LymeNet Law Pages
Case History Document



Hanania v Abemayor, et al
Entered By: Ira M Maurer/LymeNetDate Created: 10/4/98
Document Type: Other
Title: Trial Testimony Of Jeanette Kobel-Perez, R.P.A.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU: PART 4
-------------------------------------------------------------------------X

ALONY HANANIA, INDEX NO.
8368/96
Plaintiff,
- against -

COMMUNITY HEALTH PROGRAM OF QUEENS AND NASSAU
d/b/a CHP; VIOLET ABEMAYOR, M.D.; and JEANETTE
KOBEL-PEREZ, R.P.A.,

Defendants
-------------------------------------------------------------------------X
Mineola, New York
Thursday, September 16, 1998

B E F O R E: HON. HOWARD E. LEVITT,
Supreme Court Justice.

A P P E A R A N C E S:

ELKIND, FLYNN & MAURER, PC
11 Martine Avenue
White Plains, New York
by: IRA M. MAURER, ESQ.
Attorney for Plaintiff



BARTLETT, McDONOUGH, BASTONE & MONAGHAN
81 Main Street
White Plains, New York
by: GARRETT LEWIS, ESQ.
Attorney for Defendant







Valerie M. Cole
Official Court Reporter













1 Kobel - Plaintiff - Direct 331

10:07:46 2 (The following takes place in the presence of the jury.)

10:10:11 3 THE COURT: By the way, you don't stand for

10:10:13 4 me. We all rise together for justice, for our

10:10:16 5 concept of justice, and the dignity that belongs

10:10:19 6 to it, so that's the rising. Okay. Counsel?

10:10:25 7 MR. MAURER: Thank you, your Honor. At

10:10:26 8 this time I call to the stand Jeanette

10:10:29 9 Kobel-Perez, who I understand is just Jeanette

10:10:34 10 Kobel now. I'll try to remember.

11 J E A N E T T E K O B E L, called by

12 Plaintiff, residing at 3 Jayne Place, Baldwin, New York,

10:11:25 13 was duly sworn and testified as follows:

14 DIRECT EXAMINATION

10:11:26 15 BY MR. MAURER:

10:11:26 16 Q Good morning, Ms. Kobel.

10:11:28 17 A Good morning.

10:11:32 18 Q Preliminary I want to ask you just some

10:11:34 19 background questions, and then we'll get to June 3, 1994.

10:11:40 20 A Okay.

10:11:41 21 Q First of all, would I be correct that you are

10:11:43 22 not a doctor?

10:11:44 23 A Yes.

10:11:44 24 Q You are a registered physician's assistant?

10:11:48 25 A Yes.



VC





1 Kobel - Plaintiff - Direct 332

10:11:49 2 Q Okay. Would you please summarize your

10:11:52 3 educational background, starting from college?

10:11:59 4 A I went to Nassau Community College for two years

10:12:04 5 in 1973 to 1975. I had gone to a medical assistant's

10:12:13 6 school, I think it was 1975.

10:12:15 7 Q For how long?

10:12:16 8 A It was about a year.

10:12:18 9 Q That was a certificate program?

10:12:20 10 A Yes.

10:12:21 11 Q Please continue.

10:12:24 12 A I had training as a EMT, I don't remember

10:12:29 13 exactly when that was, and then I went to Wichita State

10:12:34 14 University for the PA program.

10:12:36 15 Q For the what?

10:12:37 16 A For the PA program.

10:12:38 17 Q Physician's assistant?

10:12:39 18 A Uh-hum.

10:12:40 19 Q And that was a two-year program?

10:12:42 20 A Right.

10:12:42 21 Q And that concluded in 1982?

10:12:44 22 A Yes.

10:12:45 23 Q And, when did you become licensed in New York as

10:12:47 24 a registered physician's assistant?

10:12:52 25 A We graduated in about August and then took our



VC





1 Kobel - Plaintiff - Direct 333

10:12:58 2 boards in October, and I think the results came in around

10:13:00 3 January or February.

10:13:04 4 Q As a registered physician's assistant in New

10:13:07 5 York, are you allowed to prescribe medication for

10:13:13 6 patients?

10:13:14 7 A Yes.

10:13:15 8 Q Are you able to do that without a doctor

10:13:18 9 cosigning?

10:13:20 10 A The prescription?

10:13:22 11 Q Yes. Does a doctor have to cosign?

10:13:24 12 A Cosign the prescription?

10:13:26 13 Q Or some other document at some point in time

10:13:28 14 after you prescribe it?

10:13:30 15 A No. The prescription can be signed by myself if

10:13:33 16 both of our names are on it.

10:13:35 17 Q Does the doctor have to, at some point after the

10:13:39 18 prescription is signed by you, have to sign any document

10:13:43 19 saying that the doctor agrees that this medication be

10:13:46 20 prescribed under New York law, as far as you know?

10:13:51 21 A Yes.

10:13:57 22 Q Now, after you became licensed to be a

10:14:00 23 registered physician's assistant, or RPA, in New York, you

10:14:04 24 started working in a number of different places; is that

10:14:07 25 correct?



VC





1 Kobel - Plaintiff - Direct 334

10:14:08 2 A Yes.

10:14:09 3 Q Tell us in chronological order, going further

10:14:12 4 back in time and working forward, up until your employment

10:14:15 5 at CHP, where you worked?

10:14:18 6 A When I first graduated school I worked at

10:14:20 7 Hempstead General Hospital and I was there for 10 years,

10:14:25 8 and then I went to CHP in like 1992.

10:14:35 9 Q As far as your education is concerned,

10:14:40 10 specifically with -- withdrawn. When you were working at

10:14:43 11 CHP, when you started there, did you have any knowledge

10:14:46 12 with regard to the subject of Lyme disease?

10:14:49 13 A Yes.

10:14:50 14 Q Okay. And what was the source of your

10:14:52 15 knowledge?

10:14:54 16 A Lectures, textbooks, journals.

10:15:01 17 Q What lectures did you attend and where were

10:15:05 18 they, dealing with Lyme disease in whole or in part?

10:15:09 19 A I couldn't tell you specifically.

10:15:11 20 Q Were they lectures that took place before you

10:15:13 21 started working at CHP?

10:15:15 22 A Before and during.

10:15:19 23 Q Who conducted that portion of the lecture

10:15:23 24 dealing with the subject of Lyme disease at CHP?

10:15:27 25 A I couldn't tell you.



VC





1 Kobel - Plaintiff - Direct 335

10:15:32 2 Q Prior to June 3, 1994, the date that you saw Mr.

10:15:35 3 Hanania at CHP, had you ever seen any pictures depicting

10:15:41 4 or showing what a Lyme disease rash can look like?

10:15:44 5 A Yes.

10:15:48 6 Q And, did you receive any documents, at any of

10:15:51 7 the lectures that you attended dealing with the subject of

10:15:55 8 Lyme disease, that described the Lyme rash prior to seeing

10:16:00 9 Mr. Hanania?

10:16:01 10 A Yes, I think in the past I had.

10:16:06 11 Q Now, had you ever heard before June, 1994 that

10:16:09 12 an area can be endemic for ticks that carry the Lyme

10:16:14 13 disease-causing bacteria?

10:16:16 14 A Yes.

10:16:16 15 Q And, did you understand that to mean -- well,

10:16:21 16 withdrawn. What did you understand that to mean?

10:16:24 17 A That the area was endemic? That there was a

10:16:27 18 high incidence of Lyme disease in that area.

10:16:31 19 Q And, would I be correct that prior to seeing Mr.

10:16:38 20 Hanania on June 3, 1994, you understood that the entire

10:16:40 21 eastern seaboard, including the tri-state area of

10:16:43 22 Connecticut, New York and New Jersey, was endemic for the

10:16:48 23 ticks that carry the Lyme disease bacteria?

10:16:50 24 A Yes.

10:16:53 25 Q By the way, I took your testimony before trial



VC





1 Kobel - Plaintiff - Direct 336

10:16:59 2 back on September 18, 1997; is that correct, as best as

10:17:04 3 you can recall?

10:17:05 4 A Yes. It was about a year ago, yes.

10:17:07 5 Q And did you have an opportunity to read the

10:17:09 6 transcript of that testimony prior to taking the stand

10:17:12 7 today, just to refresh your memory as to what questions

10:17:14 8 were asked and what you said in response?

10:17:16 9 A I think I did at some point, yes.

10:17:19 10 Q When?

10:17:22 11 A Oh, somewhere in the last couple of weeks.

10:17:29 12 Q That's the most recent time you looked?

10:17:31 13 A Yes.

10:17:32 14 Q And you looked at it before that, didn't you, to

10:17:34 15 be able to verify that the transcript was accurate?

10:17:37 16 A I had it available. I don't remember if I ever

10:17:40 17 really looked at it. I kind of put it down.

10:17:43 18 Q Did you sign a form saying that the transcript

10:17:45 19 was accurate?

10:17:47 20 A I don't remember.

10:17:55 21 MR. MAURER: Excuse me one moment, please.

10:18:35 22 Q Would you have signed a form verifying the

10:18:37 23 accuracy of the transcript if you had not fully read the

10:18:41 24 transcript?

10:18:43 25 A No.



VC





1 Kobel - Plaintiff - Direct 337

10:18:44 2 Q No?

10:18:45 3 A No.

10:19:01 4 Q Would I be correct that before you saw Mr.

10:19:03 5 Hanania on June 3, 1994 you were aware that the summer

10:19:07 6 months, let's say including June, which technically is

10:19:14 7 spring and summer, obviously, that those months -- during

10:19:18 8 those months there's a higher incidence of reported cases

10:19:20 9 of Lyme disease in the tri-state area?

10:19:23 10 A Yes.

10:19:30 11 Q And did you also know before seeing Mr. Hanania

10:19:33 12 on June 3, 1994 that approximately two thirds of those

10:19:38 13 people who contract Lyme disease would have some type of a

10:19:44 14 Lyme disease rash?

10:19:46 15 A Yes.

10:19:49 16 Q And did you know that Lyme disease was usually

10:19:52 17 transmitted by a tick carrying a spirochete bacteria?

10:20:00 18 A Yes.

10:20:01 19 Q And did you know that back prior to June 3,

10:20:05 20 1994, that Lyme disease was typically referred to by the

10:20:10 21 medical community as having three stages, a first stage or

10:20:15 22 acute phase of illness?

10:20:17 23 A Yes.

10:20:18 24 Q And did you know at that time that the Lyme rash

10:20:22 25 usually appeared during the first stage or acute phase of



VC





1 Kobel - Plaintiff - Direct 338

10:20:25 2 the illness?

10:20:26 3 A Yes.

10:20:27 4 Q And did you also know that there was also

10:20:30 5 referred to as a second stage or early disseminated Lyme

10:20:34 6 disease phase?

10:20:35 7 A Yes.

10:20:36 8 Q And that there was a third stage or late Lyme

10:20:39 9 disease stage?

10:20:40 10 A Yes.

10:20:40 11 Q You were aware of all these three stages that --

10:20:43 12 or how Lyme disease referred to in that manner --

10:20:46 13 A Yes.

10:20:47 14 Q -- before you saw Mr. Hanania?

10:20:48 15 A Yes.

10:20:58 16 Q And did you know before you saw Mr. Hanania that

10:21:01 17 the presence of the spirochete bacteria in the skin in

10:21:07 18 the -- at the site of a tick bite is what causes the rash

10:21:11 19 to develop?

10:21:13 20 A Yes.

10:21:18 21 Q And did you know before seeing Mr. Hanania that

10:21:22 22 a Lyme disease-related rash generally was five to six

10:21:26 23 centimeters, although sometimes smaller when it first

10:21:30 24 appears and sometimes larger?

10:21:32 25 A Yes.



VC





1 Kobel - Plaintiff - Direct 339

10:21:34 2 Q And did you know that the size of the rash would

10:21:36 3 vary from patient to patient?

10:21:38 4 A Yes.

10:21:41 5 Q And did you know that the rash would have some

10:21:47 6 type of red appearance?

10:21:49 7 A Yes.

10:21:49 8 Q A Lyme rash I'm talking about?

10:21:51 9 A Yes.

10:21:51 10 Q And did you know that it could be pruritic or

10:21:54 11 itchy?

10:21:56 12 A Yes.

10:21:56 13 Q And did you know that the Lyme rash is expanding

10:22:00 14 in nature?

10:22:02 15 A Yes.

10:22:04 16 Q Did you know that the rash -- the Lyme rash

10:22:06 17 would be annular or ringlike?

10:22:09 18 A Yes.

10:22:11 19 Q But not necessarily a perfect circle; is that

10:22:13 20 correct?

10:22:14 21 A Yes.

10:22:14 22 Q You knew that before you saw Mr. Hanania?

10:22:17 23 A Yes.

10:22:19 24 Q And, did you know that the Lyme rashes -- not

10:22:24 25 all but some Lyme rashes have an area of central clearing



VC





1 Kobel - Plaintiff - Direct 340

10:22:29 2 inside the outer circle?

10:22:31 3 A Yes.

10:22:35 4 Q And did you know that Lyme rashes tend to be

10:22:37 5 painless but sometimes can cause pain?

10:22:40 6 A Yes.

10:22:46 7 Q And did you know that some Lyme rashes don't

10:22:49 8 have a central clearing area, can just be red or

10:22:52 9 erythematous in nature?

10:22:54 10 A Yes.

10:23:08 11 Q Did you know before seeing Mr. Hanania that with

10:23:11 12 regard to the first stage of Lyme disease that Lyme

10:23:17 13 disease-related symptoms could include fatigue?

10:23:20 14 A Yes.

10:23:21 15 Q Myalgias or muscle aches?

10:23:23 16 A Yes.

10:23:25 17 Q Fever, low or high?

10:23:27 18 A Yes.

10:23:29 19 Q And that those fevers can fluctuate above and

10:23:32 20 below 100.5 degrees Fahrenheit?

10:23:36 21 A Yes.

10:23:36 22 Q Headaches?

10:23:38 23 A Yes.

10:23:44 24 Q Joint pain?

10:23:44 25 A Yes.



VC





1 Kobel - Plaintiff - Direct 341

10:23:48 2 Q Did you know that the presence of a Lyme rash

10:23:54 3 was a basis for diagnosing Lyme disease by itself, if it

10:23:59 4 was present, if found in a patient in, let's say, May or

10:24:08 5 June -- let me start again.

10:24:10 6 THE COURT: Why don't you start from the

10:24:11 7 beginning?

10:24:11 8 MR. MAURER: Yes.

10:24:12 9 MR. LEWIS: Judge, may we just approach for

10:24:13 10 a second.

10:24:14 11 THE COURT: Sure.

10:24:15 12 MR. LEWIS: Because my objection is to

10:24:15 13 form, and it may correct a lot of subsequent

10:24:18 14 questions.

10:24:19 15 THE COURT: Okay. Come up.

10:24:25 16 (Whereupon there was a side bar conference.)

10:25:48 17 Q Ms. Kobel, prior to seeing Mr. Hanania, did you

10:25:53 18 know that the presence of a Lyme rash was a basis, by

10:25:59 19 itself, without the presence of any other symptoms that

10:26:03 20 you would associate with Lyme disease, for making the

10:26:06 21 diagnosis of Lyme disease?

10:26:11 22 A I'm not sure if I understand what you're asking

10:26:14 23 me. Could you say that again?

10:26:17 24 MR. MAURER: Could we have the reporter

10:26:19 25 read it back, please?



VC





1 Kobel - Plaintiff - Direct 342

10:26:21 2 THE COURT: Surely.

10:26:43 3 (Whereupon the reporter read back the last question.)

10:26:51 4 A No.

10:27:06 5 Q Let me see if I can skip some of these

10:27:09 6 questions. Did you understand the diagnosis of Lyme

10:27:27 7 disease to be a clinical diagnosis, prior to the time you

10:27:31 8 saw Mr. Hanania?

10:27:35 9 A Sometimes.

10:27:38 10 Q Well, in order to make the diagnosis of Lyme

10:27:41 11 disease, as you understood it, before you saw Mr. Hanania,

10:27:45 12 were there serologic studies, blood tests that could be

10:27:49 13 done?

10:27:50 14 A Yes.

10:27:50 15 Q But those were tests that were intended; am I

10:27:53 16 correct, to assist the clinician in making a clinical

10:27:58 17 diagnosis; is that correct?

10:28:00 18 A They could be -- well, yes, they could be used.

10:28:03 19 Q In other words, did you understand that the Lyme

10:28:06 20 disease serologic tests that were available prior to the

10:28:09 21 time you saw Mr. Hanania were not a basis for diagnosing

10:28:12 22 Lyme disease by themselves?

10:28:15 23 A Yes.

10:28:16 24 Q So, back to my original question.

10:28:18 25 A Okay.



VC





1 Kobel - Plaintiff - Direct 343

10:28:18 2 Q Would you agree that you knew, prior to seeing

10:28:21 3 Mr. Hanania, that Lyme disease is diagnosed clinically,

10:28:26 4 based upon different information that the clinician gets?

10:28:30 5 A Yes.

10:28:31 6 Q And would you also agree that you knew that Lyme

10:28:34 7 disease is a differential diagnosis?

10:28:37 8 A Yes.

10:28:37 9 Q And by differential diagnosis, would I be

10:28:42 10 correct that you understood that to mean considering a

10:28:46 11 number of different possible diagnoses and ruling in or

10:28:48 12 ruling out what's right or wrong?

10:28:50 13 A Yes.

10:28:51 14 Q And in order to do that, you would have to find

10:28:53 15 out as much information as you could, both by history; is

10:28:57 16 that correct?

10:28:58 17 A Yes.

10:28:59 18 Q And through clinical examination of the patient

10:29:02 19 in the office?

10:29:02 20 A Yes.

10:29:03 21 Q And through any diagnostic tests, if

10:29:05 22 appropriate?

10:29:06 23 A Yes.

10:29:16 24 Q Did you diagnose anyone with Lyme disease before

10:29:18 25 you saw Mr. Hanania?



VC





1 Kobel - Plaintiff - Direct 344

10:29:21 2 A Yes, I believe so.

10:29:23 3 Q How many did you diagnose before you saw Mr.

10:29:26 4 Hanania?

10:29:29 5 A I couldn't give you an exact number.

10:29:31 6 Q Can you give us an approximation?

10:29:33 7 A A few.

10:29:42 8 Q Did any of those few patients who you diagnosed

10:29:45 9 as having Lyme disease before you saw Mr. Hanania have a

10:29:49 10 Lyme rash --

10:29:51 11 A Yes.

10:29:51 12 Q -- when they presented to you?

10:29:53 13 A Yes.

10:29:57 14 Q How many of them did?

10:29:59 15 A All of them.

10:30:20 16 Q Do you recall, at your deposition, on page 58,

10:30:29 17 my asking you this question and you giving this response?

10:30:32 18 "Question, did you diagnose any patients as having Lyme

10:30:36 19 disease on or before June 1, 1994, based upon clinical

10:30:41 20 findings alone or which did not include a Lyme rash?

10:30:44 21 Answer, I can't say for sure." My question

10:30:49 22 again is did you -- are you sure, as you sit here today,

10:30:54 23 that you diagnosed individuals with Lyme disease who you

10:31:05 24 were sure had a Lyme rash present prior to seeing Mr.

10:31:08 25 Hanania?



VC





1 Kobel - Plaintiff - Direct 345

10:31:15 2 A I don't recall ever diagnosing anyone with Lyme

10:31:18 3 disease that didn't have the rash.

10:31:34 4 Q Incidentally, prior to seeing Mr. Hanania, do

10:31:38 5 you recall ever treating any patients with medication that

10:31:42 6 you prescribed where you weren't sure of what the correct

10:31:46 7 diagnosis was, and you were considering that there was

10:31:50 8 more than one correct or possible explanation?

10:31:55 9 MR. LEWIS: Only to the form, Judge.

10:31:57 10 THE COURT: Well, I'll allow it, even

10:32:00 11 though to a degree I can understand it, but I'll

10:32:03 12 allow it.

10:32:04 13 A Say again. Did I ever prescribe medicine for

10:32:07 14 somebody where I wasn't sure what the diagnosis was?

10:32:11 15 Q Right, where you were considering one of several

10:32:13 16 possible conditions as the appropriate diagnosis?

10:32:15 17 A Yes.

10:32:22 18 Q And, did you, prior to seeing Mr. Hanania, ever

10:32:25 19 treat any of those patients where you were considering

10:32:28 20 more than one possible diagnosis as the correct one, by

10:32:33 21 prescribing medication that covered the bases, that

10:32:36 22 covered all the diagnoses you were considering or more

10:32:39 23 than one of the diagnoses you were considering?

10:32:46 24 A I'm just -- I'm just trying to think of a for

10:32:49 25 instance. I would have to say generally you -- I would



VC





1 Kobel - Plaintiff - Direct 346

10:32:55 2 prescribe to cover what I thought it was, not necessarily

10:33:05 3 everything it possibly could be.

10:33:05 4 Q Well, did you ever prescribe for more than one

10:33:05 5 condition? In other words, were there ever any instances

10:33:07 6 before you saw Mr. Hanania where you thought a patient

10:33:09 7 might have two possible reasonable diagnoses, and since

10:33:13 8 you thought it was probably one and not the other, you

10:33:17 9 still prescribed something to cover both possible

10:33:21 10 conditions since you weren't sure? Did you ever do that?

10:33:24 11 MR. LEWIS: Only to the form, Judge,

10:33:24 12 because we've had probables to possibles to

10:33:27 13 possibles to probables. I object to the form.

10:33:30 14 THE COURT: Try again.

10:33:34 15 Q Prior to seeing Mr. Hanania, in those patients

10:33:36 16 where you were considering more than one diagnoses as the

10:33:41 17 appropriate diagnosis for the patient, did you ever

10:33:45 18 prescribe a medication that would cover two of the

10:33:50 19 possible diagnoses that you were considering?

10:33:53 20 A I -- I mean, I can't think of exact instances,

10:33:56 21 but I suppose if there were two diagnoses that were

10:33:59 22 equally weighted, then, yeah, I might prescribe something

10:34:03 23 that would cover both of those diagnoses.

10:34:06 24 Q Well, did you ever prescribe a medication to

10:34:08 25 cover two diagnoses you were considering, even where you



VC





1 Kobel - Plaintiff - Direct 347

10:34:11 2 didn't believe they were equally weighted as what the

10:34:16 3 correct diagnosis would be?

10:34:24 4 A Offhand I can't -- I can't say that I did. I

10:34:27 5 can't think of a specific instance.

10:34:31 6 Q Are you familiar with Augmentin?

10:34:33 7 A Yes.

10:34:33 8 Q Did you know what Augmentin was before you saw

10:34:36 9 Mr. Hanania on June 3, 1994?

10:34:40 10 A I believe so.

10:34:41 11 Q What family of drugs is Augmentin in?

10:34:44 12 A It's in the penicillin family.

10:34:47 13 Q And did you know that before you saw Mr.

10:34:48 14 Hanania?

10:34:50 15 A Yes.

10:34:50 16 Q Did you know that penicillin -- penicillin

10:34:53 17 family drugs were used to treat first stage Lyme disease

10:34:56 18 when you saw Mr. Hanania?

10:34:59 19 A Yes, some. Yes, some were.

10:35:05 20 Q Did you know that penicillin family drugs were

10:35:08 21 used to treat cellulitis before you saw Mr. Hanania?

10:35:15 22 A Not generally.

10:35:17 23 Q What does "not generally" mean?

10:35:19 24 A Well, they're not a first-line treatment for

10:35:22 25 cellulitis.



VC





1 Kobel - Plaintiff - Direct 348

10:35:25 2 Q Did you know that you could treat cellulitis and

10:35:28 3 Lyme disease with a penicillin family drug and cover both

10:35:34 4 of those conditions adequately and reasonably before you

10:35:39 5 saw Mr. Hanania, if you were considering Lyme disease and

10:35:42 6 cellulitis as the two possible diagnoses?

10:35:51 7 A I wouldn't have done that.

10:35:58 8 Q Well, the question wasn't what you would do.

10:36:00 9 The question is what you knew.

10:36:02 10 A Okay. The question is did I know that I -- say

10:36:06 11 again?

10:36:07 12 Q That you could adequately treat both cellulitis

10:36:09 13 and first-stage Lyme disease with a penicillin family

10:36:13 14 drug? Did you know that before you saw Mr. Hanania on

10:36:16 15 June 3, 1994?

10:36:28 16 A Yes, I was aware of drugs that could treat both.

10:36:31 17 Q I'm sorry?

10:36:32 18 A I was aware there was a drug that could treat

10:36:34 19 both.

10:36:34 20 Q What drug was that that you were aware of?

10:36:37 21 A Well, the Augmentin you were just speaking of,

10:36:41 22 but --

10:36:42 23 Q You knew that you could treat cellulitis and

10:36:44 24 Lyme disease with Augmentin; that's what you're saying?

10:36:48 25 A If you're asking me if you can treat that, would



VC





1 Kobel - Plaintiff - Direct 349

10:36:50 2 it cover both, yes, it would.

10:36:52 3 Q And you knew that before you saw Mr. Hanania on

10:36:55 4 June 3, 1994; correct?

10:36:57 5 A Yes.

10:37:15 6 Q I'm sorry, and I believe I asked you if

10:37:19 7 Augmentin was a penicillin family drug and you said yes;

10:37:23 8 correct?

10:37:24 9 A Yes.

10:37:25 10 Q Okay. And you had prescribed Augmentin for

10:37:29 11 patients prior to seeing Mr. Hanania; is that correct?

10:37:32 12 A Yes.

10:37:36 13 Q Prior to seeing Mr. Hanania, were you trained at

10:37:39 14 CHP that if you weren't sure what was wrong with a patient

10:37:43 15 that you should go talk to a physician about it at CHP?

10:37:51 16 A Yes, I could talk to a physician about it, yes.

10:38:04 17 Q Did you ever go to consult with any physician

10:38:07 18 with reference to Mr. Hanania on June 3, 1994 while

10:38:12 19 working at CHP?

10:38:15 20 A No.

10:38:20 21 Q Prior to seeing Mr. Hanania, if you were

10:38:25 22 concerned that a patient might have Lyme disease, would

10:38:30 23 you, in evaluating the patient, obtain a history?

10:38:34 24 A Yes.

10:38:34 25 Q And, in that history would you always ask if the



VC





1 Kobel - Plaintiff - Direct 350

10:38:38 2 patient had any known tick bites?

10:38:42 3 A Yes.

10:38:42 4 Q And would you ask about the patient's symptoms?

10:38:46 5 A Yes.

10:38:47 6 Q And would you ask if the patient had been

10:38:52 7 exposed to any geographic location where they might have

10:38:55 8 been exposed to a tick infected with the Lyme

10:38:59 9 disease-causing bacteria, in substance if not necessarily

10:39:02 10 in the same words that I asked?

10:39:12 11 A I'm not sure -- could you say that again?

10:39:12 12 Q Sure. When taking that history from a patient

10:39:12 13 who you thought might have Lyme disease, who you were

10:39:14 14 evaluating prior to when you saw Mr. Hanania, would you

10:39:18 15 ask them if they had been in a geographic location where

10:39:22 16 they may have been exposed to a tick infected with the

10:39:25 17 bacteria that causes Lyme disease?

10:39:28 18 A In a sense, yes.

10:39:35 19 Q But, if the patient lived in the tri-state area,

10:39:41 20 and you knew that when you would see each patient, you

10:39:43 21 would know where they lived; correct?

10:39:45 22 A Yes.

10:39:46 23 Q Okay. So that if you knew a patient lived in

10:39:49 24 the tri-state area prior to when you saw Mr. Hanania,

10:39:53 25 would I be correct that whether or not they told you that



VC





1 Kobel - Plaintiff - Direct 351

10:39:56 2 they were aware of being exposed to deer ticks that could

10:40:02 3 cause them to contract Lyme disease, that you would

10:40:05 4 consider that anyway?

10:40:06 5 A Uh-hum.

10:40:06 6 Q Is that correct?

10:40:08 7 A Yes.

10:40:08 8 Q Just because you knew where they lived?

10:40:10 9 A Yes.

10:40:10 10 Q And you knew that the area, the tri-state area,

10:40:12 11 was an endemic area?

10:40:14 12 A Yes.

10:40:16 13 Q And would I be correct that, prior to seeing Mr.

10:40:20 14 Hanania, that you considered exposure to a deer tick that

10:40:24 15 carries the Lyme bacteria a significant piece of

10:40:28 16 information when making the diagnosis of whether or not a

10:40:30 17 patient had Lyme disease?

10:40:32 18 A Yes.

10:40:38 19 Q Did you consider, prior to when you saw Mr.

10:40:41 20 Hanania, the time of year that you were seeing the patient

10:40:45 21 a significant piece of information when making a diagnosis

10:40:49 22 of whether or not a patient had Lyme disease?

10:40:53 23 A Yes.

10:40:54 24 Q So that if a patient came in in June, in 1994,

10:40:59 25 you would consider the time of the year significant when



VC





1 Kobel - Plaintiff - Direct 352

10:41:02 2 evaluating the patient for possible Lyme disease; correct?

10:41:05 3 A Yes.

10:41:09 4 Q And when you took your history down when you

10:41:11 5 would see a patient prior to seeing Mr. Hanania, would I

10:41:15 6 be correct that you would mark down everything in the

10:41:18 7 chart at CHP that the patient told you that you considered

10:41:23 8 pertinent?

10:41:24 9 A Yes.

10:41:31 10 Q I mentioned cellulitis before. What was your

10:41:34 11 understanding of what cellulitis was before you saw Mr.

10:41:38 12 Hanania?

10:41:41 13 A An infection of the skin, skin structures.

10:41:44 14 Q Is Lyme disease -- withdrawn. Is a Lyme disease

10:41:51 15 rash an infection of the skin?

10:41:56 16 A Yes.

10:42:07 17 Q Prior to seeing Mr. Hanania, did you understand

10:42:11 18 that some of the symptoms of cellulitis included an

10:42:15 19 erythema or red rash?

10:42:17 20 A Yes.

10:42:19 21 Q That sometimes the skin would be swollen?

10:42:22 22 A Yes.

10:42:24 23 Q That sometimes the skin would be tender at the

10:42:27 24 site of the rash?

10:42:28 25 A Yes.



VC





1 Kobel - Plaintiff - Direct 353

10:42:29 2 Q That sometimes there was an increase in the

10:42:31 3 temperature of the skin at the site of the rash?

10:42:34 4 A Yes.

10:42:36 5 Q And that sometimes the rash would be warm to

10:42:38 6 touch?

10:42:39 7 A Yes.

10:42:43 8 Q And, prior to seeing Mr. Hanania, did you know

10:42:46 9 that both Lyme disease as well as cellulitis had common

10:42:50 10 symptoms of redness of the skin?

10:42:53 11 A Yes.

10:42:56 12 Q Warmth of the skin?

10:43:00 13 A That they both could be warm at the site?

10:43:03 14 Q Yes.

10:43:03 15 A Yes.

10:43:10 16 Q And that both rashes from Lyme disease and

10:43:13 17 cellulitis could be pruritic or itchy?

10:43:19 18 A Yes.

10:43:26 19 Q And did you know that Duricef was an antibiotic

10:43:31 20 that was used to treat cellulitis before you saw Mr.

10:43:34 21 Hanania?

10:43:35 22 A Yes.

10:43:35 23 Q And did you know that Duricef was not an

10:43:38 24 antibiotic that was used to treat first-stage Lyme disease

10:43:42 25 before you saw Mr. Hanania?



VC





1 Kobel - Plaintiff - Direct 354

10:43:44 2 A Yes.

10:43:52 3 Q Did you know before you saw Mr. Hanania what a

10:43:55 4 central punctate is?

10:43:57 5 A Yes.

10:43:58 6 Q What was your understanding of the term?

10:44:01 7 A It's an area where you can see like a defect

10:44:06 8 like a -- like a puncture wound in the skin.

10:44:11 9 Q And did you understand that that puncture wound

10:44:15 10 could be caused by an insect bite?

10:44:18 11 A Yes.

10:44:18 12 Q And it could be caused by a tick bite? You

10:44:21 13 understood that; correct?

10:44:22 14 A Yes.

10:44:22 15 Q And you knew that before you saw Mr. Hanania?

10:44:25 16 A Yes.

10:44:30 17 Q And did you know before you saw Mr. Hanania that

10:44:33 18 a Lyme disease patient could start to exhibit a Lyme rash

10:44:38 19 anywhere from a few days to a month after a tick bite?

10:44:42 20 A Yes.

10:44:48 21 Q I don't think I asked you this one before. Did

10:44:50 22 you know before you saw Mr. Hanania that a Lyme rash could

10:44:53 23 present as firmer than normal skin?

10:44:56 24 A Yes.

10:45:00 25 Q Did you know before you saw Mr. Hanania that



VC





1 Kobel - Plaintiff - Direct 355

10:45:03 2 complaints of neck pain are seen in some Lyme disease

10:45:08 3 patients with disseminated Lyme disease?

10:45:11 4 A Yes.

10:45:13 5 Q And did you know before you saw Mr. Hanania that

10:45:16 6 some Lyme disease patients develop meningitis after

10:45:21 7 contracting Lyme disease?

10:45:30 8 A Yes.

10:45:30 9 Q And what was your understanding of what

10:45:30 10 meningitis is?

10:45:30 11 A It's an infection where the germs causing the

10:45:33 12 infection get into the cerebrospinal fluid.

10:45:37 13 Q And it actually involves an infection of brain;

10:45:41 14 is that correct?

10:45:42 15 A Yes.

10:45:43 16 Q You understood that before you saw Mr. Hanania?

10:45:45 17 A Yes.

10:45:54 18 Q And did you understand before you saw Mr.

10:45:56 19 Hanania that a patient who has Lyme disease who starts to

10:46:01 20 develop pain in the neck, that that is a precursor to the

10:46:05 21 onset of Lyme meningitis?

10:46:08 22 MR. LEWIS: Judge, at a certain point are

10:46:09 23 we going to get to June 3, 1994?

10:46:12 24 THE COURT: All right.

10:46:12 25 MR. MAURER: I think we're doing that right



VC





1 Kobel - Plaintiff - Direct 356

10:46:14 2 now, your Honor. I'm trying to be right on

10:46:16 3 point.

10:46:16 4 THE COURT: All right.

10:46:17 5 MR. LEWIS: It's not on point, because it

10:46:18 6 has nothing to do with the symptomatology that

10:46:22 7 was expressed to Ms. Kobel on June 3, Judge, at

10:46:25 8 all. I'd be happy to show you the note of June 3.

10:46:29 9 THE COURT: Do you have another question?

10:46:37 10 Q Does the chart from CHP, which we marked at your

10:46:50 11 deposition and which is in evidence as plaintiff's exhibit

10:46:53 12 one, does that chart entry for 6/3/94, urgent visit,

10:46:57 13 contain all of your chart entries pertaining to when you

10:47:01 14 saw Mr. Hanania on that date?

10:47:04 15 A Yes.

10:47:09 16 Q Have you had a chance to look at the CHP chart

10:47:13 17 with reference to Mr. Hanania since the time that this

10:47:16 18 lawsuit was commenced?

10:47:20 19 A Part of it, yes. I didn't look at the whole

20 chart.

10:47:23 21 Q When's the last time you looked at the chart?

10:47:25 22 A This morning.

10:47:32 23 Q If -- withdrawn. What part of a patient's

10:47:39 24 records would have a notation from a doctor who signs onto

10:47:46 25 your prescription of antibiotic for a patient?



VC





1 Kobel - Plaintiff - Direct 357

10:47:49 2 A I'm sorry?

10:47:50 3 Q Earlier I asked you if a doctor in your office

10:47:56 4 has to sign onto the chart at some point after you

10:48:03 5 prescribe an antibiotic for a patient, and you said yes;

10:48:06 6 correct?

10:48:07 7 A There's usually a countersignature.

10:48:10 8 Q Okay. What part of the chart would contain the

10:48:12 9 countersignature for that medication?

10:48:14 10 A If we're talking about CHP, I'm not sure exactly

10:48:17 11 where they made the notation.

10:48:19 12 Q Did you ever see such a notation at anytime

10:48:22 13 during the entire time you worked at CHP?

10:48:26 14 A I can't recall.

10:48:28 15 Q Did you ever observe such a countersignature in

10:48:31 16 Mr. Hanania's chart from any physician after you

10:48:35 17 prescribed Duricef for Mr. Hanania?

10:48:38 18 A No.

10:49:01 19 Q With the Court's permission, I'd like to show

10:49:03 20 you your chart entry.

10:49:05 21 MR. MAURER: May I approach?

10:49:06 22 THE COURT: Yes, sure.

10:49:22 23 Q Now, if you'd look along with me, would I be

10:49:27 24 correct that the chart entry that you made for Mr. Hanania

10:49:29 25 on June 3, 1994 indicated that the patient complained of



VC





1 Kobel - Plaintiff - Direct 358

10:49:37 2 an erythematous, tender, slightly pruritic area of skin,

10:49:44 3 left axilla for two days?

10:49:46 4 A Yes.

10:49:47 5 Q And what did you understand that all to mean in

10:49:50 6 laymen's terms?

10:49:52 7 A That it was red, it was painful if you touched

10:49:56 8 it, itching, slightly itching, and it was on the -- like

10:50:05 9 the armpit area on the left side.

10:50:09 10 Q And, you also indicated that Mr. Hanania denied

10:50:13 11 trauma to the skin; is that correct?

10:50:15 12 A Yes.

10:50:15 13 Q What did you mean by denied drama?

10:50:19 14 A Normally if somebody had a rash that looked like

10:50:22 15 this, I would ask them had -- could they have been bitten

10:50:25 16 by any insect of any kind, could they have been stuck by a

10:50:34 17 needle, caught in a zipper, any kind of trauma, if

10:50:37 18 anything could have happened to the skin at that site.

10:50:39 19 Q Did you know before you saw Mr. Hanania that

10:50:43 20 more often than not patients who are bitten by a deer tick

10:50:48 21 in May or June of any given year do not see the tick on

10:50:55 22 them while it's feeding?

10:50:57 23 A Yes. Often they don't.

10:50:59 24 Q So it would not have -- in your experience, it

10:51:01 25 would not have been uncommon for someone such as Mr.



VC





1 Kobel - Plaintiff - Direct 359

10:51:04 2 Hanania to be unaware that there had been a tick on him,

10:51:08 3 which had since fallen off before coming to you?

10:51:10 4 A Yes.

10:51:10 5 Q And you knew that when you saw him?

10:51:13 6 A Yes.

10:51:18 7 Q And, you indicated in the chart, please continue

10:51:20 8 to look on with me, under your physical exam findings that

10:51:25 9 you, in fact, saw in the left axilla the same area that

10:51:30 10 Mr. Hanania had told you about, an erythematous, indurated

10:51:36 11 area three centimeters in size; is that correct?

10:51:47 12 A Yes.

10:51:47 13 Q And you noted that he had minimal tenderness?

10:51:48 14 A Yes.

10:51:49 15 Q No drainage?

10:51:50 16 A Yes.

10:51:51 17 Q And that he was positive for a central punctate?

10:51:56 18 A Yes.

10:51:56 19 Q You saw a hole that was -- could be consistent

10:51:59 20 with a deer tick bite; is that correct, inside the area of

10:52:02 21 the rash that you observed on Mr. Hanania; correct?

10:52:05 22 A Yes.

10:52:08 23 Q And at that time it was your assessment that Mr.

10:52:12 24 Hanania may have had an insect bite?

10:52:16 25 A Yes.



VC





1 Kobel - Plaintiff - Direct 360

10:52:16 2 Q You put a question mark there; is that correct?

10:52:19 3 A Yes.

10:52:19 4 Q Because you weren't certain, but that's

10:52:21 5 something that you strongly were considering?

10:52:23 6 A Yes.

10:52:25 7 Q And you made a diagnosis of cellulitis?

10:52:28 8 A Yes.

10:52:28 9 Q Is that right?

10:52:29 10 A Yes.

10:52:30 11 Q When you saw Mr. Hanania, did you know where he

10:52:33 12 lived?

10:52:34 13 A Yes. Not exactly. I mean, I didn't know his

10:52:39 14 address.

10:52:40 15 Q But you knew he lived in an area that is endemic

10:52:43 16 for deer ticks that are infected for Lyme disease; is that

10:52:48 17 correct?

10:52:48 18 A Yes.

10:52:48 19 Q And, did you consider that Mr. Hanania may have

10:53:04 20 been suffering from Lyme disease when you saw him?

10:53:13 21 A It's considered a differential diagnosis; yes.

10:53:28 22 Q And when you say you considered it, you mean you

10:53:31 23 thought about it and ruled it out?

10:53:35 24 A Yes.

10:53:36 25 Q Now, when you ruled out Lyme disease as a



VC





1 Kobel - Plaintiff - Direct 361

10:53:41 2 possible explanation or a reasonable explanation for Mr.

10:53:45 3 Hanania's clinical presentation, were you aware that Lyme

10:53:53 4 disease in its early stage could be treated effectively

10:53:59 5 with a very high percentage of success?

10:54:04 6 A Yes.

10:54:05 7 Q And were you aware, when you saw Mr. Hanania,

10:54:08 8 that if you don't successfully treat Lyme disease in the

10:54:12 9 first stage, that it's more difficult to treat when it

10:54:17 10 becomes disseminated in the patient's body?

10:54:21 11 MR. LEWIS: To the form, Judge.

10:54:22 12 THE COURT: I'll allow it. I'll allow it.

10:54:25 13 A Yes.

10:54:26 14 Q And did you know that -- withdrawn. When you

10:54:34 15 ruled out Lyme disease in Mr. Hanania's case, did you

10:54:39 16 think about that -- what you knew, as you just told us,

10:54:43 17 that Mr. Hanania, if he has -- if he possibly did have

10:54:47 18 Lyme disease, which you did not treat, would go onto

10:54:54 19 disseminated Lyme disease? Did you consider that before

10:54:57 20 you ruled out Lyme disease?

10:54:59 21 MR. LEWIS: To the form, Judge.

10:55:01 22 THE COURT: I sustain the objection.

10:55:04 23 Q Did you have any concern, before you ruled out

10:55:07 24 Lyme disease as an appropriate diagnosis for Mr. Hanania,

10:55:12 25 that, in fact, he had Lyme disease, and that if you didn't



VC





1 Kobel - Plaintiff - Direct 362

10:55:16 2 treat it with an appropriate antibiotic, that he could go

10:55:20 3 onto develop disseminated disease?

10:55:23 4 MR. LEWIS: Objection.

10:55:25 5 THE COURT: Still it's the form, but all

10:55:27 6 right, I'm going to allow it. Could you answer

10:55:28 7 that? You started to answer, I think, before.

10:55:30 8 Can you answer it?

10:55:32 9 A Ask me the question again, cause it's --

10:55:34 10 THE COURT: We'll have it read back.

10:55:55 11 (Whereupon the reporter read back the last question.)

10:55:57 12 THE COURT: That, in fact, he had that, I

10:55:59 13 think, is --

10:56:00 14 MR. LEWIS: That's the nature of my

10:56:01 15 objection, Judge.

10:56:02 16 THE COURT: All right. Well, good.

10:56:05 17 Without that, in fact, he had. You asked her if

10:56:10 18 she knew as far as the patient was concerned,

10:56:13 19 and then you posed it to her as he had -- that

10:56:18 20 he had.

10:56:20 21 Q Were you concerned before ruling out Lyme

10:56:25 22 disease in Mr. Hanania's case that if you were wrong about

10:56:31 23 your cellulitis diagnosis, and Mr. Hanania had Lyme

10:56:36 24 disease, that he would go onto develop disseminated

10:56:40 25 disease?



VC





1 Kobel - Plaintiff - Direct 363

10:56:41 2 MR. LEWIS: Objection.

10:56:41 3 THE COURT: That I'll allow. I'll allow it.

10:56:43 4 A Was I concerned that he would go onto -- no.

10:57:03 5 Q Would you agree that you knew, before you saw

10:57:10 6 Mr. Hanania, that when a patient presents with a rash that

10:57:14 7 has many of the signs and symptoms of a Lyme rash, and

10:57:22 8 that patient comes from an area that is endemic for deer

10:57:27 9 ticks that are -- that can be infected with Lyme disease,

10:57:30 10 and it's in the late spring or early summer, that you need

10:57:35 11 to have a high index of suspicion that the patient has

10:57:39 12 Lyme disease?

10:57:41 13 A Yes.

10:57:41 14 Q You knew that before you saw Mr. Hanania?

10:57:43 15 A Yes.

10:57:45 16 Q Did you, in fact, have a high index of suspicion

10:57:48 17 that Mr. Hanania had Lyme disease when you saw him and

10:57:52 18 prior to ruling out Lyme disease as a diagnosis?

10:57:55 19 A Did I have a high index of suspicion? No.

10:58:04 20 Q You knew Mr. Hanania had an erythematous rash;

10:58:08 21 is that correct?

10:58:10 22 A Yes.

10:58:10 23 Q You knew that it was tender?

10:58:13 24 A Yes.

10:58:14 25 Q And itchy?



VC





1 Kobel - Plaintiff - Direct 364

10:58:15 2 A Yes.

10:58:17 3 Q You knew that it had a central punctate which

10:58:25 4 was consistent with a possible tick bite?

10:58:25 5 A Yes.

10:58:25 6 Q You knew all those things were consistent with a

10:58:27 7 Lyme rash; correct?

10:58:28 8 A Yes, they could be.

10:58:29 9 Q And you knew that he lived in an endemic area

10:58:31 10 and was coming in to see you in the first week of June;

10:58:34 11 correct?

10:58:35 12 A Yes.

10:58:35 13 Q But you did not have a high index of suspicion

10:58:37 14 of Lyme disease in his case before you ruled out Lyme

10:58:41 15 disease?

10:58:42 16 MR. LEWIS: Objection to the

10:58:42 17 characterization.

10:58:44 18 THE COURT: No. No. Can you answer that?

10:58:53 19 A No, I didn't have a high index of suspicion.

10:59:10 20 Q Prior to seeing Mr. Hanania, did you have

10:59:15 21 knowledge of what the standard length of treatment is for

10:59:19 22 first stage Lyme disease, with an appropriate oral

10:59:21 23 antibiotic?

10:59:23 24 A Yes.

10:59:24 25 Q And what was your understanding of the standard



VC





1 Kobel - Plaintiff - Direct 365

10:59:29 2 length of treatment?

10:59:31 3 A I believe it was two weeks.

10:59:32 4 Q Minimum of two weeks?

10:59:34 5 A Yes.

10:59:34 6 Q And did you know that some doctors would treat

10:59:36 7 as long as four weeks?

10:59:37 8 A Yes.

10:59:39 9 Q So there was a range of acceptable length of

10:59:41 10 treatment that you were aware of at that time --

10:59:43 11 A Yes.

10:59:44 12 Q -- when you saw Mr. Hanania?

10:59:46 13 A Yes.

10:59:49 14 Q Now, would I be correct that you did not note

10:59:52 15 anything in the 6/3/94 chart entry, when you saw Mr.

10:59:56 16 Hanania, about him telling you he was on a trip to a

11:00:00 17 wooded area in Upstate New York before he saw you; is that

11:00:04 18 correct?

11:00:05 19 A Yes.

11:00:05 20 Q And, would I be correct that, in fact, you claim

11:00:08 21 he never told you about that; is that right?

11:00:11 22 A Yes.

11:00:13 23 Q But would I also be correct, ma'am, that for

11:00:16 24 purposes of whether or not you thought Lyme disease was an

11:00:20 25 appropriate diagnosis when you saw Mr. Hanania, whether or



VC





1 Kobel - Plaintiff - Direct 366

11:00:24 2 not you remember him telling you that, or whether or not

11:00:27 3 he told you about his trip to upstate really didn't impact

11:00:30 4 on your decision to rule out Lyme disease; correct?

11:00:35 5 A No. If he had told me that he -- say that

11:00:38 6 again? If --

11:00:41 7 MR. MAURER: Could the reporter read it

11:00:43 8 back, please?

11:00:44 9 THE COURT: Yes, all right.

11:01:10 10 (Whereupon the reporter read back the last question.)

11:01:10 11 A Had he told me that it -- it would have made a

11:01:15 12 difference.

11:01:15 13 Q Why?

11:01:16 14 A Because it raises an index of suspicion, so it's

11:01:20 15 something that I would have written down.

11:01:23 16 Q I thought I understood you to testify a moment

11:01:26 17 ago that if --

11:01:30 18 THE COURT: Okay.

11:01:30 19 MR. MAURER: Withdrawn.

11:01:54 20 Q Did you know prior to the time you saw Mr.

11:01:56 21 Hanania that if you give someone an antibiotic which is

11:02:01 22 not the appropriate antibiotic for a specific infection,

11:02:05 23 that it can still reduce the symptoms of the infection for

11:02:08 24 a period of time?

11:02:12 25 A If I give the wrong antibiotic for infection



VC





1 Kobel - Plaintiff - Direct 367

11:02:15 2 that it can reduce the symptoms of the infection?

11:02:18 3 Q Yes, for a period of time, though not

11:02:20 4 necessarily cure the infection. Did you know that?

11:02:27 5 A I can't think of an instance where -- oh, well,

11:02:30 6 something might be partially, yes; something might

11:02:33 7 partially respond to -- to an antibiotic but not be cured,

11:02:39 8 yes.

11:02:39 9 Q And would I -- did you know, before you saw Mr.

11:02:41 10 Hanania, that if you treat someone with an antibiotic for

11:02:47 11 less than the appropriate length of time, that it might

11:02:51 12 improve their condition, but allow the condition to come

11:02:53 13 back after going off the medication?

11:02:56 14 A Yes.

11:02:59 15 Q And, in fact, prior to seeing Mr. Hanania, you

11:03:02 16 told your patients who you prescribed antibiotics for,

11:03:06 17 "Make sure you finish the entire course of the antibiotic

11:03:10 18 I'm giving you," correct?

11:03:12 19 A Yes.

11:03:17 20 Q And, would you agree that giving Mr. Hanania an

11:03:21 21 antibiotic of any type, whether it be Duricef or

11:03:25 22 penicillin, for only seven days, would not be considered a

11:03:28 23 sufficient length of time to treat first stage Lyme

11:03:31 24 disease?

11:03:32 25 A Yes.



VC





1 Kobel - Plaintiff - Direct 368

11:03:50 2 Q You had reasons for ruling out Lyme disease in

11:03:53 3 Mr. Hanania's case; correct?

11:03:56 4 A Yes.

11:03:56 5 Q One of them was that there was no history of

11:03:59 6 tick bite that he gave you?

11:04:00 7 A Yes.

11:04:01 8 Q But you did know that -- strike that. Was

11:04:08 9 another reason why you ruled out Lyme disease that he

11:04:12 10 didn't tell you that he had observed the rash that you saw

11:04:15 11 on his body to expand over a period of time?

11:04:19 12 A Yes.

11:04:25 13 Q Was another reason that you said he -- you

11:04:28 14 believed he had no other symptoms of Lyme disease at that

11:04:31 15 time?

11:04:31 16 A Yes.

11:04:34 17 Q And was another reason that you thought the rash

11:04:36 18 was smaller than what you would usually see in a typical

11:04:40 19 Lyme rash?

11:04:42 20 A Yes.

11:04:47 21 Q And was another reason that you saw no central

11:04:50 22 clearing in the rash?

11:04:52 23 A Yes.

11:04:52 24 Q And was another reason that there was no

11:04:56 25 bull's-eye type appearance?



VC





1 Kobel - Plaintiff - Direct 369

11:04:58 2 A Yes.

11:04:58 3 Q And, was another reason that you believed there

11:05:01 4 was no ringlike formation?

11:05:13 5 A Yes.

11:05:13 6 Q And when you say ringlike formation, what do you

11:05:13 7 mean? Do you mean a rash surrounded by an outer border --

11:05:16 8 A Yes.

11:05:16 9 Q -- that's defined in some way?

11:05:16 10 A Yes.

11:05:18 11 MR. MAURER: May I approach, your Honor?

11:05:20 12 THE COURT: Sure.

11:05:25 13 Q For purposes of my understanding what you mean

11:05:28 14 by ringlike, let me show you the note of Dr. Abemayor on

11:05:32 15 June 4, 1994. Do you see a little above the center of the

11:05:38 16 page a drawing?

11:05:40 17 A Yes.

11:05:41 18 Q And does that show a ringlike area with a

11:05:47 19 circular area, although albeit not perfectly circular?

11:05:52 20 MR. LEWIS: Objection.

11:05:53 21 A That's not my drawing. I can't comment on that.

11:05:56 22 MR. MAURER: Well, your Honor, I'd ask --

11:05:57 23 THE COURT: Well, that's her answer.

11:05:58 24 A I can't comment on whether or not that's

11:06:00 25 ringlike.



VC





1 Kobel - Plaintiff - Direct 370

11:06:02 2 MR. LEWIS: Judge, I'll object.

11:06:03 3 THE COURT: Well, I'll overrule the

11:06:04 4 objection, but if that's your answer, that's

11:06:06 5 your answer.

11:06:07 6 A I can't. It's not my drawing.

11:07:01 7 Q With regard to the Lyme rash, the erythema or

11:07:08 8 red area, do all Lyme rashes have more than one ring?

11:07:17 9 A No.

11:07:20 10 Q Have you ever told anyone prior to taking the

11:07:23 11 stand today that a Lyme rash usually has more than one

11:07:29 12 ring?

11:07:34 13 A Not that I remember.

11:07:57 14 Q Do you recall at your deposition before trial at

11:08:00 15 page 98 -- do you recall my asking you this question and

11:08:16 16 you giving this response? "Question, when asking you

11:08:18 17 about what you mean by a ringlike formation when referring

11:08:22 18 to a Lyme rash, what do you mean? You have told me that

11:08:26 19 it doesn't have to be circular. Do you mean anything else

11:08:28 20 by that, when making reference to ringlike?

11:08:31 21 Answer, there is usually -- let me see how I can

11:08:35 22 describe this. A ring of erythema central, more than just

11:08:39 23 one ring, so that there is not just a single area of

11:08:42 24 erythema." Does that refresh your recollection as to

11:08:46 25 whether or not you ever have said before today that



VC





1 Kobel - Plaintiff - Direct 371

11:08:48 2 there's more than one ring area with a Lyme rash,

11:08:52 3 typically?

11:08:53 4 THE COURT: I'll allow it. I'll allow it.

11:08:55 5 Yes. You can answer that.

11:08:57 6 A What I was describing was not more than one

11:08:59 7 ring. We were talking about what we said before, the ring

11:09:01 8 around the central area, so you have the area of erythema

11:09:06 9 and then the ring around it.

11:09:15 10 Q Did Mr. Hanania ever tell you that he was

11:09:18 11 concerned in any way about the possibility that he might

11:09:22 12 have Lyme disease when he saw you on 6/3?

11:09:27 13 A I have no recollection of that.

11:09:30 14 Q Fair to say that you don't recall it, but it's

11:09:34 15 possible it happened?

11:09:49 16 A Not likely.

11:09:52 17 Q Are you certain he didn't tell you --

11:09:55 18 MR. LEWIS: Objection, Judge.

11:09:56 19 A No.

11:09:57 20 THE COURT: No, I'll allow it. There are

11:09:59 21 degrees of --

11:10:01 22 A No. Generally if somebody had a question and --

11:10:07 23 about my diagnosis, and if I could explain why I made a

11:10:12 24 diagnosis that I did and the patient was comfortable with

11:10:15 25 it, that was the end of it. If the patient was not



VC





1 Kobel - Plaintiff - Direct 372

11:10:18 2 comfortable with what I was diagnosing, then I would call

11:10:22 3 a physician in.

11:10:25 4 MR. MAURER: Your Honor, I have to move to

11:10:26 5 strike this as not responsive to the question,

11:10:28 6 "Are you certain".

11:10:29 7 THE COURT: Yes. All right.

11:10:30 8 MR. MAURER: And I would ask that the

11:10:31 9 balance be stricken as not responsive.

11:10:35 10 MR. LEWIS: Judge it's my position I think

11:10:37 11 the question was ambiguous and the answer was

11:10:40 12 responsive to an ambiguous question.

11:10:45 13 THE COURT: Well, to some degree I would

11:10:47 14 agree with that.

11:11:06 15 Q At your deposition, page 99, do you recall my

11:11:14 16 asking you these two questions and your giving these

11:11:16 17 responses? Line 14. "Question, if you recall, did Mr.

11:11:22 18 Hanania ask you about the possibility of him having Lyme

11:11:27 19 disease at this examination?

11:11:28 20 Answer, no.

11:11:30 21 Question, are you 100 percent certain that he

11:11:33 22 did not ask you about that?

11:11:35 23 Answer, yes." Do you recall giving those

11:11:39 24 answers to those questions, ma'am?

11:11:42 25 A Not specifically, no, I don't remember.



VC





1 Kobel - Plaintiff - Direct 373

11:11:44 2 Q Well, when you gave those answers and said you

11:11:48 3 were a hundred percent certain, were you telling the

11:11:52 4 truth?

11:11:53 5 A Yes.

11:11:54 6 Q Okay. And when you said now a moment ago that

11:11:57 7 you weren't 100 percent certain, were you telling the

11:11:59 8 truth?

11:12:03 9 A It's the circumstance. They're not yes and no

11:12:06 10 answers. If you say if he --

11:12:12 11 MR. MAURER: Your Honor, I move to strike

11:12:13 12 as not responsive. That's a yes or no answer.

11:12:15 13 THE COURT: Well, I don't think it's

11:12:17 14 necessarily yes or no. I'll allow it. Go

15 ahead.

11:12:23 16 A If we're talking about where there's a

11:12:26 17 discussion between myself and a patient and the patient is

11:12:31 18 questioning the diagnosis that is made, okay, or like I

11:12:45 19 said, if it's something that I can reassure the patient,

11:12:45 20 explain my way of thinking and what's going on, then the

11:12:47 21 discussion ends there. So, if you're asking me am I a

11:12:52 22 hundred percent sure, I don't recall the exact situation.

11:12:55 23 If somebody said to me this is what I think is going on,

11:12:57 24 this is what I think I have, if I was able to explain my

11:13:03 25 position, then I would say, yes, I'm a hundred percent



VC





1 Kobel - Plaintiff - Direct 374

11:13:09 2 certain this is what happened, because that's as far as it

11:13:12 3 went. If somebody said to me, "I'm still not happy with

11:13:17 4 this diagnosis," I would have referred to a physician at

11:13:21 5 that point, and, since that didn't happen, that's why I'm

11:13:24 6 saying I can be certain that in this case those were the

11:13:29 7 circumstances.

11:13:30 8 Q Do you recall Mr. Hanania asking you if you were

11:13:33 9 sure that Duricef was a good medication to treat his

11:13:37 10 condition?

11:13:38 11 A No.

11:13:39 12 Q Are you saying he didn't ask you or are you

11:13:41 13 saying you just don't recall?

11:13:42 14 A I don't recall.

11:13:58 15 Q I just want to make sure I ask this question.

11:14:00 16 If I'm repeating, I apologize to the Court and witness.

11:14:04 17 Prior to seeing Mr. Hanania, generally speaking, did you

11:14:11 18 know that if you treated first-stage Lyme disease with an

11:14:15 19 appropriate antibiotic for an appropriate period of time

11:14:19 20 it was likely the patient would not go onto develop

11:14:22 21 meningitis?

11:14:24 22 A Yes.

11:14:24 23 Q And did you also know under the same

11:14:26 24 circumstances that the patient would not go on, in all

11:14:29 25 likelihood, to develop a facial paralysis?



VC





1 Kobel - Plaintiff - Cross 375

11:14:34 2 A Yes.

11:14:43 3 MR. MAURER: I think I'm done. Just one

11:14:45 4 moment, Judge.

11:14:45 5 THE COURT: Good timing, because I was

11:14:47 6 going to take a break right now, so --

11:14:49 7 MR. MAURER: Okay. Then I'll check during

11:14:52 8 the break.

11:14:52 9 THE COURT: All right. Members of the

11:14:52 10 jury, do not discuss the case among yourselves

11:14:54 11 or with anyone else. Have a good break.

11:15:11 12 (The following takes place out of the presence of the jury.)

11:15:13 13 MR. LEWIS: May we approach, Judge?

11:15:23 14 THE COURT: Yes, please. You can step

11:15:48 15 down.

11:15:57 16 (Whereupon there was a recess.)

11:28:05 17 (The following takes place in the presence of the jury.)

11:28:08 18 THE CLERK: The witness is reminded she's

11:28:10 19 still under oath.

11:28:11 20 MR. MAURER: I have no further questions on

11:28:12 21 direct examination of the witness, Judge.

11:28:14 22 MR. LEWIS: May I, Judge.

11:28:15 23 THE COURT: Yes, surely.

24 CROSS-EXAMINATION

11:28:17 25 BY MR. LEWIS:



VC





1 Kobel - Plaintiff - Cross 376

11:28:18 2 Q Are you having a lot of fun up there?

11:28:20 3 A Oh, the time of my life.

11:28:22 4 Q Have you ever done this before?

11:28:23 5 A No.

11:28:25 6 Q Okay. Let me ask you some background questions,

11:28:28 7 just for clarification. Where have you grown up and where

11:28:33 8 have you lived most of your life?

11:28:35 9 A Except for the two years in Wichita, Long

11:28:38 10 Island.

11:28:41 11 Q Do you expose yourself in this endemic area to

11:28:45 12 insect bites, tick bites?

11:28:47 13 A Oh, yes, yes. I spend a lot of time in the

11:28:50 14 outdoors. I canoe and backpack.

11:28:55 15 Q Were you aware of the health concerns posed by

11:29:00 16 tick bites leading to Lyme disease prior to when you saw

11:29:04 17 Mr. Hanania --

11:29:06 18 A Sure.

11:29:06 19 Q -- in June?

11:29:07 20 A Yes.

11:29:07 21 Q You mentioned that you were an EMT. Just for

11:29:10 22 purposes of the record, what is an EMT? I'm sure most of

11:29:15 23 the jury knows.

11:29:17 24 A It stands for emergency medical technician.

11:29:20 25 It's -- it's basically trained to take care of emergencies



VC





1 Kobel - Plaintiff - Cross 377

11:29:26 2 in the field at a level around like a first aid basis kind

11:29:32 3 of thing.

11:29:33 4 Q You also worked as a medical assistant?

11:29:36 5 A Yes.

11:29:37 6 Q You worked as an emergency medical technician

11:29:40 7 and as a medical assistant. What were you aspiring to do

11:29:44 8 during this period of time?

11:29:46 9 A Well, to get into the PA programs you have to

11:29:48 10 have prior experience in the medical field, and it could

11:29:52 11 be a wide variety. You could have been a nurse before,

11:29:57 12 you could have been a medic, an Xray tech. It could have

11:30:04 13 been a lot of different things, and they generally tend to

11:30:07 14 pick classes that are molded of people that are from

11:30:09 15 different areas so the class, as a whole, has experience

11:30:13 16 in a wide variety of areas.

11:30:16 17 Q Would you tell the members of the jury and Judge

11:30:18 18 Levitt a little bit about how the profession of a

11:30:23 19 physician's assistant developed?

11:30:27 20 A It basically came in this country -- anyway, I

11:30:31 21 believe the Chinese had something called barefoot doctors

11:30:34 22 about 2,000 years ago or something. In this country it

11:30:37 23 kind of sprung from the Vietnam war. There were a lot of

11:30:41 24 soldiers getting injured that were surviving wounds that

11:30:44 25 in other wars were not survivable, and there was a



VC





1 Kobel - Plaintiff - Cross 378

11:30:48 2 shortage of doctors to take care of these people, so they

11:30:51 3 found that if they took the medics, people that had been

11:30:54 4 trained to a certain extent, and gave them additional

11:30:57 5 training, that these people could take care of a lot of

11:31:01 6 the problems that previously had been just solely

11:31:10 7 dependent on doctors to take care of. When the war was

11:31:10 8 over or possibly during that time, I know Duke University

11:31:15 9 had been looking into starting programs with the same

11:31:17 10 idea. Well, if we have people that already have a

11:31:20 11 background in the health field and have basic science

11:31:24 12 knowledge, whatever, and then give them more training,

11:31:27 13 possibly we could deal with some of the physician

11:31:32 14 shortages. In other words, where areas where you don't

11:31:35 15 find a lot of doctors, rural areas, intercity areas, et

11:31:40 16 cetera, like that. And that's what they started doing.

11:31:43 17 They -- I think they first started the program in, I think

11:31:48 18 it was like '69 or somewhere around there, early '70's. I

11:31:53 19 don't remember the exact year.

11:31:55 20 Q Okay. You graduated from Wichita's PA program?

11:31:59 21 A Yes.

11:32:00 22 Q Is there a certification process in which

11:32:03 23 physician's assistants become certified?

11:32:07 24 A Yes.

11:32:07 25 Q Tell the jury and Judge Levitt a little bit



VC





1 Kobel - Plaintiff - Cross 379

11:32:10 2 about that process, and how you became certified in this

11:32:13 3 field?

11:32:13 4 A There's a national exam that you can take,

11:32:18 5 not -- I don't think every state requires it at this

11:32:21 6 point, some states leave it up to the employer if they

11:32:23 7 want their PA to be nationally certified, but there's an

11:32:27 8 exam you can take upon completion of the program which is

11:32:30 9 now closed to people that have gone to PA programs. It

11:32:34 10 used to be years ago you could challenge the exam, which

11:32:40 11 actually made it tougher now, because the bell curve is

11:32:43 12 all -- everybody taking the test has been trained in PA

11:32:46 13 programs. Then if you pass, you have to retest every six

11:32:51 14 years to keep your national certification current.

11:32:55 15 There's also the registry within the state that requires

11:32:59 16 that every two years you take 100 hours of continuing

11:33:03 17 medical education credits.

11:33:05 18 Q Okay. Did you pass the national certification

11:33:08 19 examination?

11:33:09 20 A Yes.

11:33:10 21 Q Prior to June of 1994, had you been recertified

11:33:14 22 by the national boards?

11:33:16 23 A Yes, I think once already.

11:33:18 24 Q Okay. After you graduated from the PA program,

11:33:24 25 you told us that you worked at Hempstead Hospital?



VC





1 Kobel - Plaintiff - Cross 380

11:33:28 2 A Yes.

11:33:29 3 Q What were your duties at Hempstead Hospital?

11:33:33 4 A Initially I worked part time in the emergency

11:33:37 5 room and part time in working as house staff up on the

11:33:42 6 floors, and within a few months the emergency room

11:33:45 7 position became full time, and that's where I was. My

11:33:48 8 duties were basically to evaluate anybody who came in

11:33:54 9 through the door. On duty, during the hours that I

11:33:58 10 worked, there was one physician in the emergency room and

11:34:01 11 myself, and we pretty much took the charts as they came

11:34:05 12 up, you know. Whoever was next I would see or that doctor

11:34:08 13 would see.

11:34:10 14 Q You came to CHP in 1992?

11:34:15 15 A Yes.

11:34:15 16 Q And, from the time you first became a PA working

11:34:19 17 in the emergency room up until June, 1994, while you were

11:34:24 18 working at CHP, did you have the opportunity to see

11:34:27 19 patients who came in with rashes?

11:34:30 20 A Yes.

11:34:31 21 Q I know it's difficult to approximate, but was

11:34:34 22 that a rare event?

11:34:36 23 A No, no.

11:34:36 24 Q With what frequency did you see people with

11:34:39 25 rashes?



VC





1 Kobel - Plaintiff - Cross 381

11:34:41 2 A Oh, several times a day, I would have to say.

11:34:46 3 Q What's the incidence in terms of all the rashes

11:34:49 4 that you would see, of patients presenting with rashes

11:34:52 5 that are subsequently diagnosed with Lyme disease? How

11:34:55 6 common is the Lyme disease rash?

11:34:57 7 A In my experience or --

11:34:59 8 THE COURT: I'll allow it.

11:35:00 9 MR. MAURER: Objection just as to the

11:35:02 10 breadth. Are we talking about geographically on

11:35:04 11 Long Island?

11:35:05 12 MR. LEWIS: I'm talking in terms of the

11:35:06 13 witness' own experience.

11:35:11 14 A In my experience how many of the rashes were

11:35:14 15 Lyme disease rashes?

11:35:17 16 Q Yes, that you saw?

11:35:18 17 A Well, I can say I saw hundreds of rashes and a

11:35:21 18 handful of Lyme rashes. Thousands of rashes.

11:35:25 19 Q Can we -- we talked about diagnosis and

11:35:29 20 differential diagnosis, but, I want you to address, if you

11:35:34 21 can, and describe what that process entails in terms of

11:35:42 22 judgment reasoning. Could you give us some insights into

11:35:48 23 you as a PA, what's the process of making a differential

11:35:54 24 diagnosis and then making a diagnosis in the context of

11:35:56 25 treating a particular individual?



VC





1 Kobel - Plaintiff - Cross 382

11:36:00 2 A When a patient presents to you with symptoms,

11:36:03 3 you start -- and you start to look at the symptoms, you

11:36:06 4 look at the history, and you go through the process of

11:36:11 5 what all things can have those history elements and

11:36:16 6 physical exam elements, which ones have some of them,

11:36:22 7 which ones have all of them, which ones are more likely to

11:36:24 8 have them, which ones are less likely to have them, and

11:36:27 9 then you start the process of elimination, process of

11:36:30 10 index of suspicion, process of probability versus

11:36:34 11 possibility, and all these things.

11:36:45 12 Q Okay. From -- is the differential diagnosis,

11:36:45 13 then, a consideration of --

11:36:45 14 MR. MAURER: Objection to form.

11:36:46 15 THE COURT: To the form "is the," I'll

11:36:52 16 sustain the objection.

11:36:53 17 MR. LEWIS: Okay.

11:36:55 18 Q Let me just give you the original CHP records,

11:36:58 19 if I may. Prior to June 3, 1994, were you aware of what

11:37:21 20 the Center for Disease Control's definition was for the

11:37:25 21 diagnosis of the rash of erythema migrans?

11:37:29 22 MR. MAURER: Objection. It's leading.

11:37:31 23 THE COURT: No, no. I'll allow it. I'll

11:37:33 24 allow it. Of what it was is still an open

11:37:37 25 question. I don't think it is --



VC





1 Kobel - Plaintiff - Cross 383

11:37:38 2 MR. MAURER: I'm objecting, your Honor.

11:37:42 3 Suggestive that there was such a diagnosis

11:37:44 4 criteria.

11:37:45 5 MR. LEWIS: We've had testimony from Dr.

11:37:47 6 Dattwyler what it was.

11:37:48 7 MR. MAURER: But not with this witness,

11:37:49 8 your Honor. That's why I'm objecting.

11:37:51 9 MR. LEWIS: I'm asking her if she's aware

11:37:53 10 of what it was.

11:37:55 11 MR. MAURER: I'll withdraw it.

11:37:56 12 A Yes.

11:37:57 13 Q What was it?

11:38:02 14 A It was a rash that was considered to be erythema

11:38:06 15 migrans, which was considered to be a rash that was five

11:38:09 16 centimeters or larger, typically expanding, central

11:38:19 17 clearing, erythematous.

11:38:25 18 Q Okay. When -- let's go specifically to June 3,

11:38:28 19 1994. What was significant about -- withdrawn. When you

11:38:40 20 first saw this rash, what differential diagnosis were you

11:38:46 21 considering with regard to Mr. Hanania?

11:38:52 22 A What was in the differential diagnosis?

11:38:54 23 Q Yes.

11:38:55 24 A Things like infected insect bites, Lyme was in

11:39:00 25 the differential, a possible abscess, folliculitis, things



VC





1 Kobel - Plaintiff - Cross 384

11:39:09 2 like that.

11:39:13 3 Q How did you -- you made a diagnosis, though?

11:39:15 4 What was your diagnosis?

11:39:18 5 A Possible insect bite with cellulitis.

11:39:21 6 Q Okay. Your diagnosis was cellulitis?

11:39:26 7 A Yes.

11:39:26 8 Q Arising from a possible insect bite?

11:39:28 9 A Correct.

11:39:30 10 Q What was your reasoning process to eliminate the

11:39:36 11 possibility of Lyme disease on June 3, 1994?

11:39:43 12 A Because, weighing all the symptoms, these

11:39:47 13 symptoms were all more typical, in my experience, of

11:39:53 14 rashes that presented that were cellulitis. Hundreds and

11:39:57 15 hundreds of rashes that I saw that looked like this were

11:40:00 16 cellulitis and not typical of what I've seen to be Lyme

11:40:04 17 disease.

11:40:04 18 Q Did you find tenderness by history and

11:40:07 19 examination on June 3?

11:40:09 20 A Yes.

11:40:10 21 Q Is tenderness more probably seen in cellulitis

11:40:13 22 or Lyme disease?

11:40:15 23 A More probably in cellulitis.

11:40:17 24 Q Is -- did you find itchiness on June 3?

11:40:21 25 A Yes.



VC





1 Kobel - Plaintiff - Cross 385

11:40:21 2 Q Is itchiness more probably seen in cellulitis or

11:40:25 3 Lyme disease?

11:40:26 4 A More in cellulitis.

11:40:27 5 Q Did you find hardness or induration on June 3?

11:40:31 6 A Yes.

11:40:32 7 Q Is hardness or induration more probably seen in

11:40:37 8 cellulitis or Lyme disease?

11:40:40 9 A Probably more in cellulitis.

11:40:46 10 Q What is the characteristic rash of Lyme disease?

11:40:54 11 A The characteristic erythema migrans rash?

11:40:58 12 Q Yes, the classic rash of Lyme disease?

11:41:01 13 A Okay. What I described before, which was the,

11:41:04 14 you know, the five-centimeter, erythematous, central

11:41:10 15 clearing, expanding.

11:41:11 16 Q There's been a concern about bull's-eye that you

11:41:14 17 were asked before?

11:41:14 18 A Right with the ring, yes, with like a central

11:41:18 19 erythema and then the area of clearing and then the

11:41:22 20 erythema around it, so it takes on what they call a

11:41:25 21 bull's-eye appearance.

11:41:26 22 Q Did the rash that Alony Hanania presented on

11:41:33 23 June 3, 1994, was it a rash of a bull's-eye with central

11:41:41 24 clearing?

11:41:43 25 A No.



VC





1 Kobel - Plaintiff - Cross 386

11:41:43 2 Q Was its size greater than five centimeters?

11:41:48 3 A No.

11:41:48 4 Q Whatever the size that you estimated to be?

11:41:52 5 A Three centimeters.

11:41:55 6 Q Was there a ringlike formation?

11:41:58 7 A No.

11:42:01 8 Q Did Mr. Hanania give you a history of expansion?

11:42:05 9 A No.

11:42:08 10 Q Why didn't you diagnose Lyme disease rather than

11:42:10 11 cellulitis?

11:42:13 12 A Because when you hear hoofbeats you look for

11:42:16 13 horses, and if it doesn't --

11:42:18 14 MR. MAURER: I can't hear the witness.

11:42:19 15 THE COURT: You want to repeat --

11:42:21 16 A I said if you hear hoofbeats you look for

11:42:24 17 horses. That's more likely what it's going to be, not

11:42:28 18 zebras, and that's pretty much the logic behind that.

11:42:31 19 It's -- again, it comes down to differential diagnosis,

11:42:36 20 what's more probable.

11:42:40 21 Q On June 3, 1994, what was more probable,

11:42:43 22 cellulitis or Lyme disease?

11:42:44 23 A Cellulitis.

11:42:46 24 Q How do you treat cellulitis?

11:42:47 25 A Duricef.



VC





1 Kobel - Plaintiff - Cross 387

11:42:48 2 Q Were you using Duricef to treat Lyme disease?

11:42:52 3 A No.

11:42:52 4 Q Or a suspicion of Lyme disease?

11:43:03 5 A No.

11:43:03 6 Q Was your consideration based upon this --

11:43:03 7 MR. MAURER: Objection.

11:43:03 8 MR. LEWIS: Withdrawn.

11:43:03 9 Q Was this presentation, after your physical

11:43:05 10 examination, equally weighted between Lyme disease and

11:43:08 11 cellulitis?

11:43:10 12 A No.

11:43:29 13 Q You weren't asked this, but did you give

11:43:32 14 instructions to Mr. Hanania?

11:43:34 15 A Yes.

11:43:36 16 Q What instructions?

11:43:39 17 A To put warm soaks four times a day on the area,

11:43:44 18 to take the Duricef twice a day for seven days and to

11:43:47 19 follow-up if there was any fluctuation or if there was any

11:43:52 20 changes in the symptoms.

11:43:55 21 Q Why do you instruct a patient to follow-up, if

11:44:00 22 there's any change?

11:44:03 23 A Well, because it could mean that there's a

11:44:05 24 treatment failure. If there's a change a lot of times,

11:44:09 25 especially with skin rashes, skin rashes are notorious for



VC





1 Kobel - Plaintiff - Cross 388

11:44:14 2 changing over time, and if it presents like one thing on

11:44:18 3 one day, if you see it again in two, three days and it

11:44:21 4 looks different, you may want to change your treatment,

11:44:24 5 you may want to change your diagnosis.

11:44:27 6 Q Would you want to change your antibiotic, too?

11:44:30 7 A Sure, if you need to.

11:44:50 8 Q What's the health consequences of -- what's

11:44:52 9 cellulitis and the health consequences of untreated

11:44:56 10 cellulitis?

11:44:59 11 A If cellulitis is not treated, what can happen is

11:45:04 12 the bacteria, whatever, causing the infection, can start

11:45:08 13 to drain into the lymphatics. If -- it can go deep into

11:45:13 14 the deep tissues of the area, travel systemically into the

11:45:18 15 bloodstream. For some people with severe health problems

11:45:26 16 that could be a real big problem, for people with heart

11:45:29 17 valve problems, if they have bacteria seeded in the

11:45:33 18 bloodstream it could be devastated, with prosthesis, you

11:45:36 19 know, joint prothesis, things like that.

11:45:41 20 Q The bacteria that causes a cellulitis infection,

11:45:45 21 is that the same bacteria that causes a Lyme infection?

11:45:49 22 A No.

11:45:50 23 Q Is Augmentin a first-choice antibiotic for the

11:45:55 24 treatment of cellulitis?

11:45:57 25 A No.



VC





1 Kobel - Plaintiff - Cross 389

11:45:57 2 Q Is Duricef a first choice antibiotic for the

11:46:02 3 treatment of cellulitis?

11:46:03 4 A Yes.

11:46:03 5 Q When Mr. Hanania was leaving CHP on June 3,

11:46:07 6 1994, and leaving it with your instructions, did you

11:46:14 7 think --

11:46:15 8 MR. MAURER: Objection.

11:46:16 9 THE COURT: Yes. What she thought. I'll

11:46:18 10 sustain.

11:46:20 11 Q Was it your concern that he had --

11:46:21 12 MR. MAURER: Objection.

11:46:22 13 THE COURT: Concern is a different matter,

11:46:22 14 okay.

11:46:23 15 MR. LEWIS: This is what was brought --

11:46:24 16 it's the same --

11:46:26 17 THE COURT: All right, your concern. I'll

11:46:28 18 allow it.

11:46:29 19 Q -- that he might possibly have Lyme disease?

11:46:32 20 A That was not my concern in his treatment, no.

11:46:34 21 Q What were you concerned that he had when he

11:46:36 22 left?

11:46:37 23 A I was concerned that he had cellulitis.

11:46:39 24 MR. LEWIS: No further questions.

11:46:40 25 MR. MAURER: Thank you.



VC





1 Kobel - Plaintiff - Redirect 390

2 REDIRECT EXAMINATION

11:46:53 3 BY MR. MAURER:

11:46:54 4 Q Isn't it true that the first time you became

11:46:57 5 aware of a Lyme rash having any definition that included

11:47:03 6 the size of at least five centimeters was when your

11:47:07 7 attorney showed you an article written by Dr. Raymond

11:47:11 8 Dattwyler from Stony Brook?

11:47:13 9 A No.

11:47:17 10 Q You were asked about the Center for Disease

11:47:20 11 Control's surveillance criteria?

11:47:23 12 A Yes.

11:47:24 13 Q Isn't it true you never heard of that before

11:47:26 14 this lawsuit?

11:47:28 15 A No.

11:47:32 16 Q Isn't it true that the Center for Disease

11:47:36 17 Control's surveillance criteria is not intended to be used

11:47:40 18 for making decisions on whether or not to diagnose a

11:47:45 19 condition?

11:47:46 20 A I think it's purpose is more for reporting.

11:47:51 21 Q Am I correct in what I said, therefore, that

11:47:53 22 it's meant for purposes of getting accurate counts of

11:47:57 23 reported cases of illnesses, and not for the purpose of

11:48:01 24 ruling in or ruling out as a proper diagnosis a specific

11:48:05 25 condition?



VC





1 Kobel - Plaintiff - Redirect 391

11:48:05 2 MR. LEWIS: Objection.

11:48:06 3 Q Isn't that correct?

11:48:07 4 THE COURT: I'll allow it.

11:48:09 5 A Yes.

11:48:11 6 Q So whether or not the Center for Disease Control

11:48:14 7 says that a Lyme rash has at least five centimeters in

11:48:18 8 size, you understood that that specific criteria should

11:48:22 9 not be used to decide that a patient does or does not have

11:48:26 10 a Lyme rash; correct?

11:48:32 11 A It's -- that it should not be used?

11:48:36 12 Q Didn't you know before you saw Mr. Hanania that

11:48:39 13 you shouldn't use the CDC surveillance criteria with

11:48:43 14 regard to Lyme disease diagnosis as a basis for ruling out

11:48:48 15 Lyme disease in a patient?

11:48:50 16 A It's still part of the basis of ruling in or

11:48:52 17 out -- the description of the rash is still a basis of

11:48:55 18 ruling in or out Lyme disease.

11:48:57 19 Q But didn't you know that the five-centimeter

11:48:59 20 size that's included in the surveillance criteria is not

11:49:02 21 supposed to be used as a basis for ruling out a patient

11:49:07 22 having Lyme disease, and that it's supposed to be used to

11:49:18 23 get a definitive case, this case is a hundred percent

11:49:18 24 certain we have Lyme here, for getting accurate counts in

11:49:18 25 the country of Lyme cases?



VC





1 Kobel - Plaintiff - Redirect 392

11:49:18 2 MR. LEWIS: Objection.

11:49:20 3 Q Didn't you know that?

11:49:20 4 THE COURT: If she knows. If she knows.

11:49:22 5 Do you?

11:49:24 6 A Yes. It's used for reporting.

11:49:31 7 Q When you saw Mr. Hanania on June 3, 1994 and did

11:49:35 8 your evaluation and made your decision on an appropriate

11:49:38 9 diagnosis and treatment, what harm, if any, were you aware

11:49:43 10 of that you might cause if you treated Mr. Hanania with

11:49:49 11 Augmentin instead of Duricef?

11:49:53 12 A Was I aware of any harm?

11:49:55 13 Q Yes.

11:49:58 14 A Harm in the sense that when I was treating

11:50:00 15 cellulitis, it wasn't used firsthand, because it causes a

11:50:03 16 lot of GI upset in a lot of people, a lot of diarrhea.

11:50:07 17 That's why we don't use it first line.

11:50:10 18 Q When I asked you earlier and your counsel asked

11:50:12 19 you earlier about your reasons for not diagnosing Lyme

11:50:15 20 disease, you mentioned nothing about diarrhea; correct?

11:50:18 21 MR. LEWIS: Objection.

11:50:19 22 THE COURT: Yes, all right. That's a

11:50:21 23 statement, not a question.

11:50:24 24 Q There are things you can do when prescribing

11:50:26 25 medication that can cause stomach upset to limit the



VC





1 Kobel - Plaintiff - Redirect 393

11:50:29 2 stomach upset, right?

11:50:31 3 A Sometimes.

11:50:32 4 Q And you knew that back when you saw Mr. Hanania;

11:50:34 5 correct?

11:50:35 6 A Yes.

11:50:45 7 Q So, you said one of the reasons why you didn't

11:50:49 8 diagnose Mr. Hanania with Lyme disease was because there

11:50:52 9 was no history of the rash expanding; correct?

11:50:55 10 A That's one of the reasons, yes.

11:50:57 11 Q And that information you would have considered

11:50:58 12 to be a significant piece of information, had it been

11:51:01 13 presented to you when ruling in or ruling out Lyme

11:51:04 14 disease; correct?

11:51:05 15 A Yes.

11:51:06 16 MR. MAURER: Nothing further.

11:51:07 17 THE COURT: Yes. Anything?

11:51:10 18 MR. LEWIS: Nothing, Judge.

11:51:12 19 THE COURT: Okay. Thank you very much.

11:51:13 20 You can step down.

11:51:15 21 THE WITNESS: Thank you.

11:51:16 22 MR. MAURER: Thank you.

The Lyme Disease Network of NJ, Inc.
43 Winton Road
East Brunswick, NJ 08816
http://www.lymenet.org/