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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. : : ------------------------------X TESTIMONY OF JOHN WALTER SCHWIEGER Rockville, Maryland January 29, 2019

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Page 1: IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, …ltcrisklegalforum.com/.../05/Hydoski-v.-Hwang-Trial...DEPOSITION SERVICES, INC. 12321 Middlebrook Road, Suite 210 Germantown, Maryland

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. :

:

------------------------------X

TESTIMONY OF JOHN WALTER SCHWIEGER

Rockville, Maryland January 29, 2019

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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

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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.)

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√ 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