s brain injury.
Q Doctor, you have read the deposition of Dr. Domson
(phonetic sp.), correct?
A I have, yes, sir.
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Q And you understand that Dr. Domson is of the opinion
that the infection from her toe during the course of surgery
resulted in the development of sepsis and sepsis shock, septic
shock, resulting in pulseless electrical activity, then
respiratory depression, causing metabolic encephalopathy.
First of all, do you have that understanding, having
read his deposition?
A Yes. In reading Dr. Domson’s deposition testimony,
he did put forth that theory of his explanation why Ms. Cooke
experienced the cardiorespiratory arrest during the anesthetic.
Q Do you agree or disagree with his theory as to what
transpired?
A I respectfully but completely disagree with Dr.
Domson’s theory. The evidence in the chart does not
corroborate this thesis at all, particularly when you
understand, number one, that Ms. Cooke had received, in the
period from April forward, six weeks of potent IV antibiotic,
and yet she had not completely healed the wounds on her legs.
This shows that she had reduced blood flow to the toe
and to the heels, so the chance of bacteria entering in
reverse, causing sepsis, would not be logical. The reason she
had the wounds was because she wasn’t delivering blood flow and
bringing it back, so then how would that be the portal of
entry?
Number two, she had dry gangrene on her toe. That
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means it’s non-viable. I mentioned to you, we have at times
left the toe, and it just will flake off in some of those
patients. We don’t always operate on those patients. That has
not been a portal of entry, because those blood vessels are
dead, they’re sealed, so that makes no sense.
Thirdly, I’ve taken care of, in my own personal
career, more than 2,000 patients with septic shock or SIRS.
It’s one of my areas of expertise in the ICU. In every one of
those patients who developed septic shock, they develop a very
high respiratory rate that’s unique. It’s called rapid shallow
breathing, because they’re trying to blow off the acid from the
infection.
Yet Dr. Hwang described that the patient went apneic.
Her respiratory rate went down, not up. In septic shock you
expect the patient to breathe 35, 40, 45 times a minute, not
zero, so that’s inconsistent.
Also and most objectively is the arterial blood gas
that was obtained in the afternoon, on the order, in the
recovery room, shortly after 4:00 p.m. In septic shock, and in
systemic inflammatory response syndrome, patients’ pH, their
acid base, because they’re full of acid, precipitously drops.
My experience has been their pH is 6.9 to 7.1. It is never,
not in any of the 2,000 patients I’ve ever cared for, normal.
Secondly, the bicarbonate level is in the low single
digits, or I’m sorry, the low double digits or single digits.
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You have bicarbonates of 6 to 12, because the buffer is
consumed to fight the infection.
In Ms. Cooke’s case, she had a completely normal
bicarbonate, and a normal pH. That would speak against that
objectively, not because Dr. Schweiger says so, because that’s
the way the human body works.
And then lastly, from the time that Ms. Cooke was
admitted, she had an infectious disease expert, Dr. Mathur, M-
A-T-H-U-R, following her. They had recommended vancomycin and
Cefepime, which are powerful antibiotics, for infection. They
also followed her after.
I carefully read all of the infectious disease
expert’s notes, who that along with critical care, is the
expert in sepsis and sepsis management. Never once did Dr.
Mathur ID, ever mention sepsis or septic shock, nor did they
institute, from an ID perspective, management of sepsis.
So I don't understand how you could have critical
care that didn’t identify it, infectious disease that didn’t
identify it, and the other doctors didn’t (unintelligible)
sepsis, but then four years, five years later say you had
septic shock. It makes absolutely no sense.
Q Doctor, did you see any health care provider after
this event on the 21st, document that Ms. Cooke had sepsis or
suffered septic shock?
A I did not, no, there was a complete absence of either
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of those diagnoses in Ms. Cooke’s medical record.
Q Doctor, you’ve also read that it’s the opinion of
defense experts that Ms. Cooke did not suffer anoxic brain
injury, but rather a metabolic encephalopathy. Now do you hold
an opinion, to a reasonable degree of medical probability,
whether that is a reasonable theory?
A I do hold an opinion.
Q And what is your opinion?
A Within a reasonable degree of medical probability,
Ms. Cooke did not suffer primarily a metabolic encephalopathy.
As mentioned, first of all, the notion of the metabolic
encephalopathy can be traced back to Dr. Chen, the neurologist,
who, and I’ll give him that, was concerned that perhaps the
medication, the fentanyl and propofol, was having a longer-
lasting effect. But those medications, as I mentioned, are on
the span of minutes or hours, not days, so that could be
excluded.
Number two would be renal failure. Well, she had a
kidney doctor that knew her from before, was very intimately
involved. He never concluded that this was metabolic
encephalopathy from the kidney failure. In fact her kidney
parameters were essentially not much different than they had
been in the days or week preceding this. Most of the doctors
that saw her used the term anoxic encephalopathy or hypoxic
(unintelligible). Some used anoxia versus metabolic, which is
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appropriate. Doctors use a differential to rule in or rule out
different diagnosis.
But there was no corroboration that this was a
primary metabolic, which as I mentioned earlier, is usually
manifested with delirium. The patients don’t die from
metabolic encephalopathy, and it’s reversible, meaning the
patient has waxing and waning mental status when they’re in the
ICU.
And for the most part, for the eight days that Ms.
Cooke was in the ICU, she was essentially unresponsive and at
times was described as having negative doll’s eyes, which is a
specific neurological exam we do in the ICU, that shows severe
brain injury. And you would not see the absence of doll’s eyes
if the patient had metabolic encephalopathy.
Q Thank you, Doctor. I have no further questions.
THE COURT: Okay. I don't know how we’re doing the
timing thing here, but it’s 10 of, so that’s when we were kind
of aiming to break for lunch.
Doctor, do you want to step down?
THE WITNESS: Yes, ma’am.
THE COURT: Okay.
THE WITNESS: Thank you, Your Honor.
THE COURT: Thank you. And we are going to resume
at, if I can get you back up here at 25 after 1:00, then we can
get started right at 1:30. Let me just check the weather
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again. When I checked before our break, WTOP was reporting
that the, I think the rain has started. I haven’t actually
looked, but the snow part is not supposed to be until, now it’s
back to around 4:00, so let me just see here. So somewhere
between 3:00 and 4:00, snow showers, light snow at 5 o’clock.
So we’re going to monitor it a little closer when we come back.
But somewhere between, around 3:30, 4:00, we’ll plan to stop,
4:00 definitely. But we’ll just take a shortened lunch now.
So again, pads face down. Please don’t, on the
chairs. Pencils, if they need help, put them to the side.
Please don’t discuss this matter with anyone, or allow anyone
to discuss it with you. Anything that occurs, if it does, that
gives you concern, let Brian know and I’ll take it up from
there.
I will need to clear the courtroom, so if there’s
anything you want to get for your lunch, feel free. If you
want to leave anything, feel free. We’re going to lock the
courtroom.
So we’ll see you back here at 1:25. Okay? Have a
good lunch.
(Recess)
THE COURT: All right, everyone can be seated on
three. We’ll all be seated at once. All right.
All right, the doctor is in the witness stand. The
jury is present.
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MR. MITCHELL: Thank you, Your Honor.
THE COURT: Mr. Mitchell.
MR. MITCHELL: Ladies and gentlemen, good afternoon.
Before I start, Your Honor, I think the lights are still on,
are low.
THE COURT: Yes, we can put them back on.
MR. MITCHELL: Yes, the mood lighting. Okay.
JOHN WALTER SCHWEIGER
called as a witness on behalf of the plaintiff, having
previously been duly sworn, was examined and testified further
as follows:
CROSS-EXAMINATION
BY MR. MITCHELL:
Q Dr. Schweiger, how are you?
A It’s an honor to see you again, Mr. Mitchell.
Q I appreciate that. I want to start out where Mr.
Herschfeld finished with you --
A Yes, sir.
Q -- and make sure I have something straight. Your
opinion is that Ms. Cooke suffered a profound, severe hypoxic
insult to her brain during this toe amputation surgery,
correct?
A Yes, sir.
Q Such that, such a severe, profound lack of blood
supply to her brain that it left her in a persistent vegetative
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state. Do I have that correct?
A Correct. The lack of oxygen, coupled with the lack
of blood flow, resulted in hypoxic ischemic encephalopathy.
Q Exactly, lack of blood flow, lack of oxygen took a
hit to her brain. And yet in your opinion, the CAT scan, two
CAT scans were done, doesn’t show it, true?
A Correct. That’s a true statement.
Q The MRI that was done doesn’t show it, correct?
A Correct.
Q And the EEG, two EEGs were done. I don't know if you
looked at those, but they don’t show it, isn’t that true?
A So the last one is not completely true. It showed
diffuse reduction in brain activity, which would be consistent
with global ischemic encephalopathy, but it did not confirm it,
nor would one expect the EEG to confirm that.
Q Well, I’ll just, one more question on the EEG. It
shows triphasic waves, and the interpreting radiologist or
neurologist who read that EEG, said consistent with, suggestive
of metabolic encephalopathy, isn’t that true?
A That’s correct. The latter is a true statement, that
the interpretive neurologist, who read the EEG, said that the
triphasic waves were consistent with or suggestive of metabolic
encephalopathy.
And that’s been my experience that again, in about 15
to 25 percent of the patients who have metabolic
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encephalopathy, you’ll see abnormalities on the EEG, consistent
with that. So again, it’s the minority, but you can see that,
true.
Q Okay. So if I also heard you correctly, you said an
MRI, in its ability to pick up hypoxic ischemic encephalopathy,
is unreliable? Is that what you said?
A Correct. You can have a completely normal MRI, and
have a patient devastated with anoxic encephalopathy, because
the two most common findings on MRI, one is global cerebral
edema, that the brain swells, and the other would be
dissolution of the gray-white boundary that I mentioned
earlier. The MRI is more reliable than the CT scan, but again
it is, neither of those tests can be utilized for brain death
examination. You would have to get a four-vessel nuclear flow
scan to really confirm the presence of brain death.
Q And here’s my question.
A Sure.
Q Would you defer to a board certified
neuroradiologist, in terms of an MRI’s ability, sensitivity for
picking up hypoxic brain injury? Would you defer to a
neuroradiologist on that issue?
A So I would not defer to a neuroradiologist in terms
of the utility of MRI in brain injury or brain death, since I
practice in a 36-bed neurocritical care unit for the last 25
years, and am familiar with those test.
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But certainly I am not a radiologist. I don’t
interpret those studies myself. I depend on a
neuroradiologist. So if you’re talking about specific imaging,
yes, the neuroradiologist would be more appropriate, but in
terms of the ability to use that study for brain injury or
brain death, the troop on the ground is someone like me, not a
neuroradiologist. They don’t come to the ICU.
Q But indeed, at your hospital, Tampa General,
physicians are ordering MRIs to assess whether patients,
patients who decompensate or arrest, MRIs are done afterwards
to assess whether there was brain injury, isn’t that true?
A I completely agree with you, yes --
Q Okay.
A -- I would say in almost all cases I would order an
MRI if the diagnosis was unclear. That would be one study,
assuming the patient was stable enough to go to the MRI
scanner.
Q Okay, thank you, Doctor.
A You’re welcome.
Q One more thing before I get into the meat and
potatoes. Can we agree that in your situation, or any
anesthesiologist’s shoes, when a patient decompensates, the
priority is resuscitate, put your attention on the patient, and
documentation comes second. Can we agree to that?
A I completely agree. Yes, the patient always comes
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first in terms of responding, and then later on one does the
documentation.
Q Okay, now I want to give the jury, one thing Mr.
Herschfeld did not ask you about when he was talking about your
background was the sheer volume of expert work that you do, so
I want to ask you --
A Yes, sir.
Q -- a few questions about that.
A Sure. That’s fair.
Q You’ve been reviewing medical malpractice cases like
this since 1988, true?
A 1990, so for 20 years.
Q 1990.
A Yes, sir.
Q So 21 years.
A Exactly. ’88 I hadn’t graduated medical yet. I
wouldn’t have been considered an expert.
Q So ’90, 21 years.
A Yes.
Q And as I understand it, from 2001 to just a few years
ago, you were looking at 12 to 15 cases a year.
A Yes, sir. That’s true.
Q And then in the last two or three years, that’s
picked up --
A Correct.
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Q -- in terms of the number of cases that you reviewed,
true?
A I agree.
Q And these days it appears that you review about one
or two cases a month.
A That’s true.
Q All right. Now and you’ve reviewed cases in 25
different states, as far west as Washington State, as far north
as Massachusetts, and as far southwest as New Mexico, true?
A Yes, sir. That’s correct.
Q All right. And you’ve testified under oath, as I
understand it, 230 times, true?
A Correct. That’s absolutely correct. Two hundred
depositions sworn over the last 20 years, and this would be the
30th trial.
Q This would be your 30th trial.
A Yes, sir.
Q Okay. And when you testify at trial, or when you
testify, it’s 90 percent for the plaintiff, isn’t that true?
A Correct, yes.
Q All right. And you’ve never testified in Maryland in
support of an anesthesiologist, true?
A That’s a true statement. I have not been asked to,
no, sir.
Q And in terms of money that you’ve made, last year
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alone you made $125,000 doing expert work, true?
A That’s correct. Yes, sir.
Q And in the last four or five years, the total amount
that you’ve made from doing expert work is in the neighborhood
of 500 to 600,000, true?
A Correct.
Q So this work is lucrative for you, isn’t that true?
A I charge for my time. I have no financial
relationship with either the defense or plaintiff. Whether
they win or lose has no bearing on my involvement. I only
charge for the hours that I spend involved in the case or
testifying.
Q And I’m glad you meant that. You’re a full-time
practicing physician, so when you do this expert work you must
do it at night or on the weekends.
A That’s correct, yes.
Q So it is indeed lucrative to you as a side
occupation, true?
A Yes, I’m certainly fairly compensated for my time
that I spend on the nights, weekends, or days off reviewing the
cases or doing a deposition.
Q Okay. Now in terms of your involvement here, I’m
going to touch upon that a little bit.
A Yes, sir.
Q As I understand it, around the end of July 2017, you
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received a call from Mr. Herschfeld while you were at the
hospital.
A Yes.
Q You remember we talked about that?
A That’s true.
Q Right. And you were told at the initial phone call
that this case, there was an elderly female who was going for
peripheral vascular surgery, had an intraoperative arrest, and
died, true?
A Correct. That was the initial interaction with Mr.
Herschfeld, just so I had some understanding of whether or not
it would or would not fit into my area of expertise.
Q Right. So before you looked at one piece of paper
from all of these binders of records, you knew that Ms. Cooke
had arrested, and you knew that she had died.
A Yes, that’s a true statement.
Q Now a few weeks after that phone call in July of
2017, you got a box of records, and the records you got
initially were the Shady Grove records from August, the August
2014 toe amputation surgery, true?
A Yes, sir. That’s correct.
Q And you reviewed those for about seven or 10 days,
and then you called Mr. Herschfeld to share your opinions in
the case, right?
A So it took me about seven or 10 days. I didn’t spend
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all seven days reviewing that chart --
Q Right.
A -- but you are correct that, you’re right --
Q You got to it in about seven to 10 days --
A -- in about seven days.
Q -- and then called Mr. Herschfeld and shared your
opinion.
A Yes, sir.
Q All right. And it’s fair to say that you were able
to form your opinions after you reviewed that August 2014
hospitalization record, true?
A True.
Q All right. And then subsequently your assistant got
records regarding the April 2014 surgery, true?
A Yes, that’s correct.
Q All right. Now you were asked about -- well, strike
that. As I understand it, you’re not relying on, you didn’t
refer to any medical literature in forming your opinions, nor
are you relying on any medical literature to support your
opinions here.
A I agree with that, yes. I have not done a literature
review for this case, nor am I relying on any opinions from the
literature.
Q Okay. Now in terms of your experience with patients
who you’ve cared for, it’s true, is it not, you’ve been in
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operations providing anesthesia care, and patients under your
care have suffered arrests, isn’t that true?
A Yes, that’s absolutely true. Having practiced for 25
years, unfortunately patients do die in the O.R., particularly
if you’re at a high-volume center doing trauma in very
critically ill patients, so that has happened, unfortunately.
Q So you’ve not only had patients arrest, you’ve also
had patients die.
A Yes, absolutely, both in the O.R. and in the ICU.
That’s part of the job of a physician is sometimes to have
patients, unfortunately, despite medical intervention, pass
away.
Q And as I understand it, that’s happened between 15 to
20 times. Fifteen to 20 times in your career, right?
A Yes, so 15 to 20 times, when you ask, and you’re
correct, were patients in the O.R. that I was anesthetizing,
where they then died because of their disease process or
hemorrhage.
And then of course many hundreds of patients in the
ICU that over the last 25 years have died from their diseases.
Q I appreciate that. So let’s focus on the 15 or 20 --
A Yes, sir.
Q -- to whom you were providing anesthesia care in the
O.R. You didn’t feel that you were negligent in any of those
15 to 20 cases in your anesthetic care, even though the patient
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arrested and died.
A Yes, that is correct. I did not feel, and then when
there was morbidity and mortality conference in the hospital
and peer review, I received no complaints from the hospital or
the department.
Q And in all of those cases, those 15 to 20, those
patients or the patient had a significant underlying co-
morbidity or co-morbidities that resulted in the arrest, true?
A Yes, that is true.
Q And I would imagine in those cases you were aware of
the co-morbidities, and tailored your anesthesia plan to
account for the co-morbidities, true?
A I would agree with that statement, yes, sir.
Q And then despite your attempts to take into account
the co-morbidities, the patients still arrested, true?
A That is correct, yes, sometimes despite the best
efforts, patients still will die.
Q I appreciate that. My point exactly. A doctor, an
anesthesiologist, can do everything right, and yet the patient
may still arrest and die, absent negligence, isn’t that true?
A I would certainly agree on a general perspective that
yes, you can do everything right and still have a bad outcome.
Q Okay. Now I want to talk about her surgery and the
clearance that she got from other physicians. We can agree
that in working up Ms. Cooke for this toe amputation surgery,
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she was cleared by a hospitalist.
A True.
Q A cardiologist?
A Correct.
Q A nephrologist?
A Absolutely correct.
Q A podiatrist?
A That’s also true.
Q Okay. They evaluated her for the disease processes
that they were taking care of, and deemed that those processes
were stable for her to undergo this surgery, right?
A Yes. I think that’s an elegant way of phrasing it,
that each of those individual consultants looked at their
subspecialty, and felt that at that point Ms. Cooke had been
optimized, they had nothing more to offer, other than the
hospitalist, who had ordered the blood transfusion.
Q Okay, and as you mentioned in response to Mr.
Herschfeld’s question, she had undergone a coronary artery
bypass graft procedure in 2003, and that was very successful in
terms of the coronary vessels that fed her heart were open and
(unintelligible), right?
A Yes, that’s a true statement. The record supports
that.
Q Okay. Now in terms of, we can agree she had a
multitude of co-morbidities. Can we agree to that?
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A Yes, we can certainly agree. When I looked at her
medical record, she definitely had many underlying problems.
Q Okay, and despite all those, the specialists felt she
was, or cleared her for surgery.
A That’s true, yes.
Q Now let’s talk about Dr. Hwang’s pre-operative
assessment, before they go to the E.R., right?
A Yes, sir. O.R.
Q O.R. We can agree that at the time of his pre-op
assessment, he looked at various portions of her medical
records, true?
A That’s correct. He did testify to that, I agree.
Q All right. He looked at her history and physical
(unintelligible)?
A True.
Q He looked at her medications?
A Correct.
Q He looked at her medication record?
A That’s correct.
Q Dr. Hwang also checked her most recent vital signs?
A Yes.
Q And he also reviewed her most recent lab work,
laboratory work, lab results.
A He testified to that, yes. I didn’t see that
indicated necessarily on the pre-op, but that was stated.
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Q Right. You don’t dispute that.
A No, I don’t.
Q Okay. And we can agree Dr. Hwang met the standard of
care by reviewing all of that stuff in the pre-op assessment
period, true?
A That’s correct. In terms of what he did review, that
certainly would be essentially for an anesthesiologist to
review.
Q Now you said in response to Mr. Herschfeld’s
questions, way at the end of your testimony, that he also, Dr.
Hwang also should have looked at the April 2014 records. Did I
hear correct?
A Yes, you did.
Q Okay. When you did your initial review of this case,
you looked at the August 2014 records and formed your opinions,
true?
A That’s correct.
Q You did not say to Mr. Herschfeld I can’t look at
this case until I have the April 2014 records, did you?
A That is true. However, when you deposed me in Tampa,
I did tell you had I been the treating anesthesiologist, I
would have obtained the records, particularly given it was at
the same institution.
Q I’m glad you went there, because my next question was
in your practice, if you were taking care of Ms. Cooke, you
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would not have proceeded with this case until you had the April
2014 records.
A That’s correct.
Q Correct. So that would have been your practice if
you were the physician, but that’s not the practice you took
when you reviewed this case as an expert, is it?
A That’s correct, because at that point I was not yet
aware until later that there was an April 2014 surgery --
Q Okay.
A -- as the expert.
Q We can agree that Ms. Cooke did not report to Dr.
Hwang or any other physician that she had prior anesthesia
problems, isn’t that true?
A That’s a true statement.
Q And we’ve mentioned the ASA, which is the American
Society of Anesthesiology, they haven’t made any guidelines,
issued any statements that say an anesthesiologist must go back
and look at prior records of a patient such as Ms. Cooke, isn’t
that true?
A That’s correct. The national organization has not
made a specific statement about going back and reviewing
medical records. But again, the applicable standard of care in
2014 would be that an anesthesiologist, anesthetizing a patient
that was considered at moderate or high risk, would review the
prior anesthesia records.
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Q Now I want to talk about this April 2014 surgery. In
August of 2014, it was to amputate her osteomyelitic gangrenous
toe, correct?
A Yes, sir.
Q Now in April 2014, the surgery was, what’s the proper
term, debridement --
A Correct.
Q -- of the left leg ulcer.
A Correct. That means for the surgeon to shave off --
Q Explain to them what that means, if you would --
A Yes --
Q -- debridement.
A -- debridement means for the surgeon to take a
scalpel and to shave off the dead skin until you get viability,
in which the dermis bleeds through the dead skin. And then
often too, if there’s areas of infection or pus, those areas
would be open to allow the drainage of the pus, which will
improve the wound healing.
Q Now the anesthetic approach used in April of 2014 was
the same anesthetic approach that Dr. Hwang used --
A Yes --
Q -- correct?
A -- I’ve agreed to that. Yes, it was IV sedation with
(unintelligible) anesthetic care.
Q Thank you. And the medications used in April 2014
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were the same that Dr. Hwang used, correct? fentanyl and
propofol.
A Yes, you are correct. That is true.
Q And you mentioned that the fentanyl used in April was
double the amount that Dr. Hwang used, isn’t that true?
A Correct. A review of the anesthesia record reveals
100 micrograms given in April, versus 50 by Dr. Hwang in August
of 2014.
Q And the same thing applies to the propofol. Dr.
Hwang gave Ms. Cooke only 20 milligrams, which you call a tiny
dose, right?
A That’s correct.
Q And yet in April they gave, she received 60 --
A Sixty --
Q -- milligrams of propofol, isn’t that true?
A That’s a true statement.
Q Now she tolerated the procedure in April 2014 well,
correct?
A I would agree, overall. There was the initial drop
in blood pressure, and after that period the vital signs
stabilized. And there was no report by either the CRNA or the
anesthesiologist surgeon of any complication in April of 2014.
Q And now in April of 2014 she didn’t have gangrene in
her big toe, left big toe, true?
A No, sir. There was no evidence of that at that
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point.
Q Right. She didn’t have an infected bone,
osteomyelitis, in her left big toe, true?
A Correct.
Q In April 2014.
A Yeah, in April the podiatrist did not mention any
bony lesions on the left side of her foot.
Q And he also didn’t mention any purulent discharge,
which common people call pus, on her left toe in April 2014.
A That’s true, he did not.
Q Right. So this, if you compare the April 2014
surgery to the August 2014 surgery, we can agree the August
2014 surgery, the toe amputation was a more invasive procedure
because they were cutting bone. Can we agree to that?
A Yes, absolutely. If one is going through skin and
dermis and cutting bone, that is more invasive than just
debriding the dead skin and allowing the dermis to bleed
through.
Q Okay. And yet for that less invasive procedure in
April of 2014, the anesthesiologist used double the amount of
fentanyl, and three times the amount of propofol, true?
A That’s a true statement, because where the wound was
in April was higher up, where Ms. Cooke would have more pain
sensation. In diabetics usually the foot and toes are
insensate. They don’t feel it. That’s why they bang it, get
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infected to begin with, because those nerves have been injured
from the diabetes. So it’s very common in anesthesia practice
that if the wound is higher up, you would need to give higher
doses, and it would be more difficult for the surgeon to get a
complete infiltration with the local anesthetic.
Q Okay, I want to backtrack to the physical exam that
he did. Dr. Hwang performed what’s called a focused physical
exam, agreed?
A I agree with that, yes.
Q All right. And part of that focused physical exam
involved evaluating her airway --
A True.
Q -- correct? And from what I understand, you ask the
patient to open their mouth, see where their tongue sits to
check the range of motion. He did all of that appropriately,
didn’t he?
A Yes. Dr. Hwang performed a Mallampati examination,
which means to look in the mouth without the patient speaking
or phonating, they’re not allowed to say ah, to see whether or
not he thought he could be able to put a breathing tube in. He
assessed that. He did look at Ms. Cooke’s range of motion
through flexion and extension, and found it to be limited. And
then he performed a focal exam of her heart and her lungs.
Q Right. And he did all of that appropriately,
thoroughly, and within the standard of care, true?
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A I would agree. I have no criticism of the focused
nature of the exam.
Q Okay. So in addition to evaluating her airway, he
also did kind of a comprehensive overall status exam or
assessment, and assigned her an ASA, American Society of
Anesthesiology, classification, true?
A That’s true, yes, he assigned her a class three --
Q Right.
A -- which I would agree with. Certainly she was
sitting on the border of three or four, but I think it
certainly could be justified, but Dr. Hwang concluded that she
was a three. And in fact in looking at the April anesthetic
record, she was also a three --
Q Also a three.
A -- so there was consistency there.
Q I appreciate that. And to give the jury an idea of
ASA 1, ASA 2, ASA 3, and ASA 4, one being the most healthy.
A Correct.
Q Four being the most unhealthy.
A Right, so --
Q (Unintelligible.)
A -- actually a five is the most unhealthy. A five
means the patient will die within 24 hours without operation.
Two means there’s a mild systemic disease, hypertension, mild
diabetes, but no functional limitation.
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Q Right.
A ASA --
Q What’s three?
A -- three is a moderate or severe disease, with some
functional limitation. It could be affecting the kidney, the
periphery, so that certainly is consistent with Ms. Cooke.
ASA 4 means that there’s a severe medical problem
that is a potential or constant threat to life, so coronary
artery disease, angina, congestive heart failure.
And ASA 5 means the disease will basically kill the
patient within 24 hours without an operation.
Q So when an anesthesiologist is assessing a patient
and trying to figure out what ASA classification they go into
or fall into, we can agree there’s some degree of subjectivity
in terms of whether you determine a patient to be a three or a
four.
A I would agree, and you and I had a very nice
conversation when I was in Tampa with you, saying that I could
have justified her being a three or a four. Both would have,
could be argued and justified, so I’m not critical of Dr. Hwang
for saying three.
Q I appreciate that. Now in terms of his anesthesia
plan, we can agree that he took all of her history, his
findings on exam, and all that he learned from the chart, and
he formulated an anesthesia plan that was MAC anesthesia.
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A Yes. That was --
Q A short period of deep sedation, in combination with
the local injection that the podiatrist would do, correct?
A True.
Q And all of that was appropriate within the standard
of care.
A Yes, I agree. The plan itself, as was articulated, I
don’t fault.
Q Okay. So you’re not here telling this jury, I just
want to confirm, that he should have done a spinal, or he
should have put her on general anesthesia and intubated.
You’re not saying that, true?
A No, in terms of his formulation of the plan --
Q Yes.
A -- I agreed, when you questioned me earlier this year
or last year, that one could justify doing IV sedation with
MAC. In fact it had been done in April, and we do that in
anesthesia. So again, specific to the plan, I’m not critical
that she had to have a spinal or she had to have a general.
Q Okay. Thank you. Now in terms of he does an
assessment outside the O.R., and then he does another
assessment about a half hour later in the O.R., before inducing
her, correct?
A Correct.
Q At roughly, not roughly, 14:35, 2:35. That’s what
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you talked about at length with Mr. Herschfeld, right?
A That’s correct. Somewhere between 20 and 30 minutes
after the initial assessment --
Q Right.
A -- which was done at some point around 2:07 to 2:15.
Q Right.
A That was when the second assessment occurred.
Q Now let’s talking about this pre-induction assessment
in the O.R. He personally measured her heart rate, didn’t he?
A He did, yes.
Q And he found it to be 85 --
A That’s true.
Q -- right? And 85 is a normal heart rate, right?
A I agree.
Q And he also personally measured her respiration rate,
by probably listening with a stethoscope, and determined it was
16. She was breathing 16 times a minute, correct?
A Correct. So it can be done with a stethoscope. More
commonly what happens is there’s bioimpedance from the EKG --
Q Yes.
A -- so the bioimpedance of the chest rising and
falling is read on the monitor and gives the anesthesiologist
the respiratory rate without having to use the stethoscope. It
tends to be more accurate, but either one would be justified.
Q You’ve done more than me, so you probably, I
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appreciate that.
A You’re welcome.
Q So heart rate was normal, respiration was 16, which
is normal. He also measured her oxygen saturation and it was,
I think you said 95?
A Correct.
Q And that’s also normal.
A It is, yes.
Q So three out of four vital signs are completely
normal.
A True.
Q Heart rate, respiration, oxygen saturation. Now I
know you’re critical of the BP, the blood pressure, which was
95 over, 97 over 35 --
A Correct.
Q -- and we’ll get to that.
A Sure.
Q But what he didn’t ask you about was he also
assessed, Dr. Hwang did, her mental status, didn’t he?
A He did, yes.
Q And he found her to be awake, alert, and oriented at
that time, didn’t he?
A That’s correct.
Q Okay.
A He did document that.
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Q And we can agree he was in a better position than you
to assess whether she was awake, alert, and oriented and stable
at that time, agreed?
A Correct. I was --
Q He was laying eyes on her.
A -- yeah, I was not in the operating room, nor would
any of the experts have been, so clearly we’re only going by
doing the chart review and the data review afterwards. So in
terms of what Dr. Hwang witnessed, one would certainly have to
go by what he testifies to.
Q Right. And based on the fact that she was awake and
alert and oriented, and all else that he had right in front of
him when he saw her, there was no indication that she was being
(unintelligible) to her brain, true?
A I would respectfully disagree. Based on the
deposition testimony of her daughter, who said the patient was
sleepy and somnolent in the holding area, there certainly would
have been concern that that excessive somnolence or sleepiness
could have been either from the effects of the fentanyl, which
she had on as a patch, or a combination of the low blood
pressure, or both.
Q So wait a second, I thought you just told me that you
don’t dispute Dr. Hwang’s finding that she was awake, alert,
and oriented at the time that he did this assessment at 2:35 --
A That’s correct.
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Q -- can we agree to that?
A I don’t. What I’m saying is that there is evidence
in the deposition testimony of the daughter, stating that when
she interacted with her mother during the same time period, the
patient was sleepy, would fall asleep, and seemed excessively
somnolent.
Q She wasn’t that way at 2:35 when Dr. Hwang saw her in
the O.R., was she?
A Did not appear so, based on Dr. Hwang’s testimony.
Q Okay. Now we can agree that Dr. Hwang met the
standard of care by continuing the blood transfusion that was
already hung and running while he saw her in the O.R., true?
A Well, again, I would respectfully disagree with you.
The blood transfusion should have been completed, not
continued, because again, it was infusing through the
peripheral inserted central line, which has a very slow
infusion. So certainly continuing it, yes, but it should have
been continued to completion before initiating the anesthetic.
Q So I appreciate that, but I just want to get, repeat
the question, if I can.
A Sure.
Q If we can agree Dr. Hwang met the standard of care by
continuing the blood transfusion that was already running when
he saw her in the pre-op area.
A Right, I stipulated when you and I spoke in Tampa,
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and again today, certainly continuing to get the blood into her
was mandatory. She needed the blood transfusion. In order to
get it into her, you’d have to continue it.
But if one then makes the next jump, which is to say
well, you’re continuing it and you should just start that
anesthesia, no, you should make sure that the transfusion is
completed.
Q Okay. Now an induction, that is when he puts her,
gives her the fentanyl and the propofol, we can agree those
were appropriate medications to use, true?
A Well, just stepping back, the term induction has a
very specific connotation to anesthesia. It means the onset of
general anesthesia, so --
Q Well, then I misspoke --
A Right, that’s why, and I know you’re being very fair
to me. I just want to be clear.
So yes, when he initiated the IV sedation, of the
fentanyl and the propofol, at that point I am not critical of
the doses.
Q Okay. So I just want to confirm, you’re not critical
of the dose of fentanyl that he used, or the dose of propofol
that he used, true?
A True.
Q All right. And as you said earlier, 20 milligrams of
propofol you characterize as a tiny dose.
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A Correct. Routinely when we’re doing sedation we
would give, be giving between 50 and 100 milligrams in patients
who are ASA 1 or ASA 2, and reducing it in patients who would
be more susceptible. So I would say it is certainly on the
lower end of the spectrum of doses that a patient would get in
an operating room.
Q I need to backtrack to the blood pressure for a
moment, because I skipped it. But her blood pressure when Dr.
Hwang saw her at 2:35 was 97/35, right?
A That’s true, yes.
Q And the blood pressure, the most recent one before
that at 1:44, was 115/54. Remember you were asked about that?
A Yes, that’s correct.
Q And we can agree the blood pressure that Dr. Hwang
saw was within 20 percent of that prior blood pressure, isn’t
that true?
A Correct. Certainly the systolic was within 20
percent. The diastolic was right on the border of 20 percent.
Q And we can agree that a general rule, that as a
general rule in anesthesia, a drop of 20 percent or less in a
patient’s blood pressure is acceptable, isn’t that true?
A Yes, and in previous depositions, trials, I have
testified to that, that that is usually the border that we
give, that a patient go up or down from their baseline blood
pressure 20 percent and still be within the realm that an
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anesthesiologist would feel comfortable.
My issue here is that her baseline was likely not
110/55, but she lived at 130 to 140 over 70 to 80, so we have a
larger magnitude of drop when we go to 97/35.
Q Okay. I want to fast-forward to the propofol issue.
He gave a tiny dose, 20 milligrams, and he did that because he
was taking into account, was he not, her co-morbidities, true?
A I would say that’s a fair statement, based upon
what’s reflected in the chart.
Q And that was appropriate within the standard of care.
A Yes, dose reduction by an anesthesiologist should
always take into consideration the age and disease of the
patient. Not everybody gets the same dose. We should tailor
it. Everybody is individually different.
Q Exactly, and he tailored the dose of propofol to her
condition. And we can agree propofol is very dose-dependent.
And by that I mean if you give a smaller dose, you expect to
see a smaller drop in blood pressure, true?
A Yes, from a general pharmacologic perspective, that’s
true. As you give more of the drug, you get magnified drop in
blood pressure and drop in pre-load, so as you go up on higher
doses, you’re more likely to get myocardial depression of the
heart.
Q Now in terms of the timing of when you go to the
propofol, and you’ve done this kind of toe amputation surgeries
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yourself --
A Yes, I have.
Q -- in terms of providing anesthesia.
A Correct.
Q And so there’s a certain exchange, as I understand
it, between you and the surgeon. You time your propofol to
give it about a minute before he’s going to give the local
injection, is that right?
A Precisely. The arm-brain circulation time of
propofol, from the time that I inject it to the time that it
puts the brain under sedation, is about 45 to 60 seconds. So I
communicate with the surgeon, find out when they’re planning to
do the injection. I then give it about a minute or a minute
and a half before, let it go to the brain. Then they know, as
the patient gets sleepy, they can put the needle in to inject
the local anesthetic.
Q And that’s what happened here, as you understand it.
A Yes. That was the description of both Dr. Assili,
the podiatrist, and Dr. Hwang, the anesthesiologist.
Q And that met the standard of care in terms of Dr.
Hwang timing his propofol based on what the surgeon was about
to do.
A Yes, the injection of it, one or one and a half
minutes before, would meet the standard of care.
Q Explain to the jury, if you would, what an injection
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of a local anesthetic involves. What did Dr. Assili do? We’ve
heard the term a lot, but what does that actually involve?
A Yes, so when the surgeon does a field block, what
that means is they take a needle attached to a syringe. They
go upstream from where they’re going to do the surgery, and
then they’ll provide an infiltration, taking the needle and
fanning out to provide the local anesthetic under the skin, in
the vicinity of the nerve, to provide nerve block, much like a
dentist may give you a block before you get a root canal.
And then once that medicine sets up, then that,
coupled with the fact that the diabetic has less pain because
of the nerve injury, you can then cut the skin or saw the bone,
with the patient having little if any discomfort.
Q Where on her foot would Dr. Assili have done that
local injection? Mid-foot, up towards the ankle? Exactly
where?
A So remember that Dr. Assili was planning to debride
her heel, so the plan would be to go higher, because you’re
trying to provide pain relief not only for the toe amputation,
but also so that you can scrape the eschar off the heel.
Q Okay. So did that answer the question, in terms of
where he would actually inject it? Or do you know?
A Routinely --
Q Yes.
A -- when we do these procedures, what Dr. Assili would
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indicate would be at the level of the ankle, so that you would
get the nerves that would basically enervate the heel, which
can often be more sensitive than actually the toe.
Cutting the toe off, although it sounds very
unpleasant, is actually not very painful. Scraping the heel
with an eschar is very uncomfortable.
Q Okay. So we know from the record that Dr. Assili
gave that local injection at 14:41, 2:41, right?
A Correct.
Q Okay. And then you’ve done these procedures, you
know that once he does the injection, he has to give it a
little time to let that injection kick in, for lack of a better
term, doesn’t he?
A Yes. It usually starts, the local anesthetic starts
to work two or three minutes later, and then usually by five to
seven minutes you have a dense block.
Q So what are they doing, after he gives the local
injection, I would imagine the nursing staff is cleaning the
foot, preparing the foot --
A Correct. Correct, the foot --
Q -- and instruments are getting prepared.
A That’s absolutely correct.
Q Right.
A The foot is, from the toe, usually up to the knee or
mid-thigh, is cleansed with either a betadine solution or
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chlorhexidine, to kill any bacteria on the skin. Then the
upper thigh is draped in surgical drapes. Of course the leg is
laying on a drape for the surgery itself.
At time the podiatrist or the orthopedic surgeon may
use a tourniquet, not routinely for this type of limited
surgery. The tourniquet would go on the thigh. But in this
case, none was used. And then after that, usually the
equipment is brought in by the scrub tech, who has his or her
own separate table, and handed to the surgeon to begin the
amputation.
And usually the surgeon starts distally, meaning with
the toes, and will then work up to the heel, to give the heel a
longer time to get numb.
Q So Dr. Assili gave the local injection at 2:41 --
A Correct.
Q And then the record shows two minutes later, at 2:43,
he begins the surgery, right?
A That’s true.
Q Okay. And he amputates the left great toe, or the
tip of the toe.
A Correct.
Q And then you know from the record that after about a
minute he starts suturing the toe, and that’s when her oxygen,
she became apneic.
A Yes, that --
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Q She demonstrated the first evidence of apnea.
A Yes. That’s correct. The actual amputation is
actually quite quick by the surgeon. What takes a little
longer is to then close the flap, so you have to re-approximate
the two margins and then begin suturing it shut, to provide
total control of the area.
Q And you know from Dr. Assili’s op report that he says
that she went, Ms. Cooke went into respiratory arrest at the
end of suturing the left great big toe, correct?
A That’s correct. That was --
Q And you don’t dispute that.
A I do not.
Q All right. And then we can agree it was appropriate
for Dr. Hwang, who’s right there watching the patient, he
immediately recognized it, and converted from nasal cannula,
which is how she was getting oxygen, to bag mask ventilation,
true?
A Yes. As I testified this morning, I’m not critical
of that. I myself would first give the patient 100 percent
oxygen by the face mask, and give several breaths for one or
two minutes before I would decide to move forward with the
endotracheal intubation.
Q Indeed that’s what he did. He turned up the oxygen
to 100 percent, and provided oxygen to her through the bag
mask, face mask, correct?
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A Yes. That’s correct.
Q Okay. And that was appropriate within the standard
of care, true?
A Yes, up until that point, meaning the delivery of
oxygen through the face mask, I’m not critical of. Obviously I
voiced my criticism of the failure to then not intubate the
patient, who was in cardiac arrest.
Q Right. So we’ll get to that.
A Sure.
Q But he also met the standard of care by calling for
help once her oxygen saturation dipped again, even though he
was bag mask ventilating, true?
A Yes. Certainly any time a patient has a
cardiopulmonary arrest in the O.R., a call for help has to be
initiated, because you’re only one person with two hands. You
need help in the O.R. The appropriate step, as I testified,
was to call a code response to the additional help, but
certainly there was a call put for help, because Dr.
Emamhosseini did eventually come into the O.R.
Q And indeed more people responded to that general call
for help than Dr. Emamhosseini, isn’t that true?
A That’s correct.
Q Nurses came, other, many folks came. Oftentimes in a
situation like this, it’s hard for the anesthesiologist to tell
who comes, because a lot of people come, don’t they, when these
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calls are made?
A Correct. In a situation that’s uncontrolled, it can
be hard to identify the people that are in and out of the room
during an emergency. Again, that’s one of the responsibilities
of the scribe, who’s the independent documenter, is to document
who is and is not in the room, and who is participating.
Q We can agree, you’ve mentioned the scribe, we can
agree that failure to have a scribe didn’t cause any harm,
true?
A Yes, I mean the failure to have the scribe didn’t
cause the brain injury. It’s simply, as I mentioned to you in
Tampa, the failure to not have the scribe basically then robbed
us of having the data of who was or wasn’t there, and what
times events occurred.
Q But my question again is the failure to have a scribe
didn’t cause any harm, true?
A Correct. It didn’t cause the brain injury or the
subsequent events that led to her ICU stay.
Q Now we can agree that Dr. Hwang met the standard of
care by directing somebody, somebody who came, to do chest
compressions. That was appropriate, true?
A Correct. With PEA, chest compressions are necessary,
not only to pump blood but to circulate the epinephrine.
Q And you don’t dispute that they were done, do you?
A No, not at all. There was independent verification
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by other doctors that a period of chest compression was done.
Q Indeed. And he also met the standard of care by
giving epinephrine when he did, didn’t he?
A Yes. Epinephrine is essential in PEA, because it is
the one drug that has been scientifically proven to help shrink
the blood vessels to increase profusion to the heart by
increasing blood pressure, and by acting as an accelerant to
heart rate, to promote a reconstitution of the heart pumping
ability with the electrical system.
Q And we can agree that the record indicates that Dr.
Hwang was able to restore her heart rate and blood pressure
within two minutes, isn’t that true?
A That’s what’s documented in the record. Again, there
is inconsistency with the anesthesia record, since there was no
blood pressure documented from 14:45 through 14:55, which would
appear to be a period well beyond the two-minute mark,
especially given that Dr. Hwang testified that he cycled the
blood pressure every three minutes. I would have anticipated
that there would have been blood pressure readings in between
that 10-minute window.
Q Okay. Now in terms of this intubation, we can agree
that not all patients who decompensate need to be intubated,
isn’t that true?
A I would agree with you, yes. In my career I have had
patients short of an arrest who I’ve been able to mask
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ventilate. I think I gave you the example, most children when
they arrest do not need intubation. Adults, particularly
older adults, one would err on the side of intubating them and
controlling their airway.
Q And we can agree as a general principle there is room
for physician discretion, physician judgment, in terms of
whether a patient needs to be intubated or not, isn’t that
true?
A I would agree from a general concept that physicians
must exert appropriate medical judgment, particularly in crisis
situations, and that, as I’ve discussed all morning and
afternoon, there is some latitude in terms of interventions
when you’re assessing a critically ill patient.
Q In your experience, if a patient recovers their heart
rate and their blood pressure within two minutes, you would
ordinarily expect that patient to recover their consciousness,
in most circumstances, isn’t that true?
A Yes. My experience over the past 25 years in
attending is if there’s only been a one or two-minute
interruption, then probably 90 to 95 percent of my patients
have regained their consciousness.
Q And you were surprised, given the face value of
what’s on the chart, that she didn’t regain consciousness,
isn’t that true?
A Correct. Similar to, I think what’s reflected by the
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critical care doctors at Shady Grove, they too were surprised.
If in fact she only had one or two minutes, it would seem
unusual that she would have developed anoxic encephalopathy.
Q Okay. Doctor, that’s all I have. I appreciate it.
A Thank you. You’ve been very kind. I appreciate it.
THE COURT: Redirect?
MR. HERSCHFELD: Thank you, Your Honor. I’ll be
brief.
REDIRECT EXAMINATION
BY MR. HERSCHFELD:
Q Doctor, you were asked about your activity as an
expert. Let me ask you, is all of your activity as an expert
for, on behalf of plaintiffs like my client, or being requested
by plaintiffs’ attorneys?
A No, sir. Forty percent of the work that I do around
the United States is for the defense. As mentioned, I’ve
reviewed defense cases in Idaho and Washington. And then the
remainder, sixty percent, would be for the plaintiff.
Q So whether it’s Mr. Mitchell or myself, you review
cases for both sides, if asked.
A Yes, the key is for an expert to be objective and to
give honest opinions, whether that’s for or against one side.
As I said, I have no financial stake in the outcome.
It’s irrelevant as an objective expert. I’m only here to
identify what the standard of care is and to speak to
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causation, based on my experience, because these are obviously
complicated medical issues that the Court would require a
physician to be able to explain that. But in terms of outcome,
that has no relevancy to me as an expert.
Q So whether in this particular case, given these
particular records and deposition testimony and documents,
whether you had been retained by the defense or by the
plaintiff, would you have the same opinions that you have
expressed to this jury today?
A Yes. Having not only sworn under oath to tell the
truth, but also my reputation to protect, that I’ve developed
over the last 25 years, I would have given the same opinion,
even if Mr. Mitchell had sent me the chart to review.
Q Now he had asked you about having reviewed the chart,
the August 2014 chart, over the course of a week. But as you
told the jury, it wasn’t every day over the course of a week,
it was over a period of time. With respect to the amount of
time it took you to initially look at that chart, was it in the
two to three hour range?
A Correct. It took me just shy of three hours to
carefully study this entire notebook, every page, and then
later on obviously I spent additional time when the subsequent
medical records were sent.
Q Now you were asked about the fact that several
doctors, before Dr. Hwang even saw Ms. Cooke, cleared her for
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surgery. I think you said a cardiologist, a nephrologist, a
podiatrist, a hospitalist. Did I get that kind of right?
A I recall that, yes, sir.
Q Okay. When those doctors assessed Ms. Cooke, was her
blood pressure at or in the range of 97/35?
A No, sir. When those doctors assessed Ms. Cooke on
August 19th and August 20th, one and two days before the
surgery, she had much more normal blood pressure. The systolic
was between 110 and 130, and the diastolic in the 60 to 75
range.
Q You were also asked by Mr. Mitchell about the fact
that when Dr. Hwang assessed in the operatory, in the operating
room, prior to the commencement of anesthesia, that three out
of four of her vital signs were normal.
A I recall that.
Q Do you remember that line of questioning?
A Yes, sir.
Q In this case, given Ms. Cooke’s co-morbidities and
status at the time, at 14:31, when she enters the operatory, is
it reasonable to proceed with the anesthesia in this case, with
three out of her four vital signs being normal?
A No, sir. What I practice and what I teach, it would
be like saying you have four smoke detectors in your apartment
or your house. The fact that one is going off, saying that
they smell smoke, doesn’t mean you disregard it because the
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other three aren’t firing.
In anesthesia, if you have a markedly low blood
pressure, and you’re proceeding into the O.R. knowing there’s a
low hemoglobin and hematocrit, low blood count, then at that
point you postpone non-emergency surgery. Her toe could have
been amputated that night or the next morning without any
change in her overall condition. But rather than re-evaluate
her, make sure she gets the blood and make sure the blood
pressure comes up, before you would proceed with inducing the
anesthesia.
Q Mr. Mitchell was asking you, and I believe you
indicated that with respect to the actual dose of fentanyl and
the dose of propofol, you’re not critical of Dr. Hwang.
A Correct.
Q Did I understand that correctly?
A In terms of the actual choice of the drug and the
dosing, I’m not critical.
Q In your opinion, should Dr. Hwang in this case have
even gotten to the point of administering those two medications
to Ms. Cooke, at or around 14:30, 14:35 that day?
A No, sir.
Q Why not?
A The case should have been postponed, pending the
completion of the blood confusion, continuing unit one, which
was going in, getting unit two, giving it, then measuring the
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hemoglobin/hematocrit, confirming the up-tick in those numbers,
and then the restoration of the blood pressure. Once all that
was done, then the green light would be waived, you could go to
the O.R. and have the toe amputation.
Q You were also asked about Dr. Hwang having asked for
the call to, for assistance, and Dr. Emamhosseini coming.
Given the circumstances at that point in time, as you
understand from review of the record, was that an appropriate
response to Ms. Cooke’s condition, in order to have complied
with the standard of care?
A In my opinion it was not an appropriate response,
because Ms. Cooke’s condition require urgency and emergent
intervention, including the timely administration of the
epinephrine and naloxone to reverse the fentanyl, as well as
the institution of chest compressions to restore circulating
blood volume. And then after one or two minutes of 100 percent
oxygen by mask, the endotracheal intubation, to guarantee that
she was getting adequate oxygen into her lung and to the vital
organs.
Q And I want to make sure I understand you, and I don't
want to pull out the chart unless you think it’s needed, but
when you were asked by Mr. Mitchell about her blood pressures,
I think you indicated to the jury that there was a 10-minute
period of time in which the document, it does not reflect a
blood pressure,
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A Correct. There was a blood pressure at 14:45, or
2:45 p.m., that was recorded by Dr. Hwang at 70/42. Then there
was, the next blood pressure that’s clearly identified appears
to have occurred at 14:55. Again, the blood pressure cuff was
cycling, by Dr. Hwang’s own testimony, every three minutes. So
if there was a recording at 14:45, there should have been one
at 14:48, 14:51, 14:54, and yet the next reading that’s there
is only at 14:55, so there would appear to be several readings
that did not record a blood pressure, which actually is
consistent with what Dr. Hwang himself documented in the
progress note, that he cycled the cuff and it failed to give a
reading. He cycled it again, failed to get a reading. Felt
the pulse, didn’t have one. Dr. Emamhosseini came in, felt the
pulse, didn’t have one, gave epinephrine, and now the blood
pressure went up.
Q Now you were asked about the fact that Ms. Cooke did
not have a blood pressure for, or was pulseless for up to two
minutes.
A Correct.
Q Based on your review of the record, is there any
indication that she may have been pulseless for longer than two
minutes?
A Yes. The pulse oximeter, the probe on the finger,
again as I mentioned this morning, requires pulsation to get
accurate reading. On the anesthesia record, under the SaO2,
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there is a reading between 14:30 and 14:45. Then you’ll see,
when you look at the anesthesia record, Dr. Hwang has put a
straight line through 14:45 to 15:00, so he did not have a
reliable reading for 15 minutes in pulse oximetry.
And in his progress note he also mentions I believe
that there was, it said over the next 10 to 15 minutes, it
wasn’t until the naloxone was given that she started breathing
spontaneously. And then 10 to 15 minutes in the O.R., until
her vital signs normalized.
So certainly the inference from the documentation
notes is that there was a period beyond two minutes, in which
she wasn’t adequately providing profusion, adequately getting
pulse oximetry, and adequately providing oxygen and blood to
her brain.
MR. HERSCHFELD: Thank you, Your Honor. No further
questions.
THE COURT: All right. Doctor, thank you.
THE WITNESS: Thank you, Your Honor.
THE COURT: Can I get --
THE WITNESS: Of course. Yes, ma’am.
THE COURT: Is this your copy? Yes, the binder.
THE WITNESS: No, that’s Mr. Herschfeld’s.
THE COURT: That’s Mr. Herschfeld’s, okay.
THE WITNESS: Thank you, Your Honor.
THE COURT: All right. Okay, you have --
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UNIDENTIFIED SPEAKER: (Unintelligible.)
THE COURT: Okay, and two is the binder.
MR. HERSCHFELD: I’m going to retrieve that --
THE COURT: Okay.
MR. HERSCHFELD: -- Your Honor, if I may.
THE COURT: Okay. Can I just see counsel at the
bench real quick? If you can get up here.
(Bench conference follows:)
THE COURT: Yes, well, so just scheduling-wise, next
you’re going to start Dr. Friedlander?
MR. HERSCHFELD: Yes, but I’m going to do him real
fast, Your Honor.
THE COURT: Okay. So I’m going to give them five
minutes to go to the restroom, so they’re not --
MR. HERSCHFELD: Sure.
THE COURT: -- hopping up and down and everything.
So okay.
MR. HERSCHFELD: Okay.
THE COURT: I think we’re better than I thought we
were going to be. Okay.
(Bench conference concluded.)
THE COURT: All right, ladies and gentlemen, before
we start the next witness, we’re going to take a very brief
recess to let everybody step out and use the restroom, so about
seven minutes, if we can do that. If I can get you back in the
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lobby at, let’s say 20 of 3:00.
Snow check, it’s just wet and gross, so far just
normal. Okay.
(The jury left the courtroom.)
(End of requested portion of proceeding.)
166
√ Digitally signed by Pat Ives
DIGITALLY SIGNED CERTIFICATE
DEPOSITION SERVICES, INC. hereby certifies that the
attached pages represent an accurate transcript of the
electronic sound recording of the proceedings in the Circuit
Court for Montgomery County in the matter of:
Civil No. 438808
KELLY HYDOSKI, ET AL.
v.
DAVID WEI HWANG, ET AL.
By:
_________________________
PAT IVES
Transcriber