Preferential Treatment, page 23
“Yes.”
“Can you estimate the number?”
“It would be rough, but I would say probably twenty, or more.”
Fabian’s eyes grew wide. He wasn’t expecting such a large number. Woodall grinned and scooted up on the edge of his chair. “That’s a fair number of aneurysm surgeries, Doctor.”
“We had a large neurological surgery service at the hospital where I did my training. It was a referral center for many of the local community hospitals. So, I had significant exposure to these types of surgery.”
Fabian quickly realized that he could turn this revelation into something positive for the case. “Doctor, you say your hospital where you did your training was a large referral center for aneurysm patients?”
“Yes, Sir.”
“And are you aware of why these community hospitals referred their aneurysm patients to your center?”
“If you know,” Woodall spat.
Fabian scowled. He hated that phrase interjected into a deposition. He knew that it was often a signal by lawyers to witnesses under examination by the opposition to be careful of the question and not to answer if at all possible.
“Is that an objection?” Fabian growled. “If so, state your grounds.” Woodall sat in stony silence. “I didn’t think so,” Fabian said.
“Doctor, so we don’t have any further improper interjections into the record by Mr. Woodall or his co-counsel, Ms. Cohen, I’ll make you a deal. If I ask you a question that you don’t know the answer to, you tell me, okay?”
“Okay.”
“Now. My pending question is: are you aware why local community hospitals referred their aneurysm patients to your hospital where you did your training?”
“Probably a number of reasons.”
“Can you tell me a few?”
“Some didn’t have a neurosurgeon on their staff to perform the operation. Some neurosurgeons prefer to do the surgeries where they are performed frequently. Some like to do them where the surgical teams work together on these cases on a regular basis. Those are some of the reasons that come to mind.”
“Is it fair to say that the surgical team that you were on in Joseph Gunther’s case had not, as you put it, worked together on these cases on a regular basis?”
“I cannot speak for the nurses and the nurse anesthetist as to how often they worked on these cases together, but it is correct that I had not nor had the operating surgeon.”
Fabulous. Works right into our theories.
“Do you have any idea how many aneurysm surgeries are performed on average at St. John’s in a year?”
“I have no idea.”
“And how many were performed at your hospital where you trained?”
“I can’t really say, but I was there four years and saw and participated in over twenty as I said.”
“How many other anesthesiology residents and anesthesiologists were on staff in your neurological surgery service?”
“At least fifteen.”
“And is it fair to assume that you were not the only resident anesthesiologist during your four years that participated in aneurysm surgeries?”
“Objection. Calls for speculation,” Cohen injected.
“It’s noted. Go ahead and answer the question if you can, Doctor,” Fabian instructed.
“I think that is a fair assumption,” said LaCava. “We had a total of four anesthesiology residents at a time while I was there, and the staff anesthesiologists liked to spread out the various types of cases among all the residents.”
“So, is it fair to say that probably your hospital during your residency handled somewhere around eighty aneurysm surgeries?”
“I can’t say for sure, but I think that would be a fair estimate.”
“Doctor, would you characterize St. John’s Hospital as a large referral center or a community hospital?”
“I would say based upon the number of beds and lack of a residency training program it would be classified as a community hospital.”
“And Doctor, are your aware of any studies that postulate that outcomes of aneurysm surgeries performed in large referral centers that perform them often are typically better than those performed in community hospitals where few are performed?”
“Objection,” cried Woodall. “She’s not a neurosurgeon.” Fabian looked at Woodall and shook his head slowly. This guy’s worse than I thought.
“I am asking you, Dr. LaCava, whether you are aware of such reports of the results of these studies?”
“I’ve heard of them, but I don’t believe I ever actually read one.”
“Doctor, during Mr. Gunther’s surgery, he lost a lot of blood, true?”
“Yes.”
“The chart indicates he lost about eighty-two hundred ccs. if I remember correctly. Is that your recollection?”
“Yes.”
“Is that a significant amount of blood for a surgical patient to lose?”
“It depends on how rapid the blood loss is over a given period of time and whether anesthesia can keep up with the replacement.”
“Were you and your nurse anesthetist able to keep up with the replacement in Mr. Gunther’s surgery?”
“We eventually caught up.”
“I appreciate that, but were you able to keep up adequately to avoid significant injury to Mr. Gunther?”
“We did the best we could under the circumstances.”
Fabian felt the doctor was getting too defensive. Things had been going too well to alienate her at this juncture. Time to ease her mind, he thought. “Doctor, just so you know, I do not think you have done anything improperly in this case. You are not a party, and I have no intention making you one. We’re just trying to determine all that went on during the surgery and what you know. I simply ask that you answer the questions forthrightly, okay?”
LaCava appeared to be relieved by Fabian’s assurances. “Okay. Sorry.”
“I will ask my question again. When Mr. Gunther began to bleed from the operative sight, were you able to adequately keep up with the blood replacement in order to avoid significant brain injury?”
“Objection. Asked and answered,” Woodall interjected.
Fabian ignored him. “Please answer the question, Doctor.”
“Mr. Fabian. There were several bleeds—some more significant than others. During the first bleed, which was several hundred ccs., we were able to catch up satisfactorily. On several of the bleeds, we took some time because of the severity of the bleeding.”
“And when you couldn’t keep up with the blood replacement, what happened to the patient’s blood pressure”
“It fell.”
“In Mr. Gunther’s case it fell significantly, didn’t it?”
“Yes. I would say it was significant.”
“Am I correct that when a patient’s blood loss is so great that it can’t be replaced fast enough that there can be a significant loss of blood pressure?”
“Yes, that can happen.”
“Did it happen in Mr. Gunther’s case?”
“I have no specific recollection, but the chart indicated that the systolic pressure during the last bleed in the patient’s case went down to fifteen. That is significant.”
“Potentially life threatening?”
“Yes.”
“And one of the reasons it is so critical for the blood pressure to be kept at an adequate level is that if it stays critically low for a period of time, it can cause stroke-like damage in the brain, am I right?”
“Yes, it can.”
“And is that what happened to Mr. Gunther?”
“Objection!” Woodall screamed. “Speculation. Calls for a conclusion. She’s not an expert in brain damage!”
Fabian once again ignored his opponent.
“Can you answer my question, Doctor?”
“I’m not sure what caused Mr. Gunther to have the outcome he had. I do know there was a lot of brain swelling. I could see his brain tissue actually protruding from the operative site after the last massive bleed. That degree of brain swelling alone could have contributed to the outcome, or it could have been due to the loss of blood pressure. It could have been a combination of both. I’m just not sure.”
Perfect. I think I’ll stop on that high note. “No further questions.”
Fabian and Darnell sat at a table at the diner across the street from Darnell’s office. Fabian took an oversized bite of his cheeseburger and then dabbled a rill of beef juice from his chin. Darnell, anxious to hear how the morning’s deposition of the anesthesiologist went, did not wait for Fabian to finish chewing before he began grilling him.
“So did we score any points this morning?” Darnell asked.
Fabian chewed quickly and grabbed for his iced tea to help speed the swallowing process. He took a long slurp and grinned. “Would you be happy with a triple?”
“I’d prefer a home run.”
“Man, you’re greedy. I didn’t get anyone to admit that Montgomery fucked up, but I think I scored some points that should help at trial. First, we find that not only the P.A. and operating surgeon were rookies but the anesthesiologist is almost as new as Montgomery. She was on monitoring status, too. So, we’ve now got three of the main players in the surgery working together on an aneurysm surgery for the first time.”
“Great,” exclaimed Darnell. “Fits right in with one of Dr. Blakely’s criticisms.”
“But wait, there’s more. Basically, I got her to testify that surgeries like Joe’s were normally performed in large hospitals that do these things on a regular basis. She also testified that Joe’s blood pressure went dangerously low when the last bleed happened—she used the word significant—and that the blood loss was so severe that she couldn’t keep up with its replacement.” Fabian paused for effect and took another bite of his burger.
“Sounds good. Is that all?” Darnell said.
“Actually, that’s not all. She also testified that Joe’s brain became so swollen after the last bad bleed that she could actually see his brain protruding from the operation site.”
“Yuk!” spat Darnell. “That’s pretty graphic.”
“I kinda like it. Great visual for the jury, huh?” Fabian didn’t wait for Darnell to answer. “About as good as we could hope for from a person who we thought was going to be an ally of the defendant.” He took another swig of tea.
“So, we’ve got the neurosurgeon, Hall, this afternoon, huh?” Darnell asked.
“Yeah. This one might be a tough one. Those guys hang together,” Fabian said. “Are you going to grace me with your presence this afternoon?”
“As a matter of fact, I’m free. I haven’t seen my old partner in a long time. I miss him,” Darnell said, his words dripping with sarcasm.
“What a major league asshole,” Fabian laughed. “You should have heard some of the cliché interruptions and ridiculous objections that came out of him. I was almost embarrassed for him—but not quite. He ought to be fun in front of a jury.”
“I told you he was a jerk. What time do we get started this afternoon?”
“Maybe never if you don’t let me finish my lunch,” Fabian snarled. “1:30.”
Darnell and Fabian were waiting with the court reporter when Woodall, Cohen, and Dr. James T. Hall entered the room. Darnell and Fabian both scowled at Woodall. He returned a dismissive glare. Cohen, on the other hand, decided to take the high road and smiled demurely at the two lawyers. She thought that she saw Fabian give her a quick wink, but she wasn’t sure whether it was just her imagination. She tried, unsuccessfully, to suppress a faint blush.
The doctor took a seat where directed by Woodall between Cohen and him. Fabian, after the doctor had been sworn by the court reporter began. He thoroughly explored the doctor’s education and credentials then delved into his experience with aneurysm surgeries. “Doctor Hall, do you currently perform aneurysm surgeries?”
Hall, who had a serious distaste for lawyers, particularly plaintiffs’ lawyers, was in the mood to spar. “No, I believe I’m currently in a lawyer’s office at a deposition.”
“Yes, Sir, you are, and you will be here for a much longer time than you had planned if you want to play word games.”
Hall stiffened. “Then be more precise in your questions, Sir!”
“Very well, Doctor. I will re-ask the question.”
“If you re-ask it, I will answer it the same way.”
Fabian looked at Darnell and shrugged as if to say, if he wants to play games, then let the games begin. I’ve got all afternoon and all night.
“Doctor, at the time of Joseph Gunther’s surgery on November 24, 2004, how long had it been since you performed an intracranial aneurysm surgery on a patient.” Precise enough?
The doctor rubbed his chin thoughtfully. “I’m not sure I can be accurate on that.”
“Is there any way you can check to see?”
“I probably can. I keep records of all surgeries I perform.”
“Then would you check your records and then let both Mr. Woodall and me know your answer?”
“I suppose I can do that.”
Fabian pressed ahead. “You have performed intracranial aneurysm surgeries in your career?”
“I’m certain I have.”
“Can you give me a ballpark figure as to how many you have performed?”
“No. It would be a wild guess.”
“Had you performed one within the last year preceding the November surgery of Joseph Gunther?”
“I can tell you I’m sure I had not. I quit doing them a good while ago.”
“And do you recall when you quit doing them?”
“Sometime in the eighties I believe.”
“Early or late eighties?”
“Early to mid, I’d say.”
Cohen interrupted. “Doctor, please answer only what you know to be a fact. Do not guess.”
“Ms. Cohen, this witness is not your client, and I would appreciate it if you would not tell him what to say or not to say in this deposition. If you have a proper objection, please state it. Otherwise, please allow me to ask my questions and allow the doctor answer them as he pleases. Agreed?”
Cohen, satisfied that she had accomplished her mission of reminding the doctor what her instructions to him were during his deposition preparation did not respond.
Fabian glared at Cohen but let the matter drop. He continued. “Do you recall what prompted you to not do these types of surgeries after you decided to quit, whenever that actually was?”
“Too many damned law suits,” the doctor spat.
“I’m glad you brought that up, Doctor. Have you ever been sued by a patient alleging that you committed medical negligence during your care and/or treatment of him or her?”
“Several,” said the irritated physician.
“Can you recall the precise number?”
“Three.”
“Do you recall what the three actions involved?”
Hall looked at Cohen and Woodall as if he were expecting them to object or to come to his aid. Neither offered any relief from the question.
Hall sighed and then inhaled deeply. “The first one was a spinal surgery. They said I took out the wrong disc.”
“Was that case tried?”
“No, it was settled.”
“Please continue.”
“The second one was a brain tumor that they said I didn’t completely remove. That one was thrown out by the judge. The last one was an aneurysm surgery. Bad result. The lady died. They said I killed her. I think they called it wrongful death. Complete nonsense in my opinion, but my lawyers and insurance company said we’d better settle. Something about my assets being in jeopardy if I went to trial. That’s about it.”
“Doctor, can you tell me how you came to be involved in Mr. Gunther’s surgery?”
“I was called by a nurse, I believe, and was asked to come in and assist Dr. Montgomery.”
“Do you recall what time you were contacted?”
“Well, I was on my way to my weekly bridge game at my country club. We always start around 1:00, so I would say it was probably sometime around 12:00 to a quarter past.”
“And do you know why you were asked to assist?”
“It was communicated to me that Dr. Montgomery needed another pair of experienced hands to help him with a difficult surgery that he was performing.”
“Had you ever heard of Joseph Gunther or had you ever discussed Mr. Gunther’s condition or planned surgery with Dr. Montgomery?”
“No to all of your questions. Never heard of him, never met him, never discussed anything about his planned surgery before I got that call.”
“Did you even know what kind of surgery you were asked to assist in prior to entering the operating room?”
“No idea.”
Fabian took long drink of coffee then suppressed a belch. “What were you asked to do as an assistant to Dr. Montgomery?”
“Basically, help keep the field clear with a sucker.”
“Were you asked to do anything to assist in the clipping of the aneurysms?”
“Even if I were asked, I wouldn’t have.”
“Can you tell me why?”
“First, I told you I don’t do these kinds of surgeries any more. Second, even if I were still doing them, it’s a little difficult for two of us to work simultaneously in such a small opening, and I wouldn’t be the one to operate—it was his patient, not mine.”
“Now, Doctor, it’s my understanding that you were reluctant to use the operating microscope that was available in the OR, is that true?”
“Yes.”
“And I am correct that such an instrument was available and had actually been used by Dr. Montgomery prior to your arrival?”
“It was there to be used if you wanted to. I wasn’t there during the surgery prior to my arrival, but I do believe Dr. Montgomery had used it during, at least, part of the surgery. I know he had loupes, too.”
