LymeNet Law Pages
Case History Document



Foley v. Klein, et al
Entered By: Ira M Maurer/LymeNetDate Created: 10/27/97
Document Type: Deposition
Title: Pre-Trial Testimony of Jack Brenner, M.D.
0001
1
2 SUPREME COURT OF THE STATE OF NEW YORK
3 COUNTY OF WESTCHESTER
4 -----------------------------------------------
5 Index No. 94/11520
6 ELIZABETH B. FOLEY and ROBERT J. FOLEY,
7 Plaintiffs,
8 -against-
9 DR. RICHARD S. KLEIN, et al.,
10 Defendant.
11 -----------------------------------------------
12
202 Mamaroneck Avenue
13 White Plains, New York 10601
May 2, 1996
14 11:30 A.M.
15
16
17 EXAMINATION BEFORE TRIAL
18 of
19
JACK BRENNER,
20 held at the above place and time,
before a Notary Public within and
21 for the State of New York.
22
23 MICHAEL CATANIA,
Reporter
24
25
WESTCHESTER REPORTING SERVICE
0002
1
2 APPEARANCES OF COUNSEL:
3
4 ELKIND, FLYNN & MAURER, P.C.
Attorneys for Plaintiffs
5 11 Martine Avenue
White Plains, New York 10606
6
BY: IRA M. MAURER, ESQ.
7
8
DU BOIS, BILLIG, LOUGHLIN, CONATY & WEISMAN
9 Attorneys for Defendants Klein and Daniels
195 Lake Louise Marie Road
10 Rock Hill, New York 12775
11 BY: INGRID VANZON, ESQ.
12
13 WILSON, BAVE, CONBOY, COZZA & COUZENS
Attorneys for Defendant Brenner
14 2 William Street
White Plains, New York 10601
15
BY: MICHELE FOURNIER, ESQ.
16
17
RENDE, RYAN & DOWNES, L.L.P.
18 Attorneys for Defendant
Northern Westchester Hospital
19 202 Mamaroneck Avenue
White Plains, New York 10601
20
BY: ANTHONY J. IACONIS, ESQ.
21
22
23
24
25
WESTCHESTER REPORTING SERVICE
0003
1
2
3 IT IS HEREBY STIPULATED AND AGREED, by
and between the attorneys for the
4 respective parties hereto, that all rights
provided by the Civil Practice Law and
5 Rules, including the right to object to any
question, except as to form, or to move to
6 strike any testimony of this examination
are reserved, and, in addition, the failure
7 to object to any question shall not be a
bar or waiver to make such motion at, and
8 is reserved for the trial of this action.
9
10 IT IS FURTHER STIPULATED AND AGREED,
that this examination may be signed and
11 sworn to by the witness being examined
before a Notary Public other than the
12 Notary Public before whom this examination
was begun, but the failure to do so, or to
13 return the original of this examination to
counsel, shall not be deemed waiver of any
14 rights.
15
16 IT IS FURTHER STIPULATED AND AGREED,
that the filing of the original of this
17 examination is waived.
18
19
20
21
22
23
24
25
WESTCHESTER REPORTING SERVICE
0004
1
2 JACK BRENNER,
3 having been first duly sworn by
4 MICHAEL J. CATANIA, a Notary Public
5 within and for the State of New York,
6 was examined and testified as
7 follows:
8
9
10 oOo
11
12 EXAMINATION CONDUCTED
13 BY MR. MAURER:
14 Q. State your name and address for
15 the record, please.
16 A. Jack Brenner, 1940 Commerce
17 Street, Yorktown Heights, New York 10598.
18 Q. Doctor, before we get started
19 with the deposition, I want to place on the
20 record the fact that I am providing some
21 authorizations pursuant to requests by
22 various defense counsel.
23 I am giving the Wilson firm
24 authorizations addressed to Croton
25 Diagnostic & Rehabilitation Center, James
WESTCHESTER REPORTING SERVICE
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1 JACK BRENNER
2 Drugs, Frederick Foeppel, Larry Rochmacker,
3 Dr. Daniel Cameron, Dr. Richard Sweet,
4 Northern Westchester Hospital Center,
5 emergency room records and also in-patient
6 records, Dr. Richard Klein, White Plains
7 Hospital, Northern Westchester Hospital
8 Center radiology department and Dr. Bruce
9 Heckman.
10 MR. IACONIS: Are you giving
11 those to just Wilson Bave?
12 MR. MAURER: The DuBois firm
13 had many of those authorizations already
14 and they will be receiving authorizations
15 for Dr. Sweet, James Drugs and
16 Dr. Heckman. The Rende Ryan firm will get
17 the same authorizations as the Billig firm.
18 MR. IACONIS: Thank you.
19 MR. MAURER: There were
20 authorizations requested for a Doctor
21 Landis who I am informed retired in 1974
22 and may be dead. So I don't have one for
23 Doctor Landis. There is a Doctor Tack and
24 my clients have no idea who that is so that
25 there is no authorization.
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1 JACK BRENNER
2 MR. IACONIS: Do you know who
3 took over the deceased physician's
4 practice?
5 MR. MAURER: Saint Peter.
6 MR. IACONIS: Who may have the
7 deceased physician's records?
8 MR. MAURER: No knowledge. If
9 you determine who if anyone did let me
10 know.
11 MR. IACONIS: Okay.
12 Q. Doctor, as I told you off the
13 record, I am Ira Maurer. I represent the
14 plaintiffs in this case. I am sure defense
15 counsel has given you some instructions but
16 I would like to give you some myself to
17 make sure that we are clear about certain
18 things.
19 First of all, all responses have
20 to be verbal for the reporter to take down
21 because he cannot take down a nod.
22 I have to ask you to wait until
23 questions are completed before you respond
24 because it is difficult to get an accurate
25 record if we talk simultaneously. You may
WESTCHESTER REPORTING SERVICE
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1 JACK BRENNER
2 not get my full question if you answer
3 before I am done. Keep your voice up so
4 that we can hear you.
5 If there is anything that you do
6 not understand, please let me know. I
7 would appreciate it if you can let me know
8 the specific part of the question so that I
9 can correct the question and then we can
10 move on.
11 If I don't hear anything from you
12 I have to assume that you understand my
13 questions.
14 Do you understand what I have
15 said?
16 A. Sounds reasonable to me.
17 Q. Okay. Doctor, could you tell me
18 what your medical training background is
19 starting with where you went to medical
20 school?
21 A. Went to the University of Rome in
22 Italy and graduated in 1968. I did my
23 internship at St. Barnabas Medical Center
24 in New Jersey. I did '68 to '69 -- I did a
25 residency in internal medicine at the Bronx
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1 JACK BRENNER
2 VA Hospital ending in 1971.
3 I did a two-year fellowship in
4 gastroenterology in Mt. Sinai Hospital in
5 New York. I finished training in 1973. I
6 have been in the practice of
7 gastroenterology in Yorktown Heights since,
8 I guess, July of 1973.
9 Q. Are you board certified in any
10 particular area?
11 A. Yes, I am.
12 Q. In what area?
13 A. I am board certified in internal
14 medicine and in gastroenterology.
15 Q. When did you become board
16 certified?
17 A. I believe it was in 1974 and 1975
18 but I am not absolutely positive. It was
19 '74 and '75, I think.
20 MS. FOURNIER: We can provide
21 you with a CV with the transcript.
22 Q. Doctor, how long have you known
23 Dr. Richard Klein?
24 A. 27 years.
25 Q. Has Dr. Klein been a source of
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1 JACK BRENNER
2 professional referrals for you?
3 A. Yes, he has.
4 Q. Approximately how many referrals
5 would you guesstimate he has given or made
6 to you over the years?
7 A. Counsel, I could not even guess.
8 Q. More than a hundred?
9 A. Yes.
10 Q. More than 200?
11 A. Yes.
12 Q. Doctor, do those numbers include
13 referrals, if any, from Dr. Klein's former
14 partner, Dr. Daniels?
15 A. Yes.
16 Q. Doctor, incidentally, have you
17 ever given sworn testimony in a deposition
18 prior to today?
19 MS. FOURNIER: Note my
20 objection. Don't answer the question. It
21 is not relevant. I am not going to allow
22 him to answer.
23 MR. MAURER: I am not going to
24 ask him the names of the cases. I just
25 want to know whether he has any experience.
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1 JACK BRENNER
2 MS. FOURNIER: I will not
3 allow him to answer that question.
4 MR. MAURER: Okay.
5 ** COUNSEL DIRECTS WITNESS NOT TO ANSWER
6 BY MR. MAURER:
7 Q. Have you ever socialized were
8 Dr. Klein?
9 A. Yes.
10 Q. Under what circumstances did you
11 socialize with Dr. Klein?
12 MS. FOURNIER: Note my
13 objection.
14 MS. VANZON: Objection.
15 MS. FOURNIER: You can answer
16 it.
17 A. We have gone out to dinner
18 together. We have gone to the opera
19 together. We have -- the way people
20 socialize. I don't really know what you
21 mean.
22 Q. You responded and I think you
23 understood the question based upon what you
24 said.
25 A. Okay.
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1 JACK BRENNER
2 Q. Do you belong to any
3 organizations or clubs that Dr. Klein
4 belongs to?
5 MS. FOURNIER: Note my
6 objection. What is the relevance of this?
7 MR. MAURER: Bias.
8 MS. FOURNIER: Note my
9 objection. You can answer it. I don't
10 want an extensive line of questioning in
11 this vein.
12 MS. VANZON: Objection.
13 A. We used to belong to the same
14 synagogue.
15 Q. Beth Torah?
16 A. No, we used to belong to the
17 Yorktown Jewish Center together. I still
18 belong and he doesn't. He moved. We
19 belong to a wine society together. I guess
20 that's really about it.
21 MR. IACONIS: Off the record.
22 (Discussion off the record.)
23 BY MR. MAURER:
24 Q. Doctor, are you aware that
25 Dr. Klein is running for a U.S.
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1 JACK BRENNER
2 Representative's position?
3 MS. FOURNIER: Note my
4 objection. Don't answer the question.
5 This is outside the scope of this
6 deposition.
7 ** COUNSEL DIRECTS WITNESS NOT TO ANSWER
8 MR. MAURER: I don't think so
9 at all.
10 MS. FOURNIER: I do, so have
11 it marked for a ruling.
12 MR. MAURER: I want to know if
13 he has taken any affirmative action to
14 participate in Dr. Klein's campaign for
15 public office.
16 MS. FOURNIER: It has nothing
17 to do with this deposition and your
18 allegations of medical malpractice. I will
19 not allow him to answer that question.
20 MR. MAURER: Okay. We will
21 mark it for a ruling.
22 ** THIS QUESTION MARKED FOR COURT RULINGS:
23 --------------------------------------
24 BY MR. MAURER:
25 Q. Doctor, when you are involved in
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1 JACK BRENNER
2 working up a client to arrive at a
3 diagnosis or diagnoses, is it commonly your
4 practice to have tests performed on a
5 patient?
6 A. Yes.
7 Q. Doctor, generally has your
8 practice in terms of determining what tests
9 you are going to run on a given patient
10 changed in any way over the years or have
11 you taken the basic approach throughout
12 your medical career in how you approach
13 determining what tests should be run?
14 MS. FOURNIER: Note my
15 objection to form.
16 Do you understand the question?
17 THE WITNESS: Yes, I do, but
18 it is a vague, very broad question.
19 Q. I will break it down for you.
20 A. I would like you to be a bit more
21 specific about what you mean.
22 Q. Sure. No problem. That's
23 exactly what I asked you to do. When you
24 are making a decision about what tests to
25 run on a patient, while you are working up
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1 JACK BRENNER
2 the patient to arrive at a diagnosis, are
3 there certain factors that you normally
4 consider, generally speaking, and I am not
5 making reference to any specific type of
6 condition, but generally speaking the
7 certain factors you consider in deciding
8 what tests to run?
9 MS. FOURNIER: Note my
10 objection. The question is very general.
11 MR. MAURER: You are correct.
12 I will get more specific.
13 MS. FOURNIER: Can you answer
14 it?
15 A. Can you repeat the question.
16 MR. MAURER: Read the
17 question.
18 (The pending question was read.)
19 A. The answer to your question is
20 yes.
21 Q. What do you do in that regard
22 generally?
23 A. You do a history and a physical
24 examination of the patient and based upon
25 your findings you order tests that would be
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1 JACK BRENNER
2 in your opinion most likely to give you a
3 diagnosis.
4 Q. Prior to July 30, 1992 did you
5 have any education or training on the
6 subject of Lyme disease?
7 A. Not a lot. I am a
8 gastroenterologist and as such I have had
9 very little opportunity to treat people
10 with Lyme disease. My practice is the
11 practice of gastroenterology, and those of
12 my patients who had that disease or those
13 patients who you saw were treated by their
14 own physicians or other people, and so I
15 would say that, although, I as a physician
16 did some reading off and on, I would say
17 that when you say some education, I take it
18 to mean, and I may be wrong, did I have
19 special education in this area and my
20 answer to that would be no.
21 MR. MAURER: I move to strike
22 the nonresponsive portion of the response.
23 Q. What reading off and on did you
24 do with regard to the subject of Lyme
25 disease, doctor?
WESTCHESTER REPORTING SERVICE
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1 JACK BRENNER
2 A. I have read some textbooks,
3 occasional articles.
4 Q. Can you identify any of the
5 textbooks or occasional articles?
6 A. Not offhand.
7 Q. Do you have them in your office?
8 A. I do not.
9 Q. Do you know where you were when
10 you read the textbooks or occasional
11 articles?
12 A. I don't remember.
13 Q. Over what time period did you
14 read the textbooks or occasional articles
15 prior to July 30, 1992?
16 A. It is hard to say.
17 Q. Did you read any textbooks or do
18 any of the off and on reading of articles
19 prior to 1980?
20 A. Counsel, I don't remember.
21 Q. Did there come a time when you
22 had the opportunity to meet and evaluate
23 the medical condition of Mrs. Elizabeth
24 Foley?
25 A. Yes.
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1 JACK BRENNER
2 Q. What were the circumstances of
3 you having that opportunity?
4 A. I was asked by Dr. Richard Klein
5 to see her after she had been admitted to
6 Northern Westchester Hospital for the
7 treatment of diarrhea.
8 Q. Prior to starting this
9 deposition, did you review any documents in
10 preparation for your deposition?
11 A. Yes, I did.
12 Q. What documents did you review?
13 A. My office record.
14 Q. Do you have that here today?
15 A. I do.
16 Q. Could you produce it, please.
17 MR. MAURER: The records I
18 received from your counsel contain
19 everything in this file except the color
20 photographs obtained during the colonoscopy
21 procedure you performed on 8/6/92.
22 MS. FOURNIER: I will be happy
23 to give you a copy. It probably was a
24 secretarial inadvertence.
25 MR. MAURER: If you can
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1 JACK BRENNER
2 produce a copy, for me please, a
3 reproduction.
4 MS. FOURNIER: Yes.
5 MR. MAURER: I was not given a
6 copy of a document entitled Record of
7 Hospital Visits which I would like to have
8 a copy of.
9 MS. FOURNIER: No problem.
10 BY MR. MAURER:
11 Q. With regard to the record of
12 hospital visits there is some indication
13 where it says the 22nd day and the 24th day
14 on the line entitled initial care-brief and
15 it refers to an admission date in
16 September, it looks like, could you tell me
17 if I am accurate in how I am reading this?
18 A. Yes. This refers to a
19 consultation in September. That is
20 correct. Then a follow-up visit.
21 Q. Your first consultation was
22 actually during Mrs. Foley's first hospital
23 admission for which she was admitted July
24 30, 1992; is that correct?
25 A. Correct.
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2 Q. I don't see a hospital visit
3 record in your file for that. Is there
4 one?
5 A. I don't know. You have the
6 complete chart. I am not sure.
7 Q. Also, in your chart you have a
8 statement which makes reference to multiple
9 dates and a charge of $1,395 as a total for
10 all the dates. It is not broken up, is
11 that correct, in terms of the charge?
12 A. That is correct.
13 Q. Is there anything in your records
14 that you did not produce here today which
15 provides some sort of a breakdown which
16 most insurance companies require when you
17 submit a bill?
18 A. No.
19 Q. Could you tell me the dates that
20 you saw Mrs. Foley as indicated on the
21 statement in your chart?
22 A. Okay.
23 MS. FOURNIER: Are those the
24 dates you saw her?
25 THE WITNESS: I think these
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2 are the dates I saw her. 7/30 through
3 8/6. I think I saw her every day. You
4 know, I am not absolutely certain here. I
5 believe this means that -- this means that
6 I saw her every day between 7/30 and 8/6.
7 Q. Can you show me what you are
8 pointing to with your finger?
9 A. Right there, 7/30 to 8/6.
10 Q. There is other information that
11 precedes that?
12 A. Those are codes which I am not
13 familiar with. Those are codes that people
14 who make out the bills use to bill --
15 MS. FOURNIER: To indicate the
16 procedure?
17 THE WITNESS: Yes, to indicate
18 what was done, and so forth.
19 Q. Do those codes have any relevance
20 to diagnoses?
21 A. I don't do the coding. I am not
22 sure. I simply give my staff the
23 information as to when I saw the patient
24 and then they do the coding.
25 MR. MAURER: Let's mark as
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2 Plaintiffs' Exhibit No. 1 my copy of
3 Dr. Brenner's original statement for
4 billing purposes.
5 (Plaintiffs' Deposition Exhibit 1
6 was marked for identification. Exhibit
7 retained by counsel.)
8 BY MR. MAURER:
9 Q. Doctor, one of the tests you
10 ordered for Mrs. Foley during her admission
11 commencing 7/30/92 to Northern Westchester
12 Hospital Center was a Lyme disease test; is
13 that correct?
14 A. That is correct.
15 Q. What kind of test did you order?
16 A. I ordered a Lyme titre.
17 Q. How is a Lyme titre used to make
18 a diagnosis of Lyme disease?
19 A. I am not expert in Lyme disease.
20 My understanding of it is that it is a
21 screening test for exposure to an organism
22 that causes Lyme disease.
23 Q. Does the test show whether the
24 organism that causes Lyme disease is
25 present?
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2 A. No.
3 Q. What does it demonstrate?
4 A. It demonstrates the presence of
5 protein substance called antibodies to
6 parts of the organism that cause Lyme
7 disease.
8 Q. By the way, besides reviewing
9 your chart, did you do any research on Lyme
10 disease prior to coming here today?
11 A. I did not.
12 Q. Other than what you have told me?
13 MS. FOURNIER: I will object.
14 MS. VANZON: Objection.
15 MR. IACONIS: I will object.
16 Q. Other than what you have already
17 told me that you have done in reading on
18 and off textbooks and occasional articles,
19 did you do any recent research on Lyme
20 disease in preparation for your deposition
21 today?
22 MS. VANZON: Objection.
23 MR. IACONIS: Objection.
24 MS. FOURNIER: Objection.
25 A. No.
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2 Q. A positive Lyme disease test such
3 as what you ordered for Mrs. Foley, does it
4 provide a basis in and of itself to make a
5 diagnosis of Lyme disease without any other
6 information?
7 A. I don't think so. But again this
8 is not my area of expertise.
9 Q. What was your understanding at
10 the time you ordered the Lyme disease test
11 for Mrs. Foley as to the criteria to be
12 used in making a diagnosis of Lyme
13 disease?
14 A. I don't recall what I thought
15 about it at the time.
16 Q. Has your knowledge of what
17 criteria is to be used to reach a diagnosis
18 of Lyme disease changed since July/August
19 1992?
20 MS. FOURNIER: Note my
21 objection.
22 A. I don't think about Lyme disease
23 a lot. I am a gastroenterologist. I don't
24 see this disease a lot. I am not asked to
25 diagnose it. That really is essentially my
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2 answer to you.
3 MR. MAURER: I move to strike
4 the response as nonresponsive to the
5 question asked.
6 Q. What I would like to know is
7 since you cannot remember what you thought
8 about back in July/August 1992 in terms of
9 criteria that you were aware of for making
10 the diagnosis for Lyme disease, I am trying
11 to find out if your knowledge base has
12 changed from that time to now and if it has
13 not then I will ask you for your current
14 understanding. Has your knowledge changed
15 in that regard?
16 MS. FOURNIER: Note any
17 objection. He has testified that he does
18 not deal with Lyme disease. He is not a
19 physician that is involved in diagnosing
20 nor treating patients with Lyme disease.
21 If you want to ask him what was the
22 indication for ordering the test for
23 Mrs. Foley, I will allow that.
24 MR. MAURER: Are you directing
25 him not to answer the last question, and if
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2 you are then we stop now and go for a
3 ruling. I will not let you do that.
4 MS. VANZON: How can he know
5 if it changed at all if he cannot remember
6 what he knew back then?
7 MR. MAURER: I asked him a
8 question which helps me to get an answer
9 which is reasonable. I prefer that you not
10 engage in speaking objections. If you are
11 going to direct him not to answer,
12 otherwise I want an answer.
13 MS. FOURNIER: You can
14 rephrase the question and you don't need to
15 get testy about it. I am asking you to
16 rephrase the question and taking into
17 consideration that he is not an expert in
18 Lyme disease and he does not treat patients
19 with Lyme disease nor does he diagnosis
20 these people.
21 MR. MAURER: Nothing what you
22 have said is relevant to what the answer
23 should be. I am not getting testy. The
24 reporter can read it back.
25 (The record was read as
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1 JACK BRENNER
2 requested.)
3 BY MR. MAURER:
4 Q. Can you answer that question?
5 A. I cannot think of any particular
6 changes.
7 Q. Then based upon your response to
8 that question and the previous one that was
9 just read back, what is your understanding
10 as to what criteria are considered when
11 making a diagnosis of Lyme disease?
12 A. A history of exposure to deer
13 ticks, presence of a tick bite is helpful.
14 There is a skin lesion that is often seen.
15 There are -- and there is a positive test.
16 Then there are other signs and symptoms.
17 Q. Such as what?
18 A. Headache, stiff neck, joint
19 pains, the typical skin rash. I guess
20 those would be the main signs.
21 Q. What about a fever?
22 A. Fever is seen sometimes.
23 Q. What about swollen glands?
24 A. Sometimes.
25 Q. Is it a fair statement to say
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1 JACK BRENNER
2 that among other things you look for
3 evidence of a systemic infection?
4 MS. FOURNIER: If you know.
5 A. No.
6 Q. That is not a fair statement?
7 A. No.
8 Q. Why is it not a fair statement?
9 A. You know what. Let me -- could
10 you be more specific what you mean by
11 that?
12 Q. Is Lyme disease a disease that
13 that causes a systemic infection in human
14 beings?
15 A. Yes.
16 Q. When considering criteria that
17 would assist you as a physician in
18 determining whether a patient suffers from
19 Lyme disease, would you look for evidence
20 of a systemic infection?
21 MS. FOURNIER: Note my
22 objection to this line of questioning.
23 This doctor has no training in Lyme
24 disease, does not treat nor diagnosis
25 patients.
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1 JACK BRENNER
2 Q. Go ahead, doctor.
3 MS. FOURNIER: If you cannot
4 answer these questions, then don't.
5 MS. VANZON: I will object.
6 MR. MAURER: I will stop this
7 deposition if you direct this witness not
8 to answer questions with speaking
9 objectionS because it is totally improper
10 to do this, telling him not to answer
11 questions and suggesting that he not know
12 the answer is improper.
13 MS. FOURNIER: I am not
14 suggesting that.
15 MR. MAURER: I think that the
16 record shows that you are. We are not
17 going to finish if you do this.
18 MS. FOURNIER: Not at all. I
19 would be happy to go for a ruling if you
20 want. There is no problem with that.
21 MS. VANZON: I will object on
22 grounds that the doctor is here not as an
23 expert in Lyme but as a fact witness.
24 MS. FOURNIER: He also is a GI
25 consult. It is appropriate to ask him for
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1 JACK BRENNER
2 his care and treatment and any GI questions
3 that you would like to. I want a ruling
4 then as far as Lyme disease.
5 MR. MAURER: You don't think
6 that I am entitled to find out what
7 knowledge bases he had when he has already
8 testified that he will order any tests
9 which would be most likely to give him a
10 diagnosis when evaluating a patient. You
11 want a ruling on that, then let's go.
12 Let's go. That's a total waste of time.
13 He clearly made out a basis for me delving
14 into this area.
15 MS. FOURNIER: I don't think
16 that the last question was appropriate at
17 all.
18 MR. MAURER: I have a right to
19 know what knowledge he has about Lyme
20 disease and what approaches he would make
21 as a physician, and since he ordered a Lyme
22 disease test on the plaintiff in this
23 action, it is totally proper for me to
24 delve into this.
25 MS. FOURNIER: Read back the
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1 JACK BRENNER
2 last question.
3 (The pending question was read.)
4 MS. FOURNIER: If you can,
5 answer it.
6 A. Well, you always look. The
7 answer is yes, you would look for -- yes.
8 Q. When looking for evidence of a
9 systemic infection, would a fever be
10 consistent with a systemic infection?
11 A. Yes.
12 Q. How about swollen glands?
13 A. Not necessarily.
14 MS. FOURNIER: Asked and
15 answered.
16 A. No, not necessarily.
17 Q. How about diarrhea?
18 A. No.
19 Q. In your experience as a
20 gastroenterologist, do you ever treat
21 patients who have a systemic infection, who
22 have a diarrhea component to their
23 illness?
24 A. I --
25 Q. For example, a stomach flu?
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2 A. You see, now that is a
3 complicated question. Systemic really
4 implies that the disease is not limited to
5 one organ system.
6 MR. IACONIS: I will object to
7 the form of the question.
8 MS. FOURNIER: Note my
9 objection.
10 A. Systemic means that a lot of
11 organ systems are involved. Many people
12 with diarrhea have their diarrhea related
13 to their GI tract.
14 Q. Do any of your patients have
15 diarrhea in conjunction with a systemic
16 infection, in your experience?
17 MS. FOURNIER: Note my
18 objection.
19 MS. VANZON: I object to the
20 question.
21 MR. IACONIS: Objection.
22 A. Usually because of the
23 antibiotics they are taking.
24 Q. Could you explain your response,
25 please?
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2 A. Sure. Some people have problems
3 with another organism not a
4 gastoenterological problem and they go to
5 their physician for a form of treatment and
6 the antibiotics produce the diarrhea.
7 Antibiotics do that.
8 MS. FOURNIER: You answered
9 the question.
10 Q. Doctor, can Lyme disease cause
11 diarrhea?
12 A. Rarely.
13 Q. What have you read about the
14 subject?
15 MS. FOURNIER: Asked and
16 answered. He told you what he did read.
17 MS. VANZON: I will object to
18 the entire line of questioning because he
19 is not an expert in Lyme disease. He is
20 here as a fact witness. He should be
21 testifying as to his treatment of the
22 plaintiff only.
23 MS. FOURNIER: I will let him
24 testify with respect to the indications of
25 ordering the Lyme test and the titre and
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2 what the results meant to him, but as far
3 as any expert testimony on this I would be
4 happy to go for a ruling, but I will not
5 allow him to continue answering these
6 questions.
7 MR. MAURER: He is not being
8 asked expert questions. I am asking him
9 for his knowledge base at the time and not
10 opinions. This is totally improper to
11 object to questions when I am asking for
12 his knowledge base.
13 MS. VANZON: You are asking
14 him for his opinions on what the symptoms
15 are of Lyme disease, fever, systemic
16 infection and whatever other symptom you
17 brought up with respect to Lyme disease.
18 You may be covering it with respect to
19 being covered by a systemic infection.
20 Previously you said systemic infection is
21 part of Lyme disease.
22 MS. FOURNIER: You are asking
23 him expert questions. I will not allow
24 this to go on. This is not appropriate.
25 He is not an expert in Lyme disease.
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2 (Witness and counsel confer.)
3 BY MR. MAURER:
4 Q. Doctor, in the course of working
5 as a gastroenterologist and board certified
6 internist, is it necessary for you to have
7 knowledge of conditions that you may not
8 touch upon more than occasionally?
9 MR. IACONIS: Objection to
10 form. I don't know if the doctor has
11 testified that he practices as an
12 internist.
13 Q. Do you practice as an internist
14 at all, doctor?
15 A. No.
16 MS. FOURNIER: Objection.
17 Q. I will limit the prior question
18 to practice as a gastroenterologist.
19 A. I don't mean to be cavalier about
20 this. Can he read it back.
21 (The record was read as
22 requested.)
23 Q. I will ask a new question.
24 Doctor, in the practice of
25 gastoenterology, is it necessary for you to
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2 have a working knowledge of conditions
3 which you may only have occasional contact
4 with?
5 A. It is helpful, but not necessary.
6 Q. How is it helpful but not
7 necessary?
8 A. Really, I can't think of an
9 instance where such knowledge would be put
10 to direct use. The nature of my practice
11 is such that I am asked to give my opinion
12 on gastroenterologic matters, on matters
13 of -- on GI problems. My opinions on
14 problems outside of this area are not
15 sought. They are not -- they don't -- they
16 are simply not sought; so I suppose that
17 there might come an instance where --
18 MS. FOURNIER: You answered
19 the question.
20 MR. MAURER: I object to your
21 cutting off his answer.
22 MS. FOURNIER: He answered the
23 the question.
24 THE WITNESS: I do
25 gastroenterology.
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2 MS. FOURNIER: You answered
3 the question.
4 MR. MAURER: You cut him off.
5 He was still talking.
6 MS. FOURNIER: He answered the
7 question.
8 MR. MAURER: And you cut him
9 him off while he was answering. You cannot
10 gag your witness. That's improper.
11 MS. FOURNIER: I can direct
12 him not to answer. This line of
13 questioning is totally out of line. I will
14 allow him to answer a lot of questions.
15 Q. Doctor, did Dr. Klein or Dr.
16 Daniels or any other doctor ask you to
17 order a Lyme disease test on Mrs. Foley
18 before you ordered the test?
19 A. No.
20 Q. Did anyone, whether it was a
21 medical professional or not, ask you to run
22 the test?
23 A. No.
24 Q. Did you ask anyone, any physician
25 such as Dr. Klein or Dr. Daniels, to have a
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2 test run on Mrs. Foley as opposed to
3 ordering it yourself having to do with the
4 subject of Lyme disease?
5 MS. VANZON: Can you read that
6 back.
7 MR. MAURER: I will rephrase.
8 Q. During Mrs. Foley's hospital
9 admission of July and August '92, did you
10 ask Dr. Klein or Dr. Daniels or any other
11 doctor to have a Lyme disease test run on
12 Mrs. Foley?
13 A. I don't remember. I don't think
14 so, but I don't remember.
15 Q. Does looking at the hospital
16 records or your office records assist you
17 in recalling?
18 A. No.
19 MR. IACONIS: I think that the
20 doctor must have misunderstood the
21 question.
22 MR. MAURER: How could you
23 know what he misunderstood?
24 MS. FOURNIER: Off the
25 record.
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2 (Discussion off the record.)
3 BY MR. MAURER:
4 Q. Based upon our off-the-record
5 discussion, doctor, is the answer to my
6 prior question no, you did not ask any
7 other physician to have a Lyme test run on
8 Mrs. Foley during her first admission to
9 Northern Westchester Hospital Center?
10 A. No, I did not.
11 Q. Doctor, earlier in the deposition
12 you told me that when considering what
13 tests to have run on a patient when working
14 up the patient to reach a diagnosis that
15 you ordered that it would be most likely to
16 give you a diagnosis.
17 My question is, why did you
18 consider Lyme disease, a Lyme disease test,
19 to be a test that would be most likely to
20 give you a diagnosis in the case of
21 Mrs. Foley during her first hospitalization
22 during July and August of 1992?
23 MS. FOURNIER: Objection to
24 form. I don't think that he said that
25 about the Lyme disease test then.
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2 MS. VANZON: He said that in
3 general about the tests.
4 MS. FOURNIER: Right, that was
5 general tests.
6 A. I didn't say what you said I
7 said. I said that ---
8 MR. IACONIS: I will object to
9 the form of the question?
10 A. I said that when you evaluate --
11 the question to me was how do you go about
12 choosing the tests you order and my answer
13 was that you choose them based on a certain
14 protocol. You do a history, a physical
15 examination and then you do the most likely
16 test first and then the less likely tests
17 second and the least likely tests third,
18 fourth, fifth and sixth.
19 MS. FOURNIER: Can we take a
20 minute?
21 (Recess taken.)
22 MR. MAURER: Let the record
23 reflect that counsel has taken the doctor
24 out for a consult.
25 BY MR. MAURER:
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2 Q. Doctor, can the Lyme test that
3 you ordered for Mrs. Foley result in a
4 false positive or false negative?
5 A. What do you mean can it result
6 in? Do you mean could it be false positive
7 or false negative?
8 Q. Yes.
9 A. Yes. Since it was positive it
10 cannot be false. You see a test cannot be
11 false negative if it is positive. It can
12 only be a false positive if it is positive.
13 Q. Can someone have Lyme disease and
14 have a negative antibody --
15 MR. IACONIS: Objection to
16 form.
17 A. Yes.
18 Q. To your knowledge, must a patient
19 be infected with a Lyme disease bacteria
20 for any length of time before they will
21 develop a sufficient number of antibodies
22 to have a positive antibody test?
23 MS. FOURNIER: Objection.
24 Again we are back on the Lyme.
25 MR. MAURER: That's right.
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2 (Witness and counsel confer)
3 A. The answer is no, because some
4 people can have a positive test even if
5 they have never been infected with the Lyme
6 disease bacterium. For example, if they
7 have had syphilis or had an infection with
8 another organism that is in that group of
9 organisms. Lastly, some people say, and I
10 am not an expert, that 10 percent of the
11 population in endemic areas has a positive
12 test and they don't have the disease.
13 Q. Where did you get that data from?
14 A. I don't remember.
15 MS. FOURNIER: Just answer the
16 question.
17 THE WITNESS: Okay.
18 Q. Prior to July 30, 1992 did you
19 routinely read any medical journals to keep
20 up on different things going on in
21 medicine?
22 A. Yes.
23 Q. What medical journals did you
24 routinely read prior to July 30, 1992?
25 A. Gastroenterology, occasionally
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2 the New England Journal of Medicine,
3 Current Gastroenterology.
4 Q. How about JAMA?
5 A. I rarely read it.
6 Q. As of July 30, 1992 were you
7 aware of any doctors who you considered to
8 be an expert on the subject of Lyme
9 disease?
10 A. No.
11 Q. Doctor, on July 30, 1992, the
12 first date you saw Mrs. Foley at the
13 hospital, what were her clinical symptoms
14 or complaints?
15 MS. FOURNIER: You can use the
16 hospital record.
17 THE WITNESS: That's okay.
18 She had severe diarrhea and fever.
19 Q. Anything else?
20 A. I --
21 Q. Please look at the record. There
22 is no point in guessing, doctor.
23 A. And she had some abdominal pain.
24 Q. Could you identify for the record
25 what specific portion of the hospital chart
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2 you have referred to in order to provide
3 your last response?
4 A. I looked at my note of when I
5 saw -- I looked at my note.
6 Q. Located in what part of the
7 chart?
8 A. Located in the doctor's progress
9 notes dated 7/30.
10 Q. Did you make a working diagnosis
11 or reach a working diagnosis on that date?
12 A. Yes, I did.
13 Q. What was it?
14 A. I felt that she had infectious
15 diarrhea.
16 Q. Caused by what type of infection?
17 A. Well, I didn't know.
18 Q. What did you do to find out?
19 A. We did stool cultures, checked
20 her stool for ova and parasites. She had
21 blood cultures.
22 Q. What type of blood cultures?
23 A. She had blood cultures of the
24 type where blood samples are taken at
25 intervals and cultured.
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2 Q. For what?
3 A. For all pathogenic organisms.
4 Q. Including the Lyme disease
5 bacteria?
6 A. I don't know the answer to that.
7 Q. Please look at the chart and see
8 if you can provide an answer, doctor, and
9 take your time.
10 (Witness and counsel confer.)
11 MS. FOURNIER: Note my
12 objection. He did not order the blood
13 cultures. He had nothing to do with the
14 blood cultures.
15 MR. MAURER: He said that and
16 I asked him what did you do to find out
17 what type of infectious process was there
18 and he said that he did stool cultures and
19 blood cultures.
20 MS. FOURNIER: Did you order
21 the blood cultures?
22 THE WITNESS: Not personally.
23 MS. FOURNIER: He is asking
24 you what you did.
25 THE WITNESS: Okay. Here we
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2 go. I did not --
3 Q. Doctor, based upon your review of
4 the record and your consultation with
5 counsel, are you able to provide a response
6 as to what cultures, if any, you personally
7 ordered?
8 (Witness and counsel confer.)
9 A. I personally did not order any
10 cultures.
11 Q. Doctor, could you open the
12 hospital chart for the admission that we
13 are discussing and show me the note you
14 made in the doctor's progress notes for
15 July 30, 1992, please.
16 A. Sure.
17 Q. Thank you. Which is yours?
18 A. The one signed Brenner here.
19 Q. So that it is the bottom half of
20 the page?
21 A. That is correct.
22 Q. Could you read that into the
23 record word for word the way you wrote it?
24 A. GI note 7/30 GI note patient seen
25 note it dictate impression -- strike -- GI
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2 note, patient seen-note dictated. IMP
3 which is short for impression; infectious
4 diarrhea, rule out IBD (doubt) rule out
5 ischemia, rule out recurrent CBD stone, CBD
6 is in parentheses -- no, I am sorry, just
7 CBD stone. The next line, suggest agree
8 with Cipro while cultures pending as well
9 as limited oral intake and IV fluids would
10 sigmoidoscope as well. Thanks. Will
11 follow note that ultrasound has been
12 ordered and, signed J. Brenner.
13 Q. What is IBD an acronym for?
14 A. Inflammatory bowel disease.
15 Q. What does CBD stone refer to?
16 A. Common bile duct stone.
17 Q. Is the common bile duct part of
18 the gall bladder?
19 A. No.
20 Q. Would you expect to find a common
21 bile duct stone in a patient who has had
22 their gall bladder removed?
23 MR. IACONIS: Objection to
24 form.
25 MS. FOURNIER: Objection.
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2 A. It can happen.
3 Q. Is it something that you would
4 expect to happen years after the gall
5 bladder has been removed?
6 A. It can happen years after. I
7 think -- it can happen years after, yes.
8 Q. Could you explain your last
9 answer, please?
10 A. Yes, I can. The problem with
11 gallstones is not the gall bladder, it is
12 your bile. People who have gallstones have
13 what is called lithogenic bile. Their bile
14 contains too much cholesterol. The reason
15 that gallstones form in the gall bladder is
16 because that is where the bile sits and is
17 concentrated and the cholesterol
18 precipitates out. Removing the gall
19 bladder does not make the bile less
20 lithogenic and so stones can form again.
21 Q. When was the next time you saw
22 Mrs. Foley after the consult on July 30,
23 1992? Was it the next day?
24 A. Let's see.
25 Q. Your billing statements indicate
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2 that you saw her every day from July 30 to
3 August 6.
4 Could you find your note for July
5 31, please?
6 A. I don't see a note July 31.
7 MS. VANZON: He said
8 earlier --
9 MR. MAURER: I didn't object
10 to what you think he said or didn't say.
11 Please don't do that.
12 A. I said that billing card looks to
13 me as if that is the way it was done. I am
14 not at all certain that is the way it was
15 done. I don't do my own billing. I would
16 have to ask the person who did the billing
17 how it was done.
18 Q. Who is the person who did the
19 billing for Mrs. Foley for the time period
20 in question as reflected on Plaintiffs'
21 Exhibit No. 1, doctor?
22 A. I would have to look back.
23 Q. Can you look at the document and
24 see if you can tell?
25 A. No, I cannot. There is no
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2 signature or anything by the person who did
3 the billing.
4 Q. Who was doing your billing back
5 in summer/fall 1992?
6 A. I am not certain.
7 Q. Did you have more than one person
8 doing billing at the time?
9 A. No, I had a person that was at
10 the time leaving my employ, and so I am not
11 sure whether she was still involved or
12 whether a new person had come on.
13 Q. Tell me the names of the old
14 person and the new person.
15 A. The old person was Mary Beth
16 Turturro.
17 Q. Was she the one who was leaving?
18 A. Yes.
19 Q. Who was the person who replaced
20 her?
21 A. Mary Jo McLoughlin.
22 (Witness and counsel confer.)
23 Q. Do you know where Mary Beth
24 Turturro resides?
25 A. No.
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2 Q. How about Mary Jo McLoughlin?
3 A. Offhand, I don't know her
4 address.
5 Q. Is she still employed by you?
6 A. Yes. To finish my answer,
7 however, I don't write a note every time I
8 see a patient so that the fact that there
9 may be no note for a certain day does not
10 mean that I didn't see the patient.
11 Q. Was it your standard practice
12 back in the time period in 1992 to see a
13 patient and have no documented record of
14 that visit or consultation?
15 A. Sometimes that --
16 MS. FOURNIER: Objection. He
17 answered the question.
18 MS. VANZON: Objection.
19 Q. Under what circumstance would
20 that happen back in 1992?
21 A. I might see the patient, examine
22 her, speak to the patient, and not write a
23 note.
24 Q. That would be true both in your
25 office as well as in the hospital?
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2 A. More so in the hospital.
3 Q. When was the next record
4 evidencing your seeing Mrs. Foley in the
5 hospital record or in your office chart?
6 A. On the 4th of August, 8/2 and
7 then 8/4.
8 Q. I am sorry. Is it 8/2 or 8/4?
9 A. It is both 8/2 and 8/4.
10 Q. Where does the note begin?
11 A. It begins on the top of the page
12 and that says 8/2.
13 Q. Can you read for the record word
14 for word exactly what you wrote for the 8/2
15 entry?
16 A. GI follow-up. Temp with an arrow
17 down to 99.2 but diarrhea persists. Sed
18 rate markedly elevated at 110. Would
19 consider IBD and then there is a little
20 letter C with a line over it. That is
21 medicalese for with pericholangitis, liver
22 abscess and a little letter e dash and
23 ampersand with infiltrative -- and
24 infiltrative liver disease. CT tomorrow
25 will be helpful but would also strongly
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2 consider sig and colonoscopy.
3 Q. Is that the end of the note?
4 A. It is and it is signed
5 J. Brenner.
6 Q. You included in the note that you
7 have just read into the record that
8 Mrs. Foley sed rate was markedly elevated
9 at 110. At what point does the sed rate
10 become elevated as you understand it?
11 A. When the arythrocytes that are
12 suspended in a tube fall greater than a
13 distance of 20 millimeters in one hour.
14 Q. How does that manifest itself in
15 the sed rate in terms of a number?
16 A. Then the sed rate is said to be
17 elevated because the red cells have fallen
18 more than 20 millimeters which is the
19 cutoff of normal.
20 Q. What is the cutoff of normal
21 numerically when you are looking at a sed
22 rate test result?
23 A. Still 20.
24 Q. 20?
25 A. So that this was not normal.
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2 Q. When a patient has a markedly
3 elevated sed rate are there certain types
4 of conditions that you would routinely
5 consider as a possible explanation for the
6 sed rate being markedly elevated?
7 A. No.
8 Q. Is a markedly elevated sed rate
9 consistent with a patient having a systemic
10 infection?
11 A. Sometimes.
12 Q. Sed is short for what?
13 A. Sedimentation.
14 Q. In order to obtain the sed rate,
15 is there a blood test that has to be
16 performed?
17 A. It is a blood test.
18 Q. Your next chart note was August
19 4th?
20 A. It was.
21 Q. Could you read verbatim what you
22 entered in the chart?
23 A. Yes, I can. 8/4 GI follow-up -
24 feels well but diarrhea persists. No
25 further right upper quadrant, RUQ,
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2 discomfort and CT scan of abdomen shows
3 normal liver and bile ducts. Suggest fib
4 sig and colonoscopy. If LFT's continue to
5 be abnormal -- ABN will then ERCP, and
6 possible -- it is only the letters POSS,
7 possible sphincterotomy would be in order.
8 Sed rate of 110 is disturbing, J. Brenner.
9 Q. You made reference in this chart
10 entry that you have just read into the
11 record to no further right upper quadrant
12 discomfort.
13 When did you become aware of any
14 right upper quadrant discomfort?
15 A. Sometime before that.
16 Q. Is it in the chart?
17 A. Not specifically.
18 Q. What significane, if any, did you
19 place on there being no further right upper
20 quadrant discomfort?
21 A. That she was better.
22 Q. What significance, if any, did
23 you place on the CT of the abdomen and
24 liver and bile ducts being normal?
25 (Witness and counsel confer.)
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2 A. That her liver and bile ducts
3 were normal.
4 Q. Did that cause you to rule out
5 any liver or bile duct disease?
6 A. It caused me to rule out some
7 liver and bile duct diseases.
8 Q. Which ones did you rule out?
9 A. Recurrent stones, liver abscess,
10 cancer of the liver.
11 Q. Is that it?
12 A. That's it.
13 Q. What did your reference to a fib
14 sig have to do with? What does that mean?
15 A. That is short for fiber optic
16 sigmoidoscopy which refers to an
17 examination of the lowest portion of the
18 colon with an instrument called a
19 sigmoidoscope.
20 Q. What are the LFTs that you
21 referred to?
22 A. Liver tests.
23 Q. Are abnormal liver tests
24 something that can be consistent with a
25 Lyme disease condition?
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2 MS. VANZON: Objection.
3 MS. FOURNIER: Note my
4 objection.
5 A. They are not the hallmark of Lyme
6 disease but may be seen with Lyme disease.
7 Q. Is it one word maybe, or two
8 words may be seen? What did you intend?
9 A. Two words.
10 Q. What is ERCP short for?
11 A. Endoscopic retrograde cholangio
12 pancreatography.
13 Q. Which means in laymen's terms?
14 A. It is a procedure where instead
15 of -- shows there is a recurrent stone or a
16 stricture develops in the bile duct which
17 often happens, not infrequently happens
18 after surgery, this is a way to relieve
19 that without doing a formal abdominal
20 operation. What happens is that an
21 endoscope is passed through the mouth
22 through the esophagus and duodenum to where
23 the bile duct opens. A picture is taken of
24 the bile duct, a contrast is injected and
25 if there is a stricture or a stone, a wire
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2 is put in and a cut is made to widen the
3 opening and the stone is then extracted or
4 the narrowing is relieved in that way so
5 that the bile can flow more freely and so
6 on and so forth.
7 Q. Why did you indicate in the note
8 for 8/4/92 that the sed rate of 110 is
9 disturbing?
10 A. A sed rate is like a fever. It
11 is a nonspecific sign of disease. In the
12 same way that a temperature of 105 is
13 disturbing a sed rate of 110 is
14 disturbing. A sed rate like a fever simply
15 suggests that something is going on.
16 Q. Is it possible to analogize for
17 me the equivalent of a fever to a sed rate
18 of 110?
19 MR. IACONIS: Objection to
20 form.
21 MS. FOURNIER: Objection.
22 MS. VANZON: Objection.
23 MR. MAURER: He made the
24 analogy himself comparing the two. That's
25 why I am asking.
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2 MR. IACONIS: Objection.
3 MS. VANZON: Objection.
4 MS. FOURNIER: Objection.
5 A. You cannot really do that. It
6 is --
7 Q. You have answered the question,
8 doctor.
9 MS. FOURNIER: Just answer the
10 question, please.
11 THE WITNESS: Okay.
12 Q. What is the next note in the
13 chart pertaining to any contact you had
14 with Mrs. Foley during this same hospital
15 admission?
16 A. The next note is dated 8/5.
17 Q. Could you please read it word for
18 word out loud?
19 A. Yes. 8/5 GI follow-up, diarrhea
20 continues but otherwise patient feels
21 well. Colonoscopy tomorrow. J. Brenner.
22 Q. What significance, if any, did
23 you place on the continuing diarrhea
24 condition even though Mrs. Foley reported
25 to be feeling better?
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2 A. I felt that whatever process was
3 causing the diarrhea was continuing,
4 although it was not -- she was better.
5 Q. Did you rule out any conditions
6 as a result of her general physical health
7 improving while the diarrhea continued?
8 A. I ruled out recurrent common duct
9 stone. I ruled out liver abscess, that is,
10 I did not think that she had those. There
11 was no sign that she had liver cancer and
12 she seemed to be getting better.
13 Q. Why did you schedule her for a
14 colonoscopy if you felt she was getting
15 better?
16 A. The diarrhea persisted and I was
17 trying to explain it, which I was called to
18 do.
19 Q. What is the next entry in the
20 chart that you made pertaining to contact
21 with Mrs. Foley?
22 A. The next one is 8/6.
23 Q. Would you please read it what you
24 wrote for 8/6/92 out loud?
25 A. 8/2 colonoscopy and polypectomy
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2 note. Patient - PT colonoscoped - note
3 dictated. IMP; benign (F)add polyps of
4 distal DESC colon and rectum normal
5 appearing colon - random biopsies obtained
6 to R/O microscopic colitis, J. Brenner.
7 Q. Where you wrote AD polyps, what
8 does that stand for, the AD?
9 A. It is short for adonomitis.
10 Q. DESC, was that short for
11 descending?
12 A. Correct.
13 Q. Based upon what you found or did
14 not find when you performed the colonoscopy
15 and polypectomy, did you rule out any other
16 conditions?
17 A. Yes.
18 Q. What did you rule out?
19 A. I ruled out colon cancer,
20 inflammatory bowel disease and that's it.
21 Q. What was your impression as to
22 what was the nature of Mrs. Foley's illness
23 as of the time you completed the
24 colonoscopy and polypectomy?
25 A. I thought she had infectious
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2 diarrhea.
3 Q. Did you know what the origin of
4 the infectious process that was causing the
5 diarrhea?
6 A. No.
7 Q. Is there anything that you did up
8 until and including the time of the
9 colonoscopy and polypectomy that you have
10 not told us about as a result of reading
11 your chart entries with regard to your
12 evaluation and treatment of Mrs. Foley
13 during her hospitalization in July and
14 August 1992?
15 A. Yes.
16 Q. What could you tell me in that
17 regard?
18 A. On July 30 I changed some of her
19 IV orders and --
20 Q. How did you change it, from what
21 to what?
22 A. I changed -- I asked that she be
23 given 5 percent dextrose normal saline, one
24 liter every eight hours for two liters and
25 then five dextrose and half normal saline a
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2 liter every eight hours. Thereafter I
3 added some ampicillin 1.5 grams every six
4 hours and gentamycin 80 milligrams IV every
5 eight hours. I asked that a potassium
6 level be done on the blood that had been
7 drawn earlier that day.
8 Q. You said that you added
9 ampicillin?
10 A. Yes.
11 Q. In what quantity?
12 A. 1.5 grams IV every six hours.
13 Q. Why did you put Mrs. Foley on
14 ampicillin l.5 grams IV every six hours?
15 A. Because I thought she had
16 infectious diarrhea. I was not certain
17 what the organism was and I wanted to give
18 her broad spectrum coverage.
19 Q. Is ampicillin part of the
20 penicillin family?
21 A. It is.
22 Q. Is penicillin an antibiotic, to
23 your knowledge, that is considered
24 effective in treating Lyme disease?
25 MR. IACONIS: Objection to
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2 form.
3 MS. VANZON: Objection.
4 MS. FOURNIER: Objection. If
5 you know.
6 MR. IACONIS: Did the doctor
7 prescribe penicillin here?
8 MR. MAURER: He said
9 ampicillin.
10 MS. FOURNIER: Do you know?
11 A. I do. It is not a front line
12 drug, I don't think.
13 Q. Do you know if it can have any
14 positive impact on a Lyme disease
15 condition?
16 A. It depends --
17 MR. IACONIS: Objection to
18 form.
19 MS. VANZON: Objection.
20 MS. FOURNIER: Note my
21 objection.
22 A. It depends in what quantity and
23 how long it is given.
24 Q. When antibiotics are given by IV,
25 does it give the antibiotic a little bit
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2 more of a wallop in terms of its ability to
3 have a positive effect on a patient?
4 MS. FOURNIER: Objection to
5 form.
6 MS. VANZON: Objection.
7 MR. IACONIS: Objection.
8 A. Sometimes.
9 Q. What did you prescribe gentamycin
10 for?
11 A. This is part of the treatment of
12 a patient with a fever or possible
13 infection of unknown origin to cover
14 certain types of bacteria that may be
15 present.
16 Q. Is it an antibiotic?
17 A. It is.
18 Q. Doctor, do you know, and please
19 do not guess, do you know if the amount of
20 ampicillin you prescribed by IV for
21 Mrs. Foley as of July 30, 1992 was of
22 sufficient quantity to have a positive
23 impact on a person's Lyme disease
24 condition?
25 MS. FOURNIER: Note my
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2 objection.
3 MS. VANZON: Objection.
4 MR. IACONIS: Objection.
5 A. I don't.
6 Q. I believe you may have stated
7 that Mrs. Foley was on Cipro at some point
8 during your deposition.
9 A. Did I say that? I don't think
10 so.
11 Q. I might be mistaken.
12 MS. FOURNIER: Off the record.
13 (Discussion off the record.)
14 BY MR. MAURER:
15 Q. What is Cipro short for?
16 A. Ciprofloxacin.
17 Q. What type of medication
18 Ciprofloxacin?
19 A. It is an antibiotic.
20 Q. Do you know, and please do not
21 guess if you do not know, whether or not
22 treating a patient with Ciprofloxacin in
23 the amount that was given to Mrs. Foley
24 could have a positive impact on a person
25 who is suffering from Lyme disease? And if
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2 you need to, then please look at the chart
3 to see how much she received?
4 MR. IACONIS: Objection.
5 MS. VANZON: Objection.
6 MS. FOURNIER: Note my
7 objection. If you don't know, then don't
8 guess?
9 A. I don't.
10 (Witness and counsel confer.)
11 MR. MAURER: This would be a
12 good point to break for lunch.
13 (Luncheon recess taken at this
14 time.)
15 BY MR. MAURER:
16 Q. Part of the record that was
17 provided by your attorney includes an
18 endoscopy/minor surgery record. Is that
19 part of the hospital chart for the July 30,
20 1992 admission of Mrs. Foley?
21 A. Yes, it is.
22 Q. Would I be correct that as a
23 result of that procedure and the pathology
24 workup that was performed on the speciments
25 that were obtained during the procedure a
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2 determination was made that Mrs. Foley had
3 a few polyps?
4 A. Yes.
5 Q. At the time that you became aware
6 of the polyps did you think the polyps were
7 playing any part in Mrs. Foley's diarrhea
8 condition in terms of causation?
9 A. No, I did not.
10 Q. But while you were there you
11 removed them?
12 A. Yes, I did.
13 Q. Did the endoscopy procedure -- I
14 am sorry, the colonoscopy and polypectomy
15 procedure provide you with any information
16 which enabled you to determine the nature
17 of the infectious process that was causing
18 Mrs. Foley's diarrhea?
19 A. It only gave negative
20 information, that is, I could say some of
21 the things that it was not.
22 Q. Did the biopsy that was performed
23 rule out microscopic colitis?
24 A. Yes.
25 Q. Incidentally, the endoscopy
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2 record indicates on a line that says
3 allergies ampicillin, penicillin, do you
4 know why that is indicated on the allergies
5 line?
6 A. I really don't. I didn't write
7 that. I don't know why that is indicated.
8 Q. Do you know if Mrs. Foley was
9 allergic to ampicillin or penicillin?
10 A. Not at the time I prescribed it
11 for her.
12 Q. No, she was not?
13 A. I don't remember specifically but
14 I don't have any recollection that she was
15 allergic to penicillin or ampicillin.
16 Q. You don't think that this
17 particular note of ampicillin and
18 penicillin applied to Mrs. Foley?
19 MR. IACONIS: Objection to
20 form.
21 A. I have my theory as to why. I
22 cannot explain that note. It is not my
23 note and I don't know why it is there.
24 Q. Are there any more notes in this
25 hospital admission record that you are
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2 looking at evidencing any additional work
3 that you did to evaluate and treat
4 Mrs. Foley in the hospital?
5 A. There are no other progress
6 notes.
7 Q. Are there any notes reflecting
8 any orders of anything that you prescribed
9 or anything you wanted done?
10 A. Yes, there are.
11 Q. Could you identify what you have
12 found that is responsive to my last
13 question?
14 A. There are orders on the 5th of
15 August.
16 Q. For what?
17 A. For a preparation for
18 colonoscopy.
19 Q. Anything else on August 5th?
20 A. No.
21 Q. What other orders are reflected
22 in the chart?
23 A. Then there are orders on the
24 6th -- I'm sorry. Yes, the
25 post-colonoscopy orders on the 6th for
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2 things to be done with the patient after
3 her procedure.
4 Q. Could you read them into the
5 record, please?
6 A. Yes, 8/6 at 2:15 p.m.
7 post-colonoscopy note remove rectal tube at
8 3:30 p.m.. Patient may eat when alert.
9 D/C IV when patient is alert and eating.
10 All stool to be checked by nurse and if one
11 quarter cup of blood or more call MD.
12 Signed J. Brenner.
13 Q. What IV was to be discontinued
14 when patient was alert and eating?
15 A. The one that she had running
16 prior to that.
17 Q. That includes the ampicillin?
18 A. Not necessarily.
19 Q. How long was Mrs. Foley receiving
20 ampicillin IV?
21 A. She received it, I believe, but I
22 am not certain, starting July 30 and it was
23 discontinued by 8/2/92.
24 Q. By whom?
25 A. By Dr. Michael Daniels.
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2 Q. You are reading from the
3 physician's orders portion of the hospital
4 records?
5 A. That is correct, I am.
6 Q. Could you tell me from the chart
7 for how long a period of time Mrs. Foley
8 was given gentamycin?
9 A. It was started on 7/30 and
10 discontinued briefly on 8/1.
11 Q. By whom?
12 A. By Dr. Weiss, David Weiss.
13 Q. Who is Dr. David Weiss?
14 A. A covering doctor. 8/2 by Dr.
15 Michael Daniels is when it was resumed.
16 Q. Was it discontinued prior to her
17 discharge from the hospital?
18 A. Yes, it was.
19 Q. Do you know when?
20 A. Yes. It was discontinued on
21 8/4. We are talking about the gentamycin
22 now, right, counsel?
23 Q. Yes.
24 A. 8/4 by Michael Daniels.
25 Q. Doctor, what else did you do as
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2 reflected in the orders, the physician
3 orders records in the record in the
4 hospital record?
5 A. I ordered a battery of additional
6 tests.
7 Q. When?
8 A. On August 6th.
9 Q. Why did you order a battery of
10 additional tests as of August 6th?
11 A. Because I didn't think that we
12 had found the answer and we had gone
13 through all the most likely things and the
14 moderately likely thing and the less likely
15 things and we were now left with sort of
16 way out things.
17 Q. Like Lyme disease?
18 MR. IACONIS: Objection to
19 form.
20 MS. VANZON: Objection.
21 MS. FOURNIER: Objection. Can
22 you answer that?
23 A. I ordered a number of tests, not
24 just the Lyme disease test.
25 Q. You ordered a Lyme disease test
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2 as part of that battery of additional
3 tests?
4 A. Yes.
5 Q. Tell me the specific tests that
6 you ordered and then I will follow up
7 without interruption.
8 A. Test or tests?
9 Q. You said that you ordered a
10 battery of tests. What did that consist
11 of?
12 A. An anti-nuclear antibody titre, a
13 serum protein electrophoresis and a Lyme
14 titre.
15 Q. Why did you order an anti-nuclear
16 antibody titre?
17 A. Because anti-nuclear antibody is
18 a test that is positive in diseases called
19 collagen diseases, and sometimes collagen
20 diseases can be associated with abdominal
21 pain, diarrhea, diarrhea, abnormal liver
22 tests, fever and so on. Similarly serum
23 protein electrophoresis is a test where the
24 proteins in the blood are examined and
25 sometimes allow you to diagnose rare
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2 problems which can be associated with a lot
3 of vague symptoms and so on. The test I
4 was requesting was multiple myeloma, for
5 example.
6 Q. Which is a form of cancer?
7 A. It is a malignancy.
8 Q. Why did you order the Lyme titre?
9 A. It is very difficult to explain.
10 There was not really anything at all here
11 and I was reaching and I just included
12 this. In the same way that there was not
13 anything really specific to suggest
14 multiple myeloma and yet I ordered the test
15 because we were down to more unlikely
16 causes and this is what I ordered.
17 Q. Let's go back a moment. At the
18 start of the deposition I asked you to tell
19 me what factors you normally consider
20 generally when deciding what tests are to
21 be performed and at that time you told me
22 that you obtained a history, perform a
23 physical and then you order tests that
24 would be the most likely to give you a
25 diagnosis. Then you told me later on in
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2 today's deposition that you start out with
3 the most likely and work your way down to
4 the least likely. What I would like to
5 know now is by 8/6/92 when you ordered the
6 ANA titre, and the tests you mentioned had
7 you now reached the least likely
8 explanation for Mrs. Foley's infectious
9 diarrhea having ruled out the other things
10 that you have told me about?
11 A. Could you give me the question
12 part of that statement. What is the
13 question essentially? I am having a hard
14 time. Can you read that back to me.
15 (The record was read as
16 requested.)
17 A. The diarrhea was -- the cause of
18 the diarrhea -- the working diagnosis as
19 infectious diarrhea. It had not been
20 proven that is what she had. That was a
21 working diagnosis. We had not isolated any
22 organism and therefore one could not say
23 that this was definitely it. Yes, we had
24 reached the point of looking -- I had
25 reached the point of looking at the less
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2 likely things.
3 Q. When you decided to order the
4 Lyme titre in that battery of additional
5 tests, did the fact that Mrs. Foley lives
6 in an area that is endemic to deer ticks
7 that carry the Lyme bacteria play any part
8 in your considerations?
9 A. I don't remember thinking of that
10 particularly, no.
11 Q. Did you know that Mrs. Foley
12 lived in an area that was endemic for deer
13 ticks that carry the Lyme disease bacteria
14 as of the time you were seeing her in the
15 hospital in July and August of 1992?
16 A. I don't remember what the state
17 of my knowledge was or how I looked at
18 this. This was four years ago, counsel.
19 You are asking me to remember my state of
20 mind. I don't know. I don't remember
21 that.
22 Q. What were the results of the ANA
23 titre that you ordered?
24 A. It was negative.
25 Q. What were the results of the
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2 serum protein electrophoresis that you
3 ordered?
4 A. It did not show any treatable
5 illness.
6 Q. So that it was a negative test?
7 A. Yes.
8 Q. What were the results of the Lyme
9 titre that you ordered?
10 A. It was positive.
11 Q. Would you be kind enough to find
12 the Lyme titre report in the hospital
13 record, doctor.
14 A. Yes, I found it.
15 Q. The report indicates date in the
16 upper left-hand corner of 8/7/92. Is that
17 the date that the blood sample was drawn,
18 as far as you know?
19 A. As far as I assume it is. I am
20 not certain of that but I assume that is
21 what it means, yes.
22 Q. On the upper right-hand corner
23 date done and it is written in 8/10/92,
24 does that indicate the date the test
25 results were available and the report was
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2 prepared, as far as you know?
3 MR. IACONIS: I will object to
4 the form of the question.
5 MS. FOURNIER: Note my
6 objection as well.
7 A. Not necessarily.
8 Q. What --
9 MS. VANZON: Objection.
10 Q. What does 8/10/92 mean to you?
11 A. The date that the test was done.
12 I am not certain.
13 MR. IACONIS: Don't guess,
14 doctor.
15 MS. FOURNIER: Don't guess.
16 A. My best answer is that I don't
17 know what the 8/10 means.
18 Q. When you were treating Mrs. Foley
19 at Northern Westchester Hospital Center you
20 had hospital privileges there; is that
21 correct?
22 A. Yes.
23 Q. How long have you had hospital
24 privileges at the hospital?
25 A. 23 years.
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2 Q. During that 23-year period have
3 you become familiar with the hospital
4 laboratory test report format that is used
5 at the hospital?
6 MS. FOURNIER: Note my
7 objection. He said he didn't know. If he
8 doesn't know, then he doesn't know.
9 Q. You can answer.
10 A. I don't know what this number
11 means, counsel.
12 Q. That's not what I asked. Please
13 just answer the questions that I asked you
14 and we will get done quicker.
15 MR. IACONIS: I will object to
16 the form of the question.
17 MS. VANZON: Objection.
18 MS. FOURNIER: Objection. He
19 answered this.
20 MR. MAURER: He did not answer
21 what I asked.
22 Q. During the time that you had
23 privileges at the hospital have you known
24 the hospital laboratory to use standard
25 form reports for reporting on the kinds of
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2 tests that you order there?
3 MS. FOURNIER: Do you know?
4 A. I really don't know exactly.
5 MS. FOURNIER: Okay. That's
6 your answer.
7 Q. What do you mean by your answer?
8 A. I mean, I don't know exactly what
9 a standard report format is or whether
10 indeed there is a standard report format.
11 Q. In your experience as a physician
12 with privileges at this hospital, Northern
13 Westchester Hospital Center, do you have
14 any understanding of what it means where
15 they indicate date done in the form of the
16 report?
17 MS. FOURNIER: Asked and
18 answered.
19 MR. MAURER: I am not asking
20 about this particular report on the Lyme
21 disease. I am saying generally.
22 A. You would have to show me the
23 specific thing that you are talking about
24 for me to give you an answer.
25 Q. When was Mrs. Foley discharged
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2 from the hospital --
3 A. Here we go. On the 8th of
4 August.
5 Q. When do the hospital records
6 indicate that the Lyme disease test report
7 was completed?
8 MR. IACONIS: I will object.
9 MS. FOURNIER: Note my
10 objection as well. It says date done
11 8/10. The doctor testified that he doesn't
12 know what that means.
13 MR. MAURER: There may be
14 something else in the report aside from
15 this one page that we are looking at which
16 I have no knowledge of so I am entitled to
17 ask him.
18 A. There is nothing on this piece of
19 paper that tells me when this test was
20 reported.
21 MR. IACONIS: I move to strike
22 the nonresponsive portions of the answer to
23 the question.
24 MS. VANZON: I join.
25 A. You asked --
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2 Q. I said, according to the hospital
3 chart so that if there is anything else
4 that you might look at which might serve as
5 a basis for a response to the question I
6 ask you to look at the chart and anything
7 else that you think might help.
8 MR. IACONIS: I will object to
9 the form of the question.
10 A. I do not see it. You know, I
11 don't see it: I don't see that but --
12 MS. FOURNIER: That's it.
13 That's your answer. That's it.
14 Q. Are there any other parts of the
15 hospital chart that you might find the test
16 results reported in besides the document
17 that is before you that indicates a Lyme
18 titre of 1.11 and that is considered
19 positive?
20 MR. IACONIS: Objection to
21 form.
22 MS. FOURNIER: He already said
23 no.
24 A. I might find it.
25 MS. FOURNIER: Doctor, do you
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2 see it anyplace else?
3 THE WITNESS: No.
4 MS. FOURNIER: That is the
5 answer. Don't do anything but answer his
6 questions as best you can.
7 A. No.
8 Q. Doctor, as of the time of your
9 ordering the Lyme titre on 8/6/92 for
10 Mrs. Foley, to your knowledge, did the
11 Northern Westchester Hospital Center have
12 any procedures with regard to how positive
13 Lyme titre results were to be reported to
14 either the doctor or the patient?
15 MR. IACONIS: I will object to
16 the form of the question.
17 A. I don't know that.
18 Q. Let me show you a document
19 entitled Criteria of Notification of
20 Results marked as Plaintiff's Exhibit No. 3
21 on 12/6/95. Will you look at that
22 document, please, doctor.
23 A. Sure.
24 Q. Have you ever seen that before?
25 A. I have not.
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2 Q. I will show you a two-page
3 document entitled Guidelines for Telephone
4 Reporting of Laboratory Results marked for
5 identification as Plaintiffs' Exhibit No. 4
6 on 12/6/95.
7 Will you look at that, please,
8 doctor?
9 A. Sure.
10 (Witness and counsel confer.)
11 A. I have never seen this, no.
12 Q. You looked at both pages, doctor?
13 A. I have never seen this.
14 Q. Okay. Thank you.
15 Doctor, prior to 12/10/92 did
16 you, including your office staff, ever
17 receive any telephone calls from any
18 representative of the Northern Westchester
19 Hospital Center reporting on the results of
20 either a BHCG titre, a positive Lyme titre,
21 a positive heterophile antibody test or a
22 bacterial agglutination test.
23 MR. IACONIS: Regarding
24 Mrs. Foley?
25 Q. Regarding any patients that you
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2 were involved in the evaluation and
3 treatment of.
4 MR. IACONIS: Objection. How
5 is that relevant to this case?
6 MS. FOURNIER: Objection.
7 MS. VANZON: Objection.
8 MR. IACONIS: Any patients?
9 MR. MAURER: Any patient she
10 has been involved with.
11 MS. FOURNIER: Can you answer
12 that?
13 A. I don't remember. I --
14 MS. FOURNIER: Just answer the
15 question. That's the answer.
16 Q. Did you or your staff ever
17 receive any telephone calls from any
18 representative of the Northern Westchester
19 Hospital Center before August 10, 1992 with
20 respect to the results of any testing that
21 you did pursuant to your order on a patient
22 that you were evaluating and treating?
23 MS. FOURNIER: Note my
24 objection.
25 MS. VANZON: Objection.
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2 A. I don't remember.
3 Q. If a telephone call was received
4 from the Northern Westchester Hospital
5 Center regarding one of your patients who
6 had the information received on the
7 telephone be entered in the patient's chart
8 as a normal part of your medical practice?
9 MR. IACONIS: I will object to
10 the form of the question.
11 MR. MAURER: Doctor's records
12 that it would be maintained for that
13 patient.
14 MR. IACONIS: That is not
15 clear, counsel. My objection is, the
16 doctor going to write a telephone call from
17 the hospital to his office in the hospital
18 chart, or is the doctor going to right in
19 his office records notations of the call
20 from the hospital to his office.
21 MS. FOURNIER: Note my
22 objection. Can you rephrase that.
23 MR. IACONIS: The question is
24 unclear to me.
25 Q. I am asking you on those
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2 situations where a patient is not in the
3 hospital and the telephone call is
4 received.
5 MS. FOURNIER: If there is a
6 telephone call, because we have not
7 established that.
8 MR. MAURER: I understand
9 that. I am asking generically and I want
10 to understand what his practice is.
11 Q. I will start again, doctor.
12 If you are treating and
13 evaluating a patient who was in Northern
14 Westchester Hospital Center, and you had
15 tests performed on the patient, and the
16 patient is discharged, and then if a
17 telephone call were to be received from the
18 hospital from one of its representatives
19 informing you or your staff what the
20 results of any of the tests were, what was
21 your practice prior to 8/10/92 with regard
22 to whether or not the information provided
23 on the test results would be noted in the
24 patient's chart kept in your office?
25 MR. IACONIS: Objection.
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2 A. That's a long time ago and it
3 would depend on what the information was,
4 where I was in the chain -- in the group --
5 whether I was the sole physician caring for
6 the patient, whether there were other
7 doctors involved with that patient. The
8 question is hypothetical that you are
9 asking me. I cannot really -- if you want
10 to give me a concrete question then I can
11 answer it. Hypothetical questions I can
12 only give hypothetical answers to those
13 questions.
14 Q. I want to know what your practice
15 was for those patients where you have the
16 responsibility based upon your ordering the
17 tests and not any other doctors, what your
18 practice would have been.
19 A. What you said presumes that --
20 MS. FOURNIER: Note my
21 objection?
22 A. What you said presumes that --
23 MS. FOURNIER: Hold it.
24 Q. When you order a test to be
25 performed on a patient in the hospital, do
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2 you consider yourself to be responsible
3 with regard to conveying the results of
4 that test to the patient?
5 MS. VANZON: Objection.
6 MS. FOURNIER: Note my
7 objection. You can answer the question.
8 A. I function as a consultant. The
9 fact that I order a test does not mean that
10 I can then usurp the position of the
11 primary physician caring for that patient.
12 The same way that if you have a GI series
13 done at the hospital, the radiologist
14 performing that GI series does not
15 communicate the results of that x-ray to
16 you. In that same manner I don't
17 necessarily communicate the results of
18 tests to patients, rather, what happens is,
19 that the discussion is held with the doctor
20 who has a longstanding relationship with
21 that patient who knows that patient and
22 that doctor then decides what to do with
23 that test.
24 Q. Is that your standard operating
25 procedure that was in effect in 1992?
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2 A. Well, I don't remember then, but
3 it is now.
4 Q. Has your practice changed in any
5 manner since 1992 with regard to this
6 subject?
7 A. That is my practice. That is the
8 way I do things.
9 Q. Has it changed at all since 1992
10 or is it the same practice?
11 MS. VANZON: Objection.
12 A. It is the same.
13 Q. Doctor, would I be correct that
14 you did consult with Mr. and Mrs. Foley by
15 having conversations with them while
16 Mrs. Foley was in the hospital during July
17 and August 1992?
18 A. I spoke to them while she was in
19 the hospital, yes.
20 Q. Did you discuss with them the
21 fact that you were trying to figure out
22 what was causing her diarrhea condition?
23 A. Yes.
24 Q. Doctor, at any time after
25 Mrs. Foley was discharged from the hospital
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2 on 8/8/92 did you ever receive notification
3 from Northern Westchester Hospital Center
4 or any of its representatives with respect
5 to the results of the Lyme titre you
6 ordered on 8/6/92?
7 A. Yes, I did.
8 Q. When?
9 A. I am not certain because I was
10 away on vacation when the result of the
11 test was placed in my mailbox at the
12 hospital and placed on the chart.
13 Q. When did you receive the report,
14 the document itself, for the first time?
15 A. When I returned from --
16 MR. IACONIS: I will object to
17 the form of the question.
18 Q. When did you receive the Lyme
19 titre test report for the first time?
20 MS. FOURNIER: He answered the
21 question.
22 MR. IACONIS: That's not my
23 reason for objecting. I am objecting to
24 the word "receive."
25 Q. When did you see the Lyme disease
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2 test report for the first time that you
3 ordered on 8/6/92?
4 A. On or about 8/17.
5 Q. What were the circumstances of
6 your seeing the test report at that time?
7 Where were you and so forth?
8 A. I don't remember exactly where I
9 was. I looked through the material that
10 had arrived for me while I was away and one
11 of the materials was the positive Lyme
12 titre.
13 Q. Did you speak with any of your
14 employees in your office to find out if the
15 Lyme test result was telephoned to your
16 office during your vacation?
17 A. I don't remember.
18 Q. Do your records that you have
19 produced here today indicate that such a
20 telephone call was ever received?
21 A. No.
22 Q. When you saw the test report, was
23 it likely in your mailbox at the hospital
24 for the first time?
25 A. I really don't remember,
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2 honestly.
3 Q. After you saw the positive Lyme
4 disease titre report on or about 8/17/92
5 what, if anything, did you do with that
6 information?
7 A. I spoke to Mrs. Foley's
8 physicians, and although I don't remember
9 the exact gist of the conversation, the
10 fact that a positive test had come back was
11 discussed, and the question of what to do
12 with it was discussed.
13 Q. When you say Mrs. Foley's
14 physicians, please be specific?
15 A. Drs. Klein and Daniels.
16 Q. You spoke to both of those
17 doctors?
18 A. Again, it is four years ago. I
19 think that it is likely that I did. I seem
20 to remember that I did. I think that I
21 spoke to both of them.
22 Q. Do you recall to whom you spoke
23 first or did you speak to them at the same
24 time?
25 A. I do not. I don't remember.
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2 Q. When you discussed what to do
3 about the positive Lyme disease titre with
4 Drs. Daniels and Klein, did you discuss who
5 was going to tell Mrs. Foley about the
6 positive Lyme disease test, if anyone?
7 A. I don't remember discussing that
8 specifically, but the way this is done in
9 my practice is that the patient's
10 physician -- only had contact with
11 Mrs. Foley twice, whereas her primary care
12 physicians taking care of, the internist
13 taking care of her had a relationship of
14 years with her. There was no question as
15 to who was going to handle this problem.
16 It was not a gastroenterology consultancy.
17 MS. VANZON: I move to strike
18 the nonresponsive portions of the answer.
19 Q. At the time that you discussed
20 the positive Lyme disease titre report with
21 Doctors Daniels and Klein did you believe
22 Mrs. Foley should be informed of the
23 positive test result?
24 MR. IACONIS: Objection to
25 form.
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2 MS. VANZON: Objection.
3 MS. FOURNIER: Note my
4 objection.
5 MR. MAURER: It is a factual
6 question.
7 Q. You can answer, doctor.
8 A. I assumed that her doctors would
9 inform her.
10 MR. MAURER: I move to strike,
11 nonresponsive.
12 Q. I asked if you believe that she
13 should be told of the positive Lyme titre
14 result.
15 MR. IACONIS: Objection to
16 form.
17 (Witness and counsel conver.)
18 MR. MAURER: I object
19 strenuously to the consultation at this
20 time between the witness and counsel.
21 A. Certainly, I mean I --
22 Q. You have answered, doctor.
23 Q. Did Dr. Klein or Dr. Daniels
24 indicate to you whether or not they were
25 going to tell Mrs. Foley that the Lyme
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2 titre was positive?
3 A. Although I don't remember it
4 specifically, I believe they did and they
5 also pointed out to me that she had Lyme
6 disease previously and there was a question
7 of whether this was a valid test.
8 Q. Did you think Mrs. Foley should
9 be told about the positive Lyme titre even
10 though they told you that they had a
11 question as to whether or not this positive
12 test was a valid result?
13 MS. VANZON: Objection.
14 MS. FOURNIER: Objection to
15 form. He testified that he thought that
16 she should be informed. He added something
17 that was really nonresponsive to your
18 question.
19 MR. MAURER: I want to make
20 sure that I don't hear at the time of trial
21 that there is something else because he
22 told me what the other doctors thought
23 after he answered the question.
24 MS. FOURNIER: Was that an
25 added thought that you put in there? Does
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2 that have anything to do with it?
3 THE WITNESS: Was what an
4 added thought?
5 MR. MAURER: Why don't you let
6 him just answer the question.
7 Q. Based upon Dr. Klein or Dr.
8 Daniels or both of them telling you that
9 Mrs. Foley may have had a positive test for
10 Lyme disease in the past and there was a
11 question in their mind as to whether or not
12 the 8/6/92 Lyme titre coming back was valid
13 did that change your mind whether or not
14 Mrs. Foley should be told that the Lyme
15 titre was positive?
16 A. I felt that she should be told.
17 MR. MAURER: Off the record.
18 (Discussion off the record.)
19 BY MR. MAURER:
20 Q. Did you discuss with either
21 Dr. Klein or Dr. Daniels whether or not a
22 repeat Lyme titre should be performed when
23 you spoke to them about the positive Lyme
24 titre?
25 A. I don't remember.
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2 Q. Did you know that the hospital's
3 laboratory report for Mrs. Foley's Lyme
4 titre test indicated that if there was an
5 equivocal Lyme titre result that the test
6 should be repeated when you spoke with
7 Dr. Klein and Dr. Daniels about the test
8 result?
9 MS. VANZON: I object because
10 I really don't know what was asked. It may
11 have been a fine question but I am just
12 covering myself.
13 A. It is a --
14 (Witness and counsel confer.)
15 MR. IACONIS: I will object to
16 the form of the question.
17 MS. FOURNIER: Can you answer
18 the question?
19 A. If a test is equivocal, I knew
20 that equivocal tests should be repeated or
21 if a test is report is equivocal that it
22 should be repeated.
23 Q. The Lyme tire test result for
24 Mrs. Foley was not equivocal as reported
25 but it was positive; is that correct?
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2 A. That is correct. That is
3 correct.
4 MR. IACONIS: I will object to
5 the form of the question. Please give us a
6 chance to object before you answer.
7 THE WITNESS: Sorry.
8 Q. Did you ever report the positive
9 Lyme titre to Mrs. Foley prior to September
10 1992?
11 A. I don't believe so. No.
12 Q. Did any employee or agent of
13 yours ever report the positive Lyme titre
14 to Mrs. Foley before September 1992?
15 MR. IACONIS: I object to
16 form.
17 MS. VANZON: I join.
18 Q. In other words, anyone that
19 worked for you?
20 A. I don't remember specifically
21 whether that happened or not. It is just
22 too long ago.
23 Q. If the positive Lyme titre were
24 reported by your office to Mrs. Foley,
25 would that have been indicated in the
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2 records that you maintained for Mrs. Foley?
3 A. Not necessarily.
4 Q. As a result of your discussing
5 with Dr. Klein and Dr. Daniels about the
6 positive Lyme titre, did you at that point
7 believe that reporting the positive Lyme
8 titre was their responsibility as opposed
9 to yours?
10 MR. IACONIS: Objection.
11 MS. VANZON: Objection.
12 MS. FOURNIER: Note my
13 objection.
14 MR. IACONIS: Asked and
15 answered, counsel.
16 MR. MAURER: No, I didn't ask
17 it.
18 MR. IACONIS: Hold on.
19 Off the the record.
20 (Discussion off the record.)
21 A. This is not a question of
22 responsibility. It is a question of the
23 way things are done. Again, if you come
24 and have a test and I am your radiologist,
25 I will not tell you what your GI series
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2 showed because you have a primary care
3 physician that has a relationship with
4 you. Those tests are reported to that
5 physician and that physician then handles
6 it. Consultants do not interpose
7 themselves between a physician, a primary
8 care physician, and his or her patient; so
9 that it is not a question of a judging
10 responsibility but it is the way that
11 things are done. You come in and have a
12 CAT scan and the CAT scanner does not give
13 you your result. He is not in a position
14 to do that because you have a doctor and
15 that doctor will handle it. The results
16 are reported to your doctor and the doctor
17 is -- your doctor interprets and acts on
18 them.
19 Q. Doctor, your response indicates
20 to me, and I may be wrong, so please
21 correct me if I am wrong, that doctors who
22 perform tests are different from doctors
23 who order tests; is that a fair statement?
24 MS. FOURNIER: Note my
25 objection. I direct the witness not to
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2 answer this.
3 ** COUNSEL DIRECTS WITNESS NOT TO ANSWER
4 BY MR. MAURER:
5 Q. Did you consider your
6 responsibility as an ordering consulting
7 doctor different from the responsibility of
8 a doctor who just performs the test but did
9 not order the test back in August of 1992?
10 MS. FOURNIER: Don't answer
11 the question.
12 MR. MAURER: Why?
13 MS. FOURNIER: It is not
14 relevant.
15 MR. MAURER: What do you mean
16 it is not relevant?
17 MS. FOURNIER: It is not
18 relevant.
19 MR. MAURER: It certainly is
20 relevant.
21 MS. FOURNIER: What, performed
22 the Lyme titre, what are you talking about?
23 MR. MAURER: He is saying that
24 an x-ray technician --
25 MS. FOURNIER: He is giving
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2 you an analogy about a consultant. I will
3 not let him answer the question.
4 MR. MAURER: You will not let
5 him explain?
6 MS. FOURNIER: No.
7 MR. MAURER: That's improper.
8 You should let him answer it because he is
9 the one who made the analogy and not me. I
10 didn't do it.
11 MS. FOURNIER: It has nothing
12 to do with the case. Mark it for a ruling
13 if you have a problem with it. I will not
14 allow him to answer it.
15 ** COUNSEL DIRECTS WITNESS NOT TO ANSWER
16 BY MR. MAURER:
17 Q. In August of 1992 did you think
18 your role as a consulting physician in the
19 case of Mrs. Foley who ordered the Lyme
20 titre did not require you to report the
21 test result directly to Mrs. Foley since
22 you were not her "primary treating
23 physician"?
24 MS. FOURNIER: Note my
25 objection to form of the question. Don't
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2 answer it. Rephrase the question.
3 MR. MAURER: What is wrong
4 with it? I am using his own language.
5 Q. Did you understand that question?
6 MS. FOURNIER: I don't believe
7 that it was his own language.
8 MR. MAURER: I am trying to
9 use his own language.
10 MS. FOURNIER: Rephrase the
11 question.
12 MR. MAURER: What is wrong
13 with it?
14 MS. FOURNIER: I don't like
15 it.
16 MR. MAURER: Not liking the
17 question is not a basis for directing him
18 not to answer it.
19 MS. FOURNIER: The way it is
20 worded is not his testimony. I hope that
21 you can reframe the question so that he can
22 answer the question.
23 Q. Doctor, are you able and don't
24 answer the question I asked you before but
25 did you understand the question I asked?
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2 MS. FOURNIER: I told him not
3 to answer the question.
4 MR. MAURER: I want to know if
5 he understands it. I have a right to know
6 that.
7 MS. FOURNIER: It is not
8 proper form. I will not let him answer the
9 question.
10 MR. MAURER: I disagree with
11 you. I want to know whether he understood
12 the question.
13 MS. FOURNIER: It is not a
14 matter of understanding, the language is
15 improper.
16 MR. MAURER: I am using the
17 language the doctor used. You ask the
18 question the the way you think it should be
19 phrased.
20 MS. FOURNIER: I will not ask
21 your questions for you. You can mark it
22 for a ruling.
23 MR. MAURER: All right. Mark
24 it for a ruling.
25 ** THIS QUESTION MARKED FOR COURT RULINGS:
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2 --------------------------------------
3 BY MR. MAURER:
4 Q. I will ask you a general
5 question, doctor.
6 Do you generally ever report test
7 results directly to the patients when you
8 are involved as a consulting physician?
9 MR. IACONIS: Does he
10 generally ever? I will object to the form
11 of the question.
12 MS. FOURNIER: Can you ask him
13 what his general practice is as a
14 consultant.
15 Q. What is your general practice as
16 a consultant with regard to reporting test
17 results to patients?
18 A. Usually I try to go through the
19 referring physician, the primary care
20 person.
21 Q. Under what circumstances would
22 you not since you said usually you try?
23 A. If for example, I were to
24 colonoscope a patient and -- really I am
25 trying to think of something --
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2 MS. FOURNIER: Don't think.
3 Is it your general practice? Yes or no.
4 THE WITNESS: No, my general
5 procedure is to go through the referring
6 physician.
7 Q. Do you have a general practice
8 with regard to what you do if positive test
9 results are received by your office when
10 you are out of town or unavailable because
11 of being on vacation?
12 A. I have people who cover me.
13 Q. Doctors?
14 A. Yes, and all urgent calls are
15 referred to those covering doctors.
16 Q. Would a positive Lyme titre
17 result received by telephone call be
18 considered by you as your general practice,
19 to be an urgent call in August of 1992?
20 MS. VANZON: Objection as to
21 form.
22 A. First, I don't remember that I
23 was -- that I received any such calls or
24 that we were receiving calls. Generally,
25 if there was something urgent, then a
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2 referring physician would be notified. If
3 it was material left in a box, that box
4 would be emptied at the time I got back.
5 Q. If you know, when a consulting --
6 A. One other thing. Can I finish my
7 statement.
8 Q. If it is responsive to the
9 previous question by all means.
10 A. Mostly since there are referring
11 physicians I am not the person primarily
12 taking care of these patients; so that the
13 instances where a patient is left uncovered
14 is extraordinarily uncommon because most of
15 my practice is a referral practice. Those
16 physicians are still in place even when I
17 am away.
18 MS. FOURNIER: Can we take a
19 break.
20 (Recess taken.)
21 BY MR. MAURER:
22 Q. If you know, doctor, was it the
23 practice of Northern Westchester Hospital
24 Center to telephone report any laboratory
25 results to physicians in August of 1992?
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2 A. I don't know that.
3 Q. Doctor, what was the next contact
4 you had with either Dr. Klein or Dr.
5 Daniels or Mrs. Foley with regard to
6 Mrs. Foley after you spoke to the doctors
7 about the positive Lyme titre report?
8 A. I believe it was the next
9 admission to northern Westchester hospital.
10 Q. In September of 1992?
11 A. Yes.
12 MR. MAURER: Let's mark as
13 Plaintiff's Exhibit No. 2 the second
14 hospital admission for September 1992 at
15 Northern Westchester Hospital Center.
16 (Plaintiffs' Deposition Exhibit 2
17 was marked for identification. Exhibit
18 retained by counsel.)
19 BY MR. MAURER:
20 Q. Doctor, would you look at what
21 has been marked for identification as
22 Plaintiff's Exhibit No. 2 as necessary to
23 answer the questions that I am about to
24 pose. What was the first date that you saw
25 Mrs. Foley while she was in the hospital in
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2 September of 1992?
3 A. September 22.
4 Q. Doctor, are you reading from the
5 progress note?
6 A. Yes, I am.
7 Q. Could you read word for word what
8 you entered in the chart for September 22,
9 1992?
10 A. 9/22 GI note, patient seen, note
11 dictated. Impression -- IMP -- fatty
12 liver, rule out drug related liver
13 abnormalities ABN. Rule out recurrent
14 stones. Rule out mild pancreatitis.
15 Suggest CT scan of the abdomen.
16 Q. Doctor, at that time was
17 Mrs. Foley receiving any intravenous
18 antibiotic treatment for Lyme disease
19 (witness and counsel confer)?
20 A. Yes, she was on intravenous,
21 Rocephin.
22 Q. Could treatment of Mrs. Foley
23 with Rocephin intravenously cause her to
24 have a fatty liver?
25 A. No.
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2 Q. Could it cause any of the other
3 things that you noted in your 9/22/92 chart
4 entry?
5 A. It is possible that it could have
6 caused some of the slight -- the liver test
7 abnormalities.
8 Q. Doctor, did you read the entire
9 9/22 entry?
10 A. Yes, I did.
11 Q. What is the next entry in the
12 chart that you made?
13 A. 9/24.
14 Q. Can you read that verbatim,
15 please?
16 A. 9/24 GI follow-up. Still some
17 right side discomfort but this now seems
18 more related to musculo-skeletal system
19 suggest monitoring of LFTs on a weekly
20 basis for several weeks as outpatient,
21 signed J. Brenner.
22 Q. What is the next entry, if any?
23 A. None by me.
24 Q. Doctor, have you seen Mrs. Foley
25 since 9/24/92?
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2 A. No.
3 Q. Did you ever treat Mrs. Foley
4 before her first hospitalization of July
5 30, 1992?
6 A. I don't remember.
7 Q. In your consultation note for the
8 second hospitalization you indicate under
9 past medical history in addition to Lyme
10 disease includes cholecystectomy done 28
11 years ago. What were you referring to
12 about in addition to Lyme disease as part
13 of her past medical history?
14 A. She was admitted with Lyme
15 disease and this did not mean that she had
16 Lyme disease on a prior admission. It
17 meant that she now had Lyme disease and in
18 addition she had a gall bladder out 28
19 years ago.
20 Q. I am a bit confused, doctor. I
21 am sorry. You make reference to Lyme
22 disease as part of the past medical
23 history.
24 A. I am sorry. Let me see that.
25 Q. What I am asking you is, what was
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2 your understanding as to when she had Lyme
3 disease in the past?
4 A. She had it somewhere in the
5 past. I have had been told that by her
6 doctors.
7 Q. Are you referring to what you
8 mentioned when I was asking you about --
9 A. Yes.
10 Q. Your discussions with doctors
11 Klein and Daniels after you saw the
12 positive Lyme titre report around 8/17/92?
13 A. I believe and I don't remember
14 precisely but I believe that this refers to
15 the fact that they had treated her for Lyme
16 disease in the past.
17 Q. So that information was given to
18 you by the doctors, not Mrs. Foley; is that
19 correct?
20 A. I don't recall her mentioning it
21 but she may have mentioned it as well.
22 Q. But that would be a guess on your
23 part?
24 A. I don't remember.
25 Q. Okay.
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2 MR. MAURER: I have no further
3 questions.
4 MS. VANZON: I have no
5 questions.
6 EXAMINATION CONDUCTED
7 BY MR. IACONIS:
8 Q. I am Anthony Iaconis. I am
9 counsel for Northern Westchester Hospital.
10 Doctor, would you have your staff
11 in your absence log any telephone calls
12 received from Northern Westchester
13 concerning tests you ordered at Northern
14 Westchester should the hospital have called
15 you with the results?
16 MR. MAURER: When?
17 MR. IACONIS: In August of
18 1992.
19 A. If the telephone call was
20 received, I would expect to be notified.
21 Q. I am not asking you --
22 A. We have a telephone log.
23 Q. Wait for the question,
24 doctor. --
25 (Witness rain counsel confer.)
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2 Q. If a telephone call came to your
3 office while you were on vacation in 1992
4 with the results of a test you ordered at
5 Northern Westchester, would a notation be
6 written that the hospital called regarding
7 a test or would the actual result of the
8 test be entered into your telephone log?
9 A. It might be either one or --
10 depending, you know, how reliable the
11 person was. It might be either one.
12 Q. Would your August 1992 telephone
13 logs still be in your possession at your
14 office or some place else?
15 A. I am not sure. They may.
16 Q. Doctor, if they are in existence,
17 would they be kept at your office?
18 A. They would.
19 MR. IACONIS: I have no
20 further questions
21 EXAMINATION CONDUCTED
22 BY MS. VANZON:
23 Q. Doctor, did you ever have any
24 conversations with Dr. Klein or Dr. Daniels
25 prior to when you ordered the Lyme disease
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2 tests? Did you have any conversations with
3 Drs. Klein or Daniels regarding Lyme
4 disease with respect to Mrs. Foley? Did I
5 make myself clear?
6 A. No.
7 Q. Prior to when you ordered the
8 Lyme disease tests, and I believe you
9 ordered it on August 8, did you --
10 A. No, August 6.
11 Q. Did you have any discussion with
12 Dr. Klein or Dr. Daniels regarding Lyme
13 disease and Mrs. Foley?
14 A. I do not remember that.
15 MS. VANZON: I have no further
16 questions
17 EXAMINATION CONDUCTED
18 BY MR. MAURER:
19 Q. Doctor, what is the nature of the
20 telephone log that you may or may not have
21 in your office?
22 A. When patients call their problems
23 are listed briefly and our response or
24 disposition of the matter is given.
25 Q. Who makes the entry normally?
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2 A. The person, one of my assistants.
3 Q. Doctor, complaints of a patient
4 may appear in this telephone log?
5 A. They may.
6 Q. And therefore that becomes part
7 of the record of the patient, does it not,
8 in the sense that it contains information
9 relevant to the patient who you are
10 treating?
11 A. But -- well --
12 Q. Kept separately from the
13 individual records but do you consider it
14 to be part of the overall records for the
15 patient?
16 A. It is borderline.
17 MS. FOURNIER: Note my
18 objection.
19 Q. Doctor, how long do you normally
20 keep records for patients?
21 A. Seven years.
22 Q. As required by the State of New
23 York?
24 A. I don't know if that is the
25 requirement. It may be.
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2 Q. Doctor, have you, prior to your
3 deposition, looked at your telephone log to
4 see if there was any entry indicating the
5 receipt of the results of the Lyme titre
6 test that you ordered on Mrs. Foley on
7 8/6/92?
8 A. No.
9 MR. MAURER: I had asked
10 defense counsel for Dr. Brenner to produce
11 all of the records pertaining to
12 Mrs. Foley. I consider the telephone log
13 to be part of those records. Therefore, I
14 have to consider the deposition remaining
15 open pending the receipt of a copy of any
16 log entry pertaining to Mrs. Foley.
17 Hopefully we will not have to return.
18 MS. FOURNIER: This is the
19 first time that I have heard of a telephone
20 log.
21 MR. MAURER: I am not
22 complaining. I am just leaving my options
23 open.
24 MS. FOURNIER: I understand
25 that. We will make a search for the
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2 telephone log and if we have copies of any
3 entries we certainly will provide them to
4 counsel.
5 ** INFORMATION REQUESTED TO BE SUPPLIED:
6 --------------------------------------
7 BY MR. MAURER:
8 Q. How soon can you provide copies
9 of the telephone log entries if they are
10 still in existence and there are any for
11 Mrs. Foley for the Lyme titre test to your
12 attorney?
13 A. A few days.
14 MS. FOURNIER: As soon as I
15 get it, I will disseminate it to all
16 counsel.
17 MR. MAURER: Could you try to
18 have it by the time of the hospital's
19 deposition date?
20 MR. IACONIS: That's
21 Wednesday.
22 MS. FOURNIER: You can give me
23 a call tomorrow.
24 THE WITNESS: Sure, no
25 problem.
WESTCHESTER REPORTING SERVICE
0120
1 JACK BRENNER
2 MR. MAURER: You can fax a
3 copy.
4 Q. Do you have a fax machine,
5 doctor?
6 A. I believe I do.
7 MR. MAURER: Subject to that
8 reservation, I have nothing further at this
9 time. Thank you, doctor.
10 (TIME NOTED: 3:45 P.M.)
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WESTCHESTER REPORTING SERVICE
0121
1 JACK BRENNER
2 STATE OF NEW YORK )
3 ss:
4 COUNTY OF WESTCHESTER )
5
6 I, JACK BRENNER, the witness
7 herein, having read the foregoing testimony
8 of the pages of this deposition do hereby
9 certify it to be a true and correct
10 transcript, subject to the corrections, if
11 any, shown on the attached page.
12 oOo
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15 ______________________
16 JACK BRENNER
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20 Subscribed and sworn to before me
21 this______day of___________, 19__
22 ________________________________.
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1 JACK BRENNER
2 STATE OF NEW YORK ) Pg__of__Pgs
3 ss:
4 COUNTY OF WESTCHESTER )
5 I wish to make the following changes,
6 for the following reasons:
7 PAGE LINE
8 ____ ____ CHANGE: _______________________
9 REASON: _______________________
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25 REASON: _______________________
WESTCHESTER REPORTING SERVICE
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1
2 INDEX
3 JACK BRENNER
4
5 PAGE: LINE:
6 EXAMINATIONS CONDUCTED:
7 BY MR. MAURER.......... 4 13
8 BY MR. IACONIS....... 114 7
9 BY MS. VANZON........ 115 22
10 BY MR. MAURER........ 116 18
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12 INFORMATION REQUESTED.... 119 5
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14 COURT RULINGS:............ 12 22
15 COURT RULINGS:........... 105 25
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17 UNANSWERED QUESTIONS:
18 COUNSEL DIRECTS WITNESS... 10 5
19 COUNSEL DIRECTS WITNESS... 12 7
20 COUNSEL DIRECTS WITNESS.. 102 3
21 COUNSEL DIRECTS WITNESS.. 103 15
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WESTCHESTER REPORTING SERVICE
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2 EXHIBIT INDEX
3 JACK BRENNER
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5 NO: DESCRIPTION: PAGE:
6 1 Brenner Billing Statement 21
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8 2 September 22 Hospital 109
9 Admission
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WESTCHESTER REPORTING SERVICE

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