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 Dr. Christina Jankowski
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU: PART 4
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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
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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









15:35:00 22 MR. MAURER: Your Honor, at this time, I

15:35:03 23 would ask that Dr. Christine Jankowski take the

15:35:07 24 stand.

25 C H R I S T I N E J A N K O W S K I, M. D.,



VC





1 Jankowski - Plaintiff - Direct 466

2 called by Plaintiff, residing at 1 Stewart Avenue,

3 Syosset, New York, was duly sworn and testified as

15:36:15 4 follows:

5 DIRECT EXAMINATION

15:36:23 6 BY MR. MAURER:

15:36:24 7 Q Good afternoon, Doctor.

15:36:26 8 A Good afternoon.

15:36:30 9 Q Before I get into the substance of your

15:36:33 10 testimony dealing with Mr. Hanania, I'd like to ask you

15:36:38 11 some background questions, okay? You attended college for

15:36:44 12 one year and entered a six-year medical school in Warsaw,

15:36:48 13 Poland; is that correct?

15:36:49 14 A Yes.

15:36:51 15 Q And you also served a six-month internship in

15:36:54 16 Poland; is that correct?

15:36:56 17 A Yes.

15:36:57 18 Q And you came -- let's see. In 1985 you returned

15:37:01 19 to the United States for an internship and residency in

15:37:04 20 internal medicine --

15:37:06 21 A Yes.

15:37:07 22 Q -- at Mount Sinai and Elmhurst General Hospital?

15:37:09 23 A Yes.

15:37:10 24 Q And became licensed to practice medicine in New

15:37:13 25 York in 1988?



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1 Jankowski - Plaintiff - Direct 467

15:37:15 2 A Yes.

15:37:17 3 Q And you became board certified in internal

15:37:19 4 medicine in 1994, which was the year you saw Mr. Hanania?

15:37:24 5 A Yes.

15:37:28 6 Q Am I also correct that you attended two or three

15:37:30 7 general medical conferences which touched upon Lyme

15:37:34 8 disease as a subject for probably several hours in total

15:37:37 9 prior to seeing Mr. Hanania?

15:37:39 10 A Yes.

15:37:40 11 Q And, you received some material on Lyme disease

15:37:43 12 that included booklets dealing with the subject of Lyme

15:37:49 13 disease at that time?

15:37:50 14 A Yes.

15:37:58 15 Q Incidentally, at your deposition, do you recall

15:38:01 16 my asking you if you had a copy of any of those booklets?

15:38:06 17 A No, I do not.

15:38:07 18 Q Did you ever look to see if you had any of those

15:38:09 19 Lyme disease booklets or pamphlets?

15:38:11 20 A Yes, yes, I did.

15:38:12 21 Q And did you find any?

15:38:13 22 A No, I did not.

15:38:21 23 Q You don't know if you received any material on

15:38:23 24 Lyme disease in medical school or during your internship

15:38:27 25 in Poland; correct?



VC





1 Jankowski - Plaintiff - Direct 468

15:38:28 2 A I don't recall.

15:38:32 3 Q But you did attend lectures on Lyme disease

15:38:34 4 during your three-year internship and residency at

15:38:37 5 Elmhurst General?

15:38:40 6 A I don't recall specifically, but it was probably

15:38:43 7 part of the curriculum.

15:38:45 8 Q Prior to seeing Mr. Hanania, is it accurate to

15:38:50 9 say that you had diagnosed between one and less than 25

15:38:54 10 people with Lyme disease?

15:38:55 11 A Yes.

15:38:59 12 Q And you reached those diagnoses in those one to

15:39:02 13 less than 25 patients based upon a clinical examination

15:39:06 14 and blood work?

15:39:07 15 A Yes.

15:39:10 16 Q And you didn't make the diagnosis of Lyme

15:39:13 17 disease based solely on a physical examination in any of

15:39:15 18 those instances; is that correct?

15:39:20 19 A Well, yes.

15:39:23 20 Q You had a clinical suspicion of Lyme disease,

15:39:25 21 but you didn't make a firm diagnosis until you had the

15:39:28 22 blood work results; is that correct?

15:39:31 23 A Yes.

15:39:33 24 Q And, when you saw Mr. Hanania, was it your

15:39:37 25 understanding that a differential diagnosis meant that



VC





1 Jankowski - Plaintiff - Direct 469

15:39:39 2 when there are different medical conditions that could

15:39:41 3 have similar presentations, that you have to rule in or

15:39:44 4 rule out the possible medical conditions?

15:39:47 5 A Yes.

15:39:48 6 Q And when making a differential diagnosis, would

15:39:52 7 you make a working diagnosis of one or more possible

15:39:55 8 conditions that may be the appropriate diagnosis?

15:39:58 9 A Yes.

15:40:01 10 Q And you had made working diagnoses of Lyme

15:40:04 11 disease before you saw Mr. Hanania even before you had any

15:40:07 12 test results back; correct?

15:40:10 13 A Yes.

15:40:15 14 Q And you treated patients with antibiotics for

15:40:18 15 Lyme disease without the benefit of a test result only

15:40:25 16 where you had actually removed a tick from the patient and

15:40:28 17 the patient could tell you that the tick had been attached

15:40:32 18 for at least 24 to 48 hours, and this happened prior to

15:40:36 19 Mr. Hanania seeing you?

15:40:38 20 A Yes.

15:40:41 21 Q And before you saw Mr. Hanania, you knew that

15:40:43 22 Lyme disease was an infection spread by a tick that has a

15:40:46 23 spirochete in its gut that got passed into the human

15:40:50 24 patient; is that correct?

15:40:52 25 A Yes.



VC





1 Jankowski - Plaintiff - Direct 470

15:40:53 2 Q And you also knew that there were three stages

15:40:55 3 of Lyme disease before you saw Mr. Hanania?

15:40:58 4 A Yes.

15:41:00 5 Q That a first or acute phase being the one that

15:41:04 6 is most often characterized by a Lyme rash?

15:41:08 7 A Yes.

15:41:09 8 Q And you knew the second stage is characterized

15:41:11 9 by neurological, musculoskeletal, cardiac and skin

15:41:17 10 involvement?

15:41:18 11 A Yes.

15:41:18 12 Q And you also knew that the third stage generally

15:41:21 13 involved the musculoskeletal system, neurological and

15:41:26 14 continuation of cardiac problems from the second stage?

15:41:28 15 A Yes.

15:41:29 16 Q And you also knew, before you saw Mr. Hanania,

15:41:32 17 that a Lyme disease rash generally presented as an

15:41:34 18 erythematous or red rash with central clearing?

15:41:40 19 A Yes.

15:41:49 20 Q And you knew that the rash can vary in

15:41:49 21 appearance?

15:41:49 22 A Yes.

15:41:49 23 Q And you knew that some of the Lyme rashes have

15:41:49 24 rings within rings; is that correct?

15:41:49 25 A Yes.



VC





1 Jankowski - Plaintiff - Direct 471

15:41:51 2 Q And you knew that some rashes have very hard,

15:41:51 3 red centers?

15:41:53 4 A Yes.

15:41:56 5 Q And you also knew, before seeing Mr. Hanania,

15:41:59 6 that not all Lyme rashes have a ring border?

15:42:03 7 A Yes.

15:42:03 8 Q And you knew that some are just -- some of the

15:42:05 9 Lyme rashes are just solid red areas of skin?

15:42:10 10 A Yes.

15:42:11 11 Q And did you also know before seeing Mr. Hanania

15:42:15 12 that the size of a Lyme rash varies from the size of a

15:42:19 13 quarter to several centimeters or more in size?

15:42:24 14 A Yes.

15:42:26 15 Q And before seeing Mr. Hanania, did you know that

15:42:29 16 the presence of a central punctate or hole in the skin

15:42:33 17 from a possible bite can be consistent with a tick bite?

15:42:39 18 A Yes.

15:42:39 19 Q And consistent with the type of bite that can

15:42:42 20 cause someone to contract Lyme disease?

15:42:44 21 A Yes.

15:42:46 22 Q And you also knew, before you saw Mr. Hanania,

15:42:48 23 that the entire New York metropolitan area was an area

15:42:53 24 that was endemic for deer ticks that were infected with

15:42:56 25 the Lyme bacteria?



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1 Jankowski - Plaintiff - Direct 472

15:42:58 2 A Yes.

15:42:59 3 Q And you also knew that the population in an

15:43:02 4 endemic area was at greater risk than in another areas of

15:43:05 5 contracting Lyme disease before you saw Mr. Hanania. You

15:43:09 6 knew that, right?

15:43:10 7 A Yes.

15:43:11 8 Q And is it also true that prior to June 1 or

15:43:15 9 prior to seeing Mr. Hanania, actually, you did not know

15:43:19 10 that a Lyme rash was considered to be a basis, if present,

15:43:24 11 in and of itself to diagnose Lyme disease; is that

15:43:27 12 correct?

15:43:32 13 A Rephrase the question again, please?

15:43:34 14 Q Sure. Prior to seeing Mr. Hanania, isn't it

15:43:37 15 true that you did not know that if a patient presented

15:43:41 16 with a Lyme rash, that that rash, in and of itself being

15:43:45 17 present, even without any other Lyme symptoms, was a

15:43:48 18 proper basis for diagnosing Lyme disease; is that correct?

15:43:52 19 MR. LEWIS: To the form, Judge.

15:43:56 20 THE COURT: No, I'll allow it.

15:43:59 21 A I felt that it was not a proper basis to start

15:44:02 22 treatment on.

15:44:02 23 Q Well, isn't it true that, in fact, you

15:44:05 24 believed -- I'm sorry. Isn't it true that you were

15:44:08 25 unaware that a Lyme disease rash was a basis for making



VC





1 Jankowski - Plaintiff - Direct 473

15:44:13 2 the diagnosis? I'm not talking about treatment right now,

15:44:17 3 I'm just saying making the diagnosis?

15:44:19 4 MR. LEWIS: To the form, Judge.

15:44:20 5 THE COURT: Were you aware, all right.

15:44:21 6 Q Were you aware that the presence of a Lyme rash,

15:44:24 7 without any other Lyme-related symptoms, was a basis for

15:44:28 8 making a diagnosis of Lyme disease before you saw Mr.

15:44:31 9 Hanania?

15:44:32 10 A Only a working diagnosis, not a final diagnosis.

15:44:39 11 Q What does that mean?

15:44:41 12 A Okay. That means using as a differential

15:44:44 13 diagnosis and considering what the possibilities were I

15:44:48 14 felt that it was a possibility for Lyme disease, but that

15:44:51 15 it was not finally diagnostic or nondiagnostic for Lyme

15:45:36 16 disease.

15:45:37 17 Q Do you recall my asking you questions at a

15:45:40 18 pretrial examination about a year ago in this case?

15:45:44 19 A Yes, I do.

15:45:45 20 Q Okay. And did you have a chance to read through

15:45:47 21 the transcript of that testimony at some time after the

15:45:50 22 deposition?

15:45:52 23 A Yes, I did.

15:45:52 24 Q And did you have a chance to read the transcript

15:45:55 25 prior to coming here in the recent past to prepare for



VC





1 Jankowski - Plaintiff - Direct 474

15:45:58 2 your testimony?

15:45:59 3 A Yes, I did.

15:46:01 4 Q Okay. Do you recall on the date of your

15:46:03 5 deposition, which was September 18, 1997, almost a year,

15:46:12 6 my asking you this question and your giving this response?

15:46:16 7 Page 28, line 21. "Question, on or before June 1, 1994,

15:46:27 8 were you aware that a Lyme rash was considered to be

15:46:29 9 diagnostic in and of itself for Lyme disease?" And

15:46:35 10 skipping to page 30, line 25, where the answer was given,

15:46:39 11 the answer is, "No." Do you recall that question and

15:46:43 12 giving that answer?

15:46:44 13 MR. LEWIS: Objection again, Judge.

15:46:46 14 THE COURT: No, I'll allow it. Do you

15:46:49 15 recall that question and giving that answer?

15:46:52 16 A I recall the question and I recall the same

15:46:54 17 issues that I had that as far as whether it was finally

15:46:59 18 diagnostic or not.

15:47:02 19 Q And you did not give that explanation when you

15:47:04 20 answered the question at the deposition; is that correct?

15:47:07 21 THE COURT: Well, the words speak for

15:47:08 22 themselves.

15:47:13 23 Q By the way, you had no background in infectious

15:47:17 24 diseases as of the time you saw Mr. Hanania; is that

15:47:19 25 correct?



VC





1 Jankowski - Plaintiff - Direct 475

15:47:20 2 A Yes.

15:47:21 3 Q Other than what you got in basic training in

15:47:23 4 medical school, right?

15:47:25 5 A Yes.

15:47:28 6 Q And, you felt qualified to make a determination

15:47:32 7 when you saw Mr. Hanania as to whether or not someone had

15:47:45 8 Lyme disease; is that correct?

15:47:45 9 A Yes.

15:47:46 10 Q Would I be correct that you can't recall if you

15:47:48 11 knew, when you saw Mr. Hanania, that a Lyme rash could be

15:47:51 12 itchy?

15:47:52 13 A Yes.

15:47:59 14 Q And, prior to seeing Mr. Hanania, isn't it true

15:48:03 15 that you had seen patients who you suspected as having

15:48:06 16 Lyme disease who didn't present with a Lyme rash?

15:48:10 17 A Yes.

15:48:16 18 Q And those patients, among other things, had

15:48:18 19 headaches; is that correct?

15:48:21 20 A Yes.

15:48:21 21 Q Fatigue?

15:48:22 22 A Yes.

15:48:23 23 Q Muscle pain?

15:48:24 24 A Yes.

15:48:25 25 Q Joint pain?



VC





1 Jankowski - Plaintiff - Direct 476

15:48:26 2 A Yes.

15:48:37 3 Q And you were aware when you saw Mr. Hanania that

15:48:40 4 rashes could be caused not only by Lyme disease but by

15:48:44 5 other insects -- insect bites other than a tick bite; is

15:48:48 6 that correct?

15:48:49 7 A Yes.

15:48:50 8 Q And it could also be -- the rash could also be

15:48:54 9 caused by dermatitis, contact dermatitis?

15:48:59 10 A Yes.

15:49:00 11 Q And also by lupus?

15:49:01 12 A Yes.

15:49:15 13 Q And, is it also true that, when you saw Mr.

15:49:18 14 Hanania, you did not know what actually caused the

15:49:21 15 presence of a Lyme rash; isn't that true?

15:49:26 16 A Yes.

15:49:34 17 Q And isn't it also true when you saw Mr. Hanania

15:49:38 18 that you knew that Long Island is an endemic area for Lyme

15:49:42 19 disease, so you wouldn't normally ask a patient of CHP if

15:49:45 20 they live in or have been exposed to an endemic area; is

15:49:49 21 that correct?

15:49:50 22 A Yes.

15:49:56 23 Q And, isn't it also true when you saw Mr. Hanania

15:50:00 24 that you knew that meningitis is a condition sometimes

15:50:03 25 associated with Lyme disease?



VC





1 Jankowski - Plaintiff - Direct 477

15:50:05 2 A Yes.

15:50:06 3 Q And isn't it also true that you knew that

15:50:08 4 generally some Lyme disease patients who develop

15:50:11 5 meningitis complain of neck stiffness or neck pain before

15:50:16 6 they develop meningitis?

15:50:19 7 A Yes.

15:50:19 8 Q So the neck pain or stiffness is a precursor to

15:50:22 9 the development of meningitis; is that correct? It can

15:50:28 10 be?

15:50:28 11 THE COURT: You didn't let her finish.

15:50:30 12 MR. LEWIS: Judge, the answer was

13 interrupted.

15:50:32 14 A Headache and neck stiffness does not have to be

15:50:35 15 a precursor to meningitis.

15:50:37 16 Q I'm sorry, I didn't hear you.

15:50:39 17 A I said neck stiffness and headache does not have

15:50:42 18 to be a precursor to meningitis.

15:50:52 19 Q You saw Mr. Hanania on June 30, 1994 in an

15:50:56 20 urgent care visit; is that correct?

15:50:58 21 A Yes.

15:50:59 22 Q And prior to that time, was it your standard

15:51:02 23 practice, when you'd see a patient in an urgent care visit

15:51:05 24 who had been seen in CHP in the recent past, to look at

15:51:09 25 the patient's chart for past medical visits and gather



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1 Jankowski - Plaintiff - Direct 478

15:51:11 2 information about the patient?

15:51:13 3 A Yes.

15:51:17 4 Q And, did you do that with regard to Mr. Hanania

15:51:21 5 when you saw him on June 30, 1994?

15:51:24 6 A Yes.

15:51:27 7 Q And were you aware that he had presented with a

15:51:30 8 rash, an erythematous rash on June 3 and June 4, 1994?

15:51:35 9 A Yes.

15:51:40 10 Q And were you aware that he presented with the

15:51:41 11 central punctate on June 3, 1994?

15:51:44 12 A Yes.

15:51:45 13 Q And were you aware that he had an abnormally

15:51:49 14 elevated fever when he presented to Dr. Abemayor on June

15:51:53 15 4, 1994?

15:51:55 16 MR. LEWIS: To the form, Judge. Abnormally

15:51:58 17 elevated fever.

15:52:00 18 THE COURT: A fever.

15:52:00 19 Q Were you aware that his body temperature was

15:52:04 20 abnormal when he presented on June 4, 1994?

15:52:09 21 A Yes.

15:52:10 22 Q It was higher than normal; correct?

15:52:12 23 A Yes.

15:52:13 24 Q Were you aware that he had a swollen lymph node

15:52:16 25 under his left arm when he presented on June 3 and June 4,



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1 Jankowski - Plaintiff - Direct 479

15:52:20 2 1994?

15:52:21 3 A Yes.

15:52:28 4 MR. LEWIS: Just to preserve the record,

15:52:29 5 there's no reference to a swollen lymph node on

15:52:32 6 June 3, I believe.

15:52:37 7 Q There's a -- actually, would I be correct the

15:52:40 8 chart makes reference to a palpable axillary node?

15:52:44 9 A Yes.

15:52:45 10 Q Is that a lymph node in the axillary area?

15:52:52 11 A Lymph nodes are in the axillary area. Since I

15:52:55 12 didn't do the examination, I can't tell you if it was a

15:52:58 13 lymph node that was palpated there.

15:53:09 14 Q When you saw Mr. Hanania, did you take a

15:53:12 15 history?

15:53:14 16 A Yes.

15:53:16 17 Q And, he reported headaches for six days; is that

15:53:21 18 correct?

15:53:22 19 A Yes.

15:53:23 20 Q And he told you initially that the headaches

15:53:25 21 were at night on top of his head?

15:53:28 22 A Yes.

15:53:28 23 Q And then in the left temporal area?

15:53:31 24 A Yes.

15:53:32 25 Q And am I pointing to the correct area, the left



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1 Jankowski - Plaintiff - Direct 480

15:53:34 2 temple?

15:53:35 3 A No.

15:53:35 4 Q Where is the left temple area?

15:53:37 5 A More lateral.

15:53:38 6 Q To the side?

15:53:39 7 A Yes.

15:53:40 8 Q Do I have it right now?

15:53:41 9 A Yes, you do.

15:53:50 10 Q For the record, indicating halfway between the

15:53:50 11 ear and the front of the forehead, roughly?

15:53:50 12 A More or less.

15:53:50 13 Q Okay. And, he told you at that time he had had

15:53:56 14 neck pain; is that correct?

15:53:59 15 A Yes.

15:53:59 16 Q He told you he had pain when he moved his neck?

15:54:02 17 A Yes.

15:54:03 18 Q And that it exacerbated his headache when he

15:54:05 19 moved his neck?

15:54:06 20 A Yes.

15:54:09 21 Q And did you perform a physical examination,

15:54:12 22 Doctor?

15:54:13 23 A Yes, I did.

15:54:14 24 Q And at the time that you performed a physical

15:54:17 25 examination, did you do a complete examination?



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1 Jankowski - Plaintiff - Direct 481

15:54:22 2 A No, I did not.

15:54:23 3 Q What did you do? Describe the physical exam

15:54:26 4 that you performed, please.

15:54:28 5 A Okay. I don't remember in detail without the

15:54:32 6 chart in front of me. I know I examined the head and I

15:54:35 7 examined the neck.

15:54:37 8 Q Well, I'll be happy to let you look at the

15:54:39 9 chart. I don't want you to guess.

15:54:54 10 A I examined the blood pressure, the eyes and the

15:55:00 11 neck.

15:55:00 12 Q Is that it?

15:55:02 13 A Yes.

15:55:04 14 Q You read the chart from June 3 and June 4 and

15:55:07 15 saw that he had a history of rash and the other things

15:55:11 16 I've asked you about; correct?

15:55:12 17 A Yes.

15:55:13 18 Q You didn't look to see if he had a rash at that

15:55:15 19 time, did you?

15:55:18 20 A No.

15:55:18 21 Q Yet, at your -- isn't it true that you have

15:55:21 22 previously stated that Mr. Hanania did not have a rash

15:55:25 23 when you saw him on June 4, 1994; isn't that true?

15:55:32 24 A I stated that I took the history as he was

15:55:35 25 speaking, and he did not complain of a rash.



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1 Jankowski - Plaintiff - Direct 482

15:55:39 2 Q Did you ever tell me that Mr. Hanania -- that

15:55:42 3 when you examined Mr. Hanania you found no evidence of a

15:55:47 4 rash?

15:55:48 5 A I don't recall saying that.

15:55:59 6 Q Page 69 of your deposition, ma'am, line 7. Do

15:56:05 7 you recall my asking this question and you giving this

15:56:08 8 response, Doctor? "Question, did you see any evidence of

15:56:10 9 a rash on Mr. Hanania when you examined him on June 30,

15:56:14 10 1994?

15:56:16 11 Answer, no I did not."

15:56:19 12 A On the areas --

15:56:21 13 MR. LEWIS: Judge.

15:56:21 14 THE COURT: You want to read something

15:56:22 15 further, all right.

15:56:23 16 MR. LEWIS: I think he has to read the

15:56:25 17 next --

15:56:25 18 MR. MAURER: I was about to read the next

15:56:27 19 section.

15:56:28 20 THE COURT: There you go. How about that.

15:56:29 21 MR. LEWIS: I'm pressing it, I guess.

15:56:32 22 Q And did you hear me ask this question and give

15:56:35 23 this answer, continuing, "Question, the rash that was

15:56:39 24 noted in the chart in the beginning of the month had

15:56:41 25 completely cleared up?



VC





1 Jankowski - Plaintiff - Direct 483

15:56:44 2 Answer, no, it did not.

15:56:45 3 Question, did you check Mr. Hanania's body on

15:56:48 4 the date of June 30, 1994? Did you check his body

15:56:51 5 completely to see if he had any other skin lesions or

15:56:55 6 rashes?

15:56:56 7 Answer, no, I did not." Do you recall those

15:56:58 8 questions and giving those answers, Doctor?

15:57:00 9 MR. LEWIS: There's no inconsistency with

15:57:02 10 this testimony.

15:57:03 11 THE COURT: Well, that's up to the jury, of

15:57:05 12 course.

15:57:06 13 Q Do you recall those questions and giving those

15:57:08 14 answers, Doctor?

15:57:11 15 A Yes.

15:57:13 16 Q Well, did he have a rash when you saw him?

15:57:17 17 A I did not see a rash in the areas that I was

15:57:19 18 looking at, and he did not report a rash to me, and since

15:57:24 19 it was an urgent visit, I felt that I had to concentrate

15:57:27 20 on the areas that he was acutely complaining of.

15:57:29 21 Q Did you look at the axillary area where he had

15:57:32 22 previously shown a rash to Ms. Kobel and Dr. Abemayor?

15:57:36 23 MR. LEWIS: It's been asked and answered,

15:57:37 24 Judge.

15:57:38 25 THE COURT: Well, yes. She's answered that



VC





1 Jankowski - Plaintiff - Direct 484

15:57:39 2 already.

15:57:42 3 Q Did Mr. Hanania follow you from the examining

15:57:46 4 room to your office that day?

15:57:49 5 A I don't know if he followed me in the hall. I

15:57:52 6 have no idea.

15:57:52 7 Q Well, do you recall him coming into the office

15:57:54 8 while you were on the telephone and waiting until you got

15:57:57 9 off the phone and then telling you he wanted to show you a

15:58:01 10 rash?

15:58:01 11 A No, I do not.

15:58:03 12 Q Are you saying he didn't do that?

15:58:05 13 A Yes.

15:58:12 14 Q And you're certain that didn't happen; is that

15:58:14 15 correct?

15:58:15 16 A Yes.

15:58:22 17 MR. MAURER: May I approach, your Honor?

15:58:26 18 Q Would you please turn to the July 5 note?

15:58:31 19 A July 5?

15:58:32 20 Q Yes. There's a note in the chart dated July 5,

15:58:35 21 1994, urgent visit; is that correct, Doctor?

15:58:38 22 A Yes.

15:58:38 23 Q And, can you tell, looking at this chart, who

15:58:40 24 made this entry? Is this Dr. Heisler?

15:58:46 25 A It seems like his writing.



VC





1 Jankowski - Plaintiff - Direct 485

15:58:48 2 Q Okay. And, would I be correct that Dr. Heisler

15:58:51 3 did a physical examination of Mr. Hanania on July 5?

15:58:56 4 A Yes.

15:58:56 5 Q And would I be correct that he made a notation

15:58:58 6 about the skin?

15:59:01 7 A Yes.

15:59:02 8 Q And what does it say, word for word? Please

15:59:05 9 read it out loud.

15:59:06 10 A It says, "Skin pale, uniform eryth -- rash

15:59:17 11 axilla left," and I don't know if he writes with or

15:59:17 12 without, and he didn't finish the note.

15:59:32 13 Q Doctor, had you seen the rash on June 30, 1994

15:59:35 14 in the same location where it was noted previously in the

15:59:39 15 beginning of June by Ms. Kobel and Dr. Abemayor, would

15:59:43 16 that have been a significant clinical finding for you?

15:59:47 17 A Yes.

15:59:49 18 Q And you saw in the chart that the previous

15:59:52 19 diagnosis was cellulitis; correct?

15:59:55 20 A Yes.

15:59:56 21 Q And had you seen the rash on Mr. Hanania in the

16:00:00 22 axillary area as previously noted on June 3 and June 4 in

16:00:05 23 the CHP chart, would that have led you to conclude that

16:00:08 24 perhaps Mr. Hanania didn't have cellulitis and had Lyme

16:00:12 25 disease?



VC





1 Jankowski - Plaintiff - Direct 486

16:00:13 2 MR. LEWIS: Only to the form, Judge.

16:00:14 3 THE COURT: I'll allow it.

16:00:18 4 A No.

16:00:32 5 Q And, incidentally, you received no instruction

16:00:35 6 from CHP at anytime before you saw Mr. Hanania as to how

16:00:39 7 to diagnose and treat Lyme disease; is that correct?

16:00:44 8 A No.

16:00:45 9 Q Is it correct?

16:00:46 10 A Yes.

16:00:57 11 Q And, you knew when you saw Mr. Hanania that

16:01:00 12 someone who has Lyme disease can have a rash that is red,

16:01:06 13 tender and itchy; correct?

16:01:09 14 MR. LEWIS: Judge, this has been asked and

16:01:11 15 answered 15 minutes ago in -- sequentially.

16:01:15 16 MR. MAURER: I'm sorry, I don't recall it.

16:01:16 17 I'm looking at a different note. I don't mean

16:01:19 18 to be repetitious. I'll accept counsel's

16:01:22 19 representation.

16:01:24 20 THE COURT: Okay.

16:01:30 21 Q You knew, when you saw Mr. Hanania, that an

16:01:33 22 expanding skin rash is a symptom that can be seen in Lyme

16:01:36 23 disease; correct?

16:01:37 24 A Yes.

16:01:38 25 Q And you knew from reading the chart that, in



VC





1 Jankowski - Plaintiff - Direct 487

16:01:40 2 fact, that was part of Mr. Hanania's history from early

16:01:43 3 June, the same June you saw him; correct; he had an

16:01:47 4 expanding erythematous or red rash?

16:01:50 5 A Yes.

16:01:57 6 Q I don't think I asked you this. You knew when

16:01:59 7 you saw Mr. Hanania that the presence of a palpable

16:02:03 8 axillary lymph node is a sign of infection and a symptom

16:02:07 9 that can be seen in Lyme disease; correct?

16:02:09 10 A Yes.

16:02:28 11 Q And prior to seeing Mr. Hanania, you had

16:02:31 12 referred patients to Dr. Eileen Hilton at the Long Island

16:02:34 13 Jewish Lyme clinic; is that correct?

16:02:37 14 A Yes.

16:02:38 15 Q And that was specifically with regard to

16:02:40 16 evaluating possible Lyme disease; correct?

16:02:42 17 A Yes.

16:02:47 18 Q And isn't it also true that you knew, when you

16:02:49 19 saw Mr. Hanania, that Amoxicillin and Erythromycin were

16:02:55 20 two antibiotics that were each effective in treating both

16:02:59 21 cellulitis and Lyme disease?

16:03:02 22 A Yes.

16:03:15 23 MR. MAURER: Let me just see if I have

16:03:16 24 anything else, Judge. Just a little more.

16:03:26 25 Q You diagnosed Mr. Hanania as suffering from a



VC





1 Jankowski - Plaintiff - Direct 488

16:03:28 2 neck sprain; is that correct?

16:03:30 3 A Yes.

16:03:32 4 Q And, it was your opinion, when you saw, Mr.

16:03:36 5 Hanania that the headaches that he had both in the temple

16:03:40 6 area and in the top of his head were being caused by the

16:03:45 7 neck sprain; is that correct?

16:03:47 8 A Yes.

16:03:48 9 Q And you never considered the possibility that

16:03:50 10 those headaches in the temporal area and the top of the

16:03:55 11 head could have been Lyme disease related; is that

16:03:57 12 correct?

16:03:58 13 A Yes.

16:04:03 14 Q And isn't it also true that Mr. Hanania gave you

16:04:06 15 no history of any injury to his neck?

16:04:08 16 A Yes.

16:04:14 17 Q And it's also true that he didn't give any

16:04:16 18 history consistent with him having sustained any injury to

16:04:19 19 his neck?

16:04:20 20 A Yes.

16:04:55 21 MR. MAURER: I have nothing further. Thank

16:04:56 22 you, Doctor.

16:04:58 23 MR. LEWIS: I have very few questions,

16:04:58 24 Judge.

16:05:00 25 THE COURT: Sounds good.



VC





1 Jankowski - Plaintiff - Cross 489

2 CROSS-EXAMINATION

16:05:02 3 BY MR. LEWIS:

16:05:02 4 Q Dr. Jankowski, on June 30, this was an urgent

16:05:08 5 visit; correct?

16:05:09 6 A Yes.

16:05:12 7 Q Is urgent the same word as an acute visit?

16:05:14 8 A Yes.

16:05:15 9 Q Did Mr. Hanania, on June 30, tell you that his

16:05:22 10 rash persisted or expanded after he left CHP on June 30?

16:05:30 11 A No.

16:05:31 12 Q Did he tell you that the rash had expressed pus

16:05:35 13 after he left CHP on June 4?

16:05:39 14 A No.

16:05:40 15 Q Did he tell you that he continued to have fevers

16:05:42 16 after June 4 when he left CHP?

16:05:46 17 A No.

16:05:47 18 Q Did he have a fever on June 30 when you saw him?

16:05:57 19 A No.

16:06:00 20 Q If he had told you that on June 30 his rash had

16:06:05 21 reappeared or that he had a rash on June 30, what would

16:06:13 22 you have done, if anything?

16:06:15 23 A I would have taken a look at the rash and I

16:06:17 24 would have tried to figure out what the reason was for the

16:06:21 25 rash.



VC





1 Jankowski - Plaintiff - Cross 490

16:06:28 2 Q Did Mr. Hanania show you the rash on June 30?

16:06:40 3 A No.

16:06:40 4 Q If he had shown you a rash, what if anything

16:06:40 5 would you have done?

16:06:40 6 A I would have done blood work, I might have

16:06:42 7 checked his throat, I would have done throat cultures. I

16:06:45 8 would have just pursued the evaluation.

16:06:52 9 Q Would you have sent him home without doing what

16:06:57 10 you've just indicated you would be doing?

16:07:02 11 A I'm not sure. I might have, but it depends on

16:07:04 12 the rest of the examination.

16:07:07 13 MR. LEWIS: Okay. May I approach, Judge?

16:07:10 14 THE COURT: Yes.

16:07:10 15 Q I'm going to show you plaintiff's exhibit two

16:07:12 16 which is in evidence, the Long Island Jewish Medical

16:07:15 17 Center records, and I'm going to refer you to an emergency

16:07:18 18 room sheet of July 2, 1994. Do you see that?

16:07:24 19 A Yes.

16:07:25 20 Q I'm not being facetious, but just for purposes

16:07:29 21 of the record, did this emergency room visit of Mr.

16:07:31 22 Hanania to LIJ occur after June 30, 1994 when you saw him

16:07:35 23 at CHP?

16:07:38 24 A Yes.

16:07:38 25 Q Did Mr. Hanania, on June 2, 1994, make any



VC





1 Jankowski - Plaintiff - Cross 491

16:07:45 2 complaints to the LIJ staff?

16:07:48 3 MR. MAURER: Objection. How can this

16:07:51 4 witness state a complete answer to that based

16:07:53 5 just looking at a note, your Honor?

16:07:56 6 MR. LEWIS: Based upon this witness -- I'll

16:07:58 7 withdraw the question. I'll withdraw the

16:08:00 8 question.

16:08:01 9 Q What -- does that emergency room visit in

16:08:03 10 evidence, does it have a section called patient

16:08:07 11 complaints?

16:08:08 12 A Yes.

16:08:10 13 Q What complaints are reflected in that record

16:08:12 14 which is in evidence that Mr. Hanania gave to the staff on

16:08:18 15 July 2, 1994?

16:08:22 16 A It writes here, "I've had a headache for eight

16:08:25 17 days. I saw a CHP doctor two days ago and the medication

16:08:29 18 is not helping."

16:08:30 19 Q Would it have been consistent with acceptable

16:08:32 20 medical practice, if Mr. Hanania had voiced a complaint of

16:08:37 21 the presence of a rash or the return of a rash, that that

16:08:40 22 would have been recorded by the emergency room physician?

16:08:44 23 Would that have been good practice?

16:08:46 24 A Yes.

16:08:50 25 Q I want you to assume that Mr. Hanania told this



VC





1 Jankowski - Plaintiff - Cross 492

16:08:52 2 jury that he walked out of the emergency room without

16:08:56 3 being examined, but returned the following day on July 3,

16:09:02 4 1994. Do you see a copy within this exhibit of that

16:09:08 5 emergency room visit?

16:09:10 6 A Yes.

16:09:11 7 Q Does that emergency room visit, now on July 3,

16:09:15 8 reflect any complaints voiced by Mr. Hanania to the

16:09:20 9 emergency room staff?

16:09:23 10 A Yes.

16:09:24 11 Q Will you read to the members of the jury what

16:09:28 12 complaints Mr. Hanania made, now on July 3, to the

16:09:31 13 emergency room staff?

16:09:33 14 A "Patient complaining of headache for six days.

16:09:36 15 Seen at CHP Thursday. Told to come to ER if headache

16:09:43 16 worsens. Now headache worse on left side radiating to

16:09:48 17 left ear. Unable to taste food."

16:09:51 18 Q I want to show you another part of this

16:09:53 19 emergency room record, Doctor. Does it reflect a general

16:09:57 20 physical examination of Mr. Hanania on July 3, 1984?

16:10:05 21 A Yes.

16:10:06 22 Q Does that physical examination contain entries

16:10:12 23 regarding examination of Mr. Hanania's chest?

16:10:15 24 A Yes.

16:10:15 25 THE COURT: What was the year again?



VC





1 Jankowski - Plaintiff - Redirect 493

16:10:18 2 MR. LEWIS: Did I say '84? I'm sorry.

16:10:20 3 '94, Judge.

16:10:22 4 A Yes.

16:10:24 5 Q I'm in a time warp. Does that record reflect

16:10:27 6 any entries, findings or observation of a rash on Mr.

16:10:31 7 Hanania's chest on July 3, 1994 by the LIJ staff?

16:10:38 8 A No, it does not.

16:10:39 9 Q Would it be reasonable and acceptable medical

16:10:44 10 practice by the emergency room staff to record the

16:10:46 11 presence of a rash on a chest if they observed it during

16:10:50 12 this type of presentation?

16:10:51 13 A Yes.

16:10:53 14 MR. LEWIS: I have no further questions.

15 REDIRECT EXAMINATION

16:11:02 16 BY MR. MAURER:

16:11:02 17 Q It's your testimony that Mr. Hanania did not

16:11:05 18 tell you about a rash on his chest; is that correct?

16:11:08 19 A Yes.

16:11:09 20 Q And, therefore, you didn't look to see if it was

16:11:11 21 there; correct?

16:11:13 22 A Yes.

16:11:14 23 Q And you didn't give any consideration to the

16:11:16 24 possibility that the rash might be there. You weren't

16:11:19 25 concerned with it at the time; correct?



VC





1 Jankowski - Plaintiff - Redirect 494

16:11:21 2 A Yes.

16:11:22 3 Q And, how do you explain the notation of Dr.

16:11:31 4 Heisler, who was your medical director at CHP; correct?

16:11:34 5 A Yes.

16:11:35 6 Q How do you explain the presence of the erythema

16:11:38 7 migrans -- I'm sorry of the erythematous rash in the left

16:11:41 8 axilla area of Mr. Hanania's body on July 5 if it wasn't

16:11:46 9 present when you saw -- when you saw him? Can you explain

16:11:51 10 that?

16:11:52 11 MR. LEWIS: Objection.

16:11:53 12 THE COURT: All right. I'll allow it.

16:11:59 13 A I have no explanation for who saw what on each

16:12:02 14 examination. I know that if I had had a complaint of a

16:12:06 15 rash, I would have looked at it and done something about

16:12:09 16 it.

16:12:20 17 MR. MAURER: Nothing further.

16:12:20 18 MR. LEWIS: Absolutely nothing. Thank you,

16:12:20 19 Doctor.

16:12:20 20 THE COURT: Absolutely nothing. Okay. You

16:12:20 21 can step down. Thank you.

16:12:20 22 THE WITNESS: Thank you.

16:12:26 23 MR. MAURER: May we approach side bar, your

16:12:28 24 Honor?

16:12:28 25 THE COURT: Surely.



VC





1 495

16:12:29 2 (Whereupon there was a side bar conference.)

16:13:56 3 THE COURT: We have now verified the fact

16:13:58 4 that your holiday is coming up. You don't have

16:14:02 5 to be here tomorrow, Monday or Tuesday, but

16:14:06 6 Wednesday we recommence, okay. In the interim,

16:14:10 7 have a very good and fortuitous time, a time to

16:14:18 8 realize how important you are to the whole

16:14:21 9 process. Without you we would have just talk

16:14:25 10 and nothing. So, we appreciate you and hope

16:14:30 11 that we've been able to serve your interest as

16:14:33 12 well as others. Thank you. Good night, safe

16:14:37 13 travel.

16:15:20 14 (The following takes place out of the presence of the jury.)

16:15:22 15 MR. MAURER: Defense counsel and I have

16:16:06 16 discussed special damages in this case in an

16:16:09 17 attempt to reach a stipulation with regard to

16:16:13 18 the numbers involved in certain areas, and have

16:16:16 19 reached that agreement, and I'm now prepared to

16:16:18 20 put the stipulation on the record. The

16:16:22 21 stipulation is that Mr. Hanania has total

16:16:27 22 medical expenses, including supplemental

16:16:33 23 purchases he made at health food stores

16:16:36 24 associated with his attempting to treat his

16:16:40 25 condition, that total $15,487, of which there is



VC





1 496

16:16:48 2 a CIGNA lien totaling $5,319.18.

16:16:58 3 MR. LEWIS: I just want to clarify that.

16:17:00 4 The lien of the $5,000 is inclusive within the

16:17:04 5 15,000 dollar figure that Mr. Maurer had

16:17:09 6 expressed.

16:17:10 7 MR. MAURER: That's correct, and it's also

16:17:11 8 understood, obviously, that while we're

16:17:14 9 stipulating to these amounts, I understand that

16:17:15 10 counsel is not by any means conceding that Mr.

16:17:20 11 Hanania is entitled to these damages.

16:17:22 12 MR. LEWIS: No. That's exactly what --

16:17:24 13 we're stipulating that this is the itemization

16:17:28 14 as to expenses that were incurred and are part

16:17:32 15 of the plaintiff's proof on special damages.

16 (Case adjourned to Wednesday, September 23, 1998 at 9:30 a.m.)

17

18

19

20

21

22

23

24

25



VC





1 Abemayor - Plaintiff - Direct 394

11:52:00 2 MR. MAURER: The next witness I call is Dr.

11:52:03 3 Violet Abemayor. Would you please take the

11:52:04 4 stand now?

5 V I O L E T A B E M A Y O R, M. D., called by

6 Plaintiff, residing at 128 Hampshire Road, Great Neck, New

11:53:01 7 York, was duly sworn and testified as follows:

8 DIRECT EXAMINATION

11:53:05 9 BY MR. MAURER:

11:53:05 10 Q Good morning, Doctor. As far as your education

11:53:23 11 is concerned, Dr. Abemayor, would I be correct that you

11:53:26 12 went to college both at Pennsylvania, University of

11:53:31 13 Pennsylvania?

11:53:32 14 A Yes.

11:53:33 15 Q And you were in the premed program at Columbia

11:53:38 16 University?

11:53:38 17 A It was a -- I did my premedical work at

11:53:40 18 Columbia.

11:53:42 19 Q And you also took some summer courses at the

11:53:44 20 University of Pennsylvania?

11:53:45 21 A I completed my premed at the University of

11:53:47 22 Pennsylvania.

11:53:49 23 Q And you took a master's program at Columbia in

11:53:52 24 human nutrition?

11:53:54 25 A Yes, while I was applying for medical school.



VC





1 Abemayor - Plaintiff - Direct 395

11:53:57 2 Q And, you actually began medical school at Stony

11:54:02 3 Brook where Dr. Dattwyler is from?

11:54:05 4 A Yes.

11:54:05 5 Q And you graduated from there with a medical

11:54:08 6 degree in 1979?

11:54:10 7 A Yes.

11:54:13 8 Q Your internship was served at a hospital on

11:54:16 9 Rhode Island?

11:54:17 10 A Yes.

11:54:18 11 Q And your residency as well in internal medicine?

11:54:20 12 A Yes.

11:54:23 13 Q And as far as your continuing medical education

11:54:27 14 is concerned, you've participated in grand rounds at the

11:54:32 15 Long Island Jewish Hospital?

11:54:33 16 A Yes.

11:54:34 17 Q What are grand rounds?

11:54:36 18 A They're formal lectures that are different on

11:54:43 19 various topics in internal medicine on a weekly basis.

11:54:47 20 Q And, in addition to those grand rounds, you've

11:54:50 21 also attended lectures dealing with the subjects of

11:54:53 22 pediatrics?

11:54:55 23 A Not pediatrics.

11:54:59 24 Q Are you sure, I --

11:55:00 25 A Not pediatrics. I'm an internist. I generally



VC





1 Abemayor - Plaintiff - Direct 396

11:55:05 2 don't go to pediatric lectures.

11:55:14 3 Q Cardiology? Did you attend any on cardiology?

11:55:17 4 A Yes.

11:55:18 5 Q Neurology?

11:55:21 6 A Only if it was part of a internal medicine kind

11:55:25 7 of program, not specifically neurology.

11:55:29 8 Q Did you attend any conferences dealing with

11:55:30 9 cardiology?

11:55:32 10 A Yes.

11:55:34 11 Q AIDS?

11:55:34 12 A Yes.

11:55:37 13 Q Did you attend any specific conferences dealing

11:55:40 14 with the subject of infectious diseases before you saw Mr.

11:55:45 15 Hanania on June 4, 1994?

11:55:49 16 A Only as part of internal medicine conferences or

11:55:54 17 as part of grand rounds, but not a formal infectious

11:55:59 18 disease conference.

11:56:00 19 Q Did you attend any specific conferences dealing

11:56:02 20 with the subject of rheumatology before June 4, 1994?

11:56:08 21 A Similarly as with the infectious disease, only

11:56:12 22 as part of general internal medicine.

11:56:16 23 Q Do you have any recollection of attending any

11:56:27 24 conferences before June 4, 1994, dealing with the

11:56:27 25 diagnosis and treatment of Lyme disease?



VC





1 Abemayor - Plaintiff - Direct 397

11:56:27 2 A I -- not a specific conference.

11:56:35 3 Q Did you attend grand rounds at CHP prior to

11:56:39 4 6/4/94?

11:56:42 5 A At CHP there was, besides the grand rounds at

11:56:46 6 Long Island Jewish, on Thursday during lunch we brought in

11:56:53 7 a speaker who would also discuss various topics in

11:56:56 8 internal medicine, orthopedics, gynecology, pediatrics.

11:57:01 9 Every week it would be someone different. Those lectures

11:57:04 10 were given at CHP. They're different from the lectures at

11:57:09 11 LIJ.

11:57:11 12 Q Do you recall if any of those lectures touched

11:57:15 13 upon the subject of diagnosis and treatment of Lyme

11:57:18 14 disease before 6/4/94?

11:57:21 15 A I have no specific recollection.

11:57:25 16 Q After you completed your training, did you work

11:57:31 17 at a VA Hospital in Providence for a few months?

11:57:35 18 A Yes, I did.

11:57:36 19 Q And did you do some per diem work in an

11:57:38 20 emergency room in Queens -- in a Queens -- Booth Memorial

11:57:44 21 Hospital and Queens General Hospital in 1983?

11:57:49 22 A Yes, I did.

11:57:51 23 Q And did you start working at CHP, one of the

11:57:54 24 defendants in this case, in -- starting in late 1983?

11:57:59 25 A Yes.



VC





1 Abemayor - Plaintiff - Direct 398

11:58:00 2 Q And did you work there right through June 4,

11:58:04 3 1994?

11:58:07 4 A I worked there until about a year ago.

11:58:11 5 Q Until 1997?

11:58:14 6 A Yes, until June 30, 1997.

11:58:16 7 Q When you first started working at CHP, was it on

11:58:19 8 a part-time basis in the urgent care area?

11:58:23 9 A Yes. For about two months, three months it

11:58:27 10 was -- that's where it was.

11:58:29 11 Q And in early 1984 you became a full-time

11:58:33 12 internist with your own panel of patients that you would

11:58:36 13 look after?

11:58:37 14 A Yes.

11:58:40 15 Q Although you continued to do some urgent care

11:58:43 16 coverage at CHP after that time?

11:58:45 17 A As did all the internists.

11:58:48 18 Q Was that expected of all the internists at CHP,

11:58:51 19 that they all did some work with urgent care visits?

11:58:55 20 A Well, we tried to accommodate individuals who

11:58:57 21 would call at the last minute with problems, and by having

11:59:00 22 this mechanism, people could be seen even though one's

11:59:05 23 schedule might be completely filled.

11:59:09 24 Q I need to ask you a series of questions now

11:59:11 25 about your knowledge of Lyme disease on and before June 4,



VC





1 Abemayor - Plaintiff - Direct 399

11:59:16 2 1994, and I apologize to the Court and jury for any

11:59:20 3 duplication of what already transpired this morning, but I

11:59:23 4 need to establish what you knew, Doctor, okay? Prior to

11:59:28 5 seeing Mr. Hanania on 6/4/94, would I be correct that you

11:59:33 6 understood Lyme disease to be a bacterial illness caused

11:59:36 7 by a tick bite that was infected with the bacteria that

11:59:39 8 causes Lyme disease?

11:59:41 9 A Yes.

11:59:45 10 Q And you knew before you saw Mr. Hanania that an

11:59:50 11 individual bitten by a tick that was infected with the

11:59:53 12 Lyme-causing bacteria may develop a rash within a few days

11:59:56 13 to a month after the tick bite --

12:00:00 14 A Yes.

12:00:01 15 Q -- as part of the early Lyme disease phase?

12:00:04 16 A Yes.

12:00:08 17 Q By the way, you had a chance to hear all of Ms.

12:00:12 18 Kobel's testimony here today; correct?

12:00:15 19 A Yes.

12:00:18 20 Q Before you saw Mr. Hanania, did you know that

12:00:20 21 Lyme disease can disseminate immunologically through the

12:00:25 22 blood to various organs, including joints, other areas of

12:00:29 23 the skin and brain?

12:00:31 24 A Yes.

12:00:32 25 Q And that that spread could cause early



VC





1 Abemayor - Plaintiff - Direct 400

12:00:34 2 disseminated or stage-two Lyme disease?

12:00:37 3 A Yes.

12:00:40 4 Q And did you know, before seeing Mr. Hanania,

12:00:43 5 that months to years later Lyme disease, if not treated

12:00:48 6 effectively, early, can develop into stage-three Lyme

12:00:53 7 disease?

12:00:53 8 A Yes.

12:00:57 9 Q Did you know before seeing Mr. Hanania that

12:01:00 10 probably greater than 50 percent of individuals who

12:01:03 11 contract Lyme disease develop a Lyme rash or erythema

12:01:10 12 migrans?

12:01:10 13 A Yes.

12:01:14 14 Q Did you know that the characteristics of an

12:01:17 15 erythema migrans rash, or EM for short, included an area

12:01:24 16 of redness or erythema?

12:01:27 17 A Yes.

12:01:27 18 Q And this, again, is what you knew before you saw

12:01:30 19 Mr. Hanania, okay. Did you understand that when I asked

12:01:33 20 the last question?

12:01:34 21 A I did.

12:01:35 22 Q Okay. And did you also know before seeing Mr.

12:01:38 23 Hanania that the EM characteristics including generally an

12:01:42 24 area of central clearing --

12:01:45 25 A Yes.



VC





1 Abemayor - Plaintiff - Direct 401

12:01:46 2 Q -- possibly a bull's-eye kind of appearance --

12:01:49 3 A Yes.

12:01:51 4 Q -- that enlarges over a period of time --

12:01:53 5 A Yes.

12:01:54 6 Q -- that typically has a round shape?

12:01:59 7 A Round or oval.

12:02:01 8 Q Ringlike?

12:02:03 9 A That general shape, yes.

12:02:05 10 Q In other words, it wouldn't have to be a perfect

12:02:08 11 circle?

12:02:09 12 A Correct.

12:02:12 13 Q So there -- you knew there could be variations

12:02:14 14 in the shape of the rash?

12:02:23 15 A Yes.

12:02:23 16 Q And you knew that before June 4, '94?

12:02:23 17 A Yes.

12:02:25 18 Q And you knew that not all Lyme rashes have a

12:02:28 19 bull's-eye in appearance?

12:02:30 20 A Yes.

12:02:34 21 Q And with regard to the first stage of Lyme

12:02:37 22 disease, the earlier acute stage of Lyme disease, did you

12:02:41 23 know before June 4, '94 that in addition to a rash there

12:02:46 24 may be some vague kinds of constitutional symptoms?

12:02:50 25 A Yes.



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1 Abemayor - Plaintiff - Direct 402

12:02:50 2 Q Such as malaise or achiness?

12:02:54 3 A Yes.

12:02:54 4 Q And did you know that there may be a possible

12:02:56 5 history of exposure to deer ticks that may be infected

12:03:02 6 with the Lyme-causing bacteria?

12:03:04 7 A May be. There may not be. There can be, yes.

12:03:14 8 Q Did you know when you saw Mr. Hanania that the

12:03:16 9 entire metropolitan tri-state area was endemic with deer

12:03:22 10 ticks that were infected with the Lyme bacteria?

12:03:24 11 A Yes.

12:03:25 12 Q And did you know that on Long Island and

12:03:27 13 Westchester and other areas there's an increased incidence

12:03:32 14 of Lyme disease compared to other areas such as the

12:03:35 15 southern part of the United States or the southwest?

12:03:38 16 A Yes.

12:03:42 17 Q And did you know when you saw Mr. Hanania that

12:03:45 18 there is always an issue about Lyme disease in terms of

12:03:49 19 being concerned about Lyme disease every spring and

12:03:53 20 summer?

12:03:54 21 A Yes.

12:03:58 22 Q Going back to your work in the emergency rooms

12:04:00 23 before working at CHP, did you treat patients for Lyme

12:04:06 24 disease where people came in with embedded ticks that you

12:04:08 25 would remove?



VC





1 Abemayor - Plaintiff - Direct 403

12:04:10 2 A On one occasion I recall in an -- in the

12:04:15 3 emergency room having a patient come in with a tick, yes.

12:04:19 4 Q Only one occasion or more than one?

12:04:21 5 A Actually it was one occasion that I remember

12:04:24 6 it -- you're talking about prior to 19 -- during my time

12:04:28 7 in the emergency room there was one occasion.

12:04:30 8 Q And how about prior to the time you saw Mr.

12:04:32 9 Hanania?

12:04:33 10 A That was prior to the time I saw Mr. Hanania.

12:04:36 11 Q Is that the only time, before you saw Mr.

12:04:37 12 Hanania, that you ever removed an embedded deer tick from

12:04:41 13 a patient?

12:04:42 14 A No. I think it -- I think there were other

12:04:45 15 occasions at CHP where that may have happened, but I

12:04:49 16 remember the time in the emergency room because it was

12:04:51 17 really -- I guess it was the first time.

12:04:55 18 Q Did you know, when you saw Mr. Hanania, that you

12:05:04 19 should wait to test for Lyme disease for at least three or

12:05:08 20 four weeks after a tick bite, because prior to that time

12:05:12 21 it would not be likely that the patient had manufactured

12:05:16 22 enough antibodies to the Lyme bacteria to show up on the

12:05:19 23 test?

12:05:21 24 A Yes, I -- often at the beginning, most commonly

12:05:25 25 at the beginning when you see the rash, if you test the



VC





1 Abemayor - Plaintiff - Direct 404

12:05:29 2 blood for Lyme disease, generally the test will be

12:05:31 3 negative, that generally you ask the patient to come back

12:05:35 4 in three or four weeks to get the blood test done.

12:05:44 5 Q If you knew that a patient who came in to see

12:05:48 6 you in June of 1994 lived in an endemic area for infected

12:05:57 7 deer ticks, how important would it be when taking the

12:06:00 8 history from the patient to know whether or not, in fact,

12:06:04 9 they had actually had visited any wooded areas in the

12:06:09 10 recent past?

12:06:12 11 A I mean, it's a consideration, but generally

12:06:15 12 anyone who lives in this area in their backyard anywhere,

12:06:20 13 they can get infected by a deer -- by a tick and get Lyme

12:06:26 14 disease, so, it's a consideration if they tell me they've

12:06:30 15 been hiking in shorts, but I -- it's a consideration for

12:06:36 16 my diagnosis even without that.

12:06:38 17 Q Even if you don't know about the actual trip

12:06:40 18 into the woods, hiking or anything like that?

12:06:43 19 A Yes.

12:06:44 20 Q If you know they live in an endemic area?

12:06:47 21 A Yes. I check my kids for ticks. I mean, I'm

12:06:49 22 aware that even without the history of hiking that I

12:06:53 23 have -- that I have to be aware of the possibility of Lyme

12:06:57 24 disease.

12:06:57 25 Q And, prior to seeing Mr. Hanania, were you aware



VC





1 Abemayor - Plaintiff - Direct 405

12:07:03 2 that many Lyme disease patients never see the tick that

12:07:08 3 bit them that causes their disease?

12:07:10 4 A Yes.

12:07:11 5 Q Therefore, is it fair and accurate to say that

12:07:15 6 at the time you saw Mr. Hanania, it was not terribly

12:07:19 7 important to you in ruling in or ruling out Lyme disease

12:07:23 8 as a diagnosis whether or not you actually were told the

12:07:27 9 patient knew he had been bitten by a deer tick?

12:07:30 10 MR. LEWIS: To the form, Judge. I don't

12:07:31 11 know what "terribly important" means.

12:07:33 12 Q Do you understand?

12:07:35 13 THE COURT: Each one of us are going to

12:07:37 14 have a different concept of how terribly

12:07:41 15 terrible.

12:07:42 16 A I would make -- an individual did not have to

12:07:45 17 tell me they were bitten by a tick for me to consider Lyme

12:07:50 18 disease in my differential diagnosis.

12:08:02 19 Q And if someone came in to you prior to the time

12:08:02 20 you saw Mr. Hanania with a rash that may have looked

12:08:04 21 something like a Lyme rash, would you look for evidence of

12:08:09 22 a central punctate?

12:08:16 23 A I think anytime I see an erythematous rash I

12:08:21 24 consider it -- consider Lyme disease to be one of the --

12:08:24 25 one of the possible diagnoses, but, is that --



VC





1 Abemayor - Plaintiff - Direct 406

12:08:30 2 Q My question is would you look for an area of

12:08:32 3 central punctate, Doctor?

12:08:35 4 A I would note it if it was there, but I might

12:08:38 5 see -- any bite might give me that little central -- that

12:08:45 6 bite, you know. I -- I don't specifically look for that.

12:08:59 7 Q Do you recall my taking your deposition

12:09:03 8 sometime, let's see when it was -- September 29, 1997,

12:09:08 9 about a year ago?

12:09:09 10 A Yes.

12:09:10 11 Q Did you review the transcript of that deposition

12:09:14 12 at some point after the deposition was concluded at the

12:09:18 13 request of defense counsel to see if it was an accurate

12:09:20 14 transcript?

12:09:21 15 A I did review it.

12:09:24 16 Q And did you sign a verification page saying it

12:09:26 17 was an accurate transcript, as best as you can tell?

12:09:30 18 A I did not.

12:09:30 19 Q Did you review that transcript in the recent

12:09:33 20 past in preparation for coming to court here in this

12:09:37 21 trial?

12:09:37 22 A Within the last two weeks I read through it.

12:09:50 23 Q Page 35. Do you recall at your deposition --

12:09:57 24 line three -- do you recall my asking these questions and

12:10:04 25 your giving these responses, Doctor? "Question, what is a



VC





1 Abemayor - Plaintiff - Direct 407

12:10:07 2 central punctate? Are you familiar with that term?

12:10:10 3 Answer, I am assuming that you mean a site where

12:10:12 4 a bite may have occurred.

12:10:14 5 Question, would you look for such a site in a

12:10:16 6 patient who came in with a rash that you thought might be

12:10:19 7 an erythema migrans rash?

12:10:21 8 Answer, I would look for it, but if you don't

12:10:24 9 see it -- it -- I may look for it, but I don't regard it

12:10:28 10 as being essential one way or another." Do you recall

12:10:31 11 being asked those questions and giving those responses?

12:10:34 12 THE COURT: No inconsistency.

12:10:36 13 MR. LEWIS: There's no inconsistency,

12:10:38 14 Judge.

12:10:39 15 THE COURT: You don't have to answer.

12:10:39 16 There's no inconsistency.

12:10:41 17 MR. MAURER: Your Honor, I did ask if she

12:10:43 18 would specifically look for a central punctate,

12:10:45 19 and first, before reading the transcript, I was

12:10:47 20 told she wouldn't specifically look for it,

12:10:48 21 that's why I read the question and answer. I'll

12:10:50 22 move on. The record will speak for itself.

12:11:16 23 Q On the day you saw Mr. Hanania and prior to that

12:11:18 24 time, would the presence of a central punctate in a rash

12:11:22 25 that looked like erythema migrans or might be erythema



VC





1 Abemayor - Plaintiff - Direct 408

12:11:27 2 migrans be one of the things you would look at to make a

12:11:30 3 differential diagnosis?

12:11:32 4 A Well, I'm not -- I can't answer that question.

12:11:37 5 Q Why not?

12:11:38 6 A When you say in a rash that appears to be

12:11:41 7 erythema migrans, would I look for further evidence that

12:11:46 8 it was based on the presence of a central punctate? Is

12:11:49 9 that what you're asking me.

12:11:51 10 Q I'm asking you if someone came in with a rash

12:11:53 11 that looked like it could be possibly an erythema migrans

12:11:56 12 rash --

12:11:57 13 A Would the presence --

12:11:58 14 Q -- would the presence of a central punctate be

12:12:02 15 something that you would look at and consider as part of

12:12:05 16 making a differential diagnosis of ruling in or out Lyme

12:12:10 17 disease?

12:12:10 18 A I think I would look at the appearance of the

12:12:12 19 rash and look at that more than I would the presence or an

12:12:16 20 absence of a punctate lesion in the center.

12:12:18 21 Q Are you saying you wouldn't look at the

12:12:20 22 presence -- please let me finish before you answer. Are

12:12:23 23 you saying you wouldn't look at the presence of or lack of

12:12:27 24 presence of a central punctate in this possible EM rash

12:12:32 25 when reaching your differential diagnosis, or are you



VC





1 Abemayor - Plaintiff - Direct 409

12:12:34 2 saying it's not very important?

12:12:38 3 THE COURT: Or something else.

12:12:39 4 Q Or something else?

12:12:40 5 A I'm saying that I look at -- I may note it, but

12:12:43 6 the presence of the rash is -- appearance of the rash is

12:12:47 7 of more importance to me than whether I see the punctate.

12:12:56 8 Q Okay. But it would be one of the things you

12:12:58 9 would consider in making or reaching a differential

12:13:02 10 diagnosis involving Lyme disease; is that correct?

12:13:05 11 A Possibly, yes.

12:13:15 12 Q Did you know before you saw Mr. Hanania that the

12:13:18 13 presence of a Lyme rash erythema migrans on a patient was

12:13:24 14 in and of itself, without the presence of any other signs

12:13:28 15 or symptoms that you would associate with Lyme disease, a

12:13:30 16 sufficient basis for diagnosing Lyme disease?

12:13:40 17 A Yes. I would look at, you know, the whole

12:13:45 18 picture, but if I see a rash that appears like erythema

12:13:50 19 migrans, then I would treat it without any serological

12:13:53 20 diagnosis, if that's what you are asking me.

12:13:56 21 MR. MAURER: No. I move to strike the

12:14:05 22 latter as not responsive. I got a yes, which is

12:14:05 23 all the question call for.

12:14:05 24 THE COURT: I think it needed more -- it's

12:14:05 25 allowable.



VC





1 Abemayor - Plaintiff - Direct 410

12:14:05 2 Q Do you recall at your examination before trial,

12:14:08 3 page 37, line 4 -- I'll withdraw that. At the time you

12:14:40 4 saw Mr. Hanania, generally speaking, I'm asking a

12:14:45 5 knowledge question now, okay, on and before that date, if

12:14:48 6 clinically you thought, based only upon the appearance of

12:14:52 7 a rash and the patient's clinical picture and history and

12:14:58 8 physical examination, if you had a high index of suspicion

12:15:00 9 that the patient had Lyme disease, is it fair to say that

12:15:05 10 you would have possibly treated the patient for Lyme

12:15:08 11 disease even without doing a Lyme test such as analyzer?

12:15:14 12 A Yes.

12:15:24 13 Q And, would you agree that as far as what you

12:15:31 14 knew back on the date you saw Mr. Hanania, that a

12:15:37 15 physician practicing where you practiced medicine at the

12:15:40 16 time should have a high index of suspicion for Lyme

12:15:45 17 disease if there was a history of possible exposure to an

12:15:50 18 infected deer tick and the presence of a rash which may

12:16:01 19 look like an EM rash?

12:16:07 20 A I'm sorry. Can you repeat the question for me?

12:16:10 21 MR. MAURER: Could the reporter please read

12:16:11 22 it back?

12:16:12 23 THE COURT: Yes.

12:16:42 24 (Whereupon the reporter read back the last question.)

12:16:42 25 THE COURT: With all those things packaged



VC





1 Abemayor - Plaintiff - Direct 411

12:16:45 2 together.

12:16:45 3 A There was a lot of ifs. Anyone in the area I

12:16:50 4 have to consider Lyme disease. If I looked at a rash and

12:16:53 5 it looked like it was an erythema migrans rash and the

12:16:58 6 history went along with it being possible Lyme disease, I

12:17:02 7 would -- I would consider it and treat people -- treat

12:17:06 8 someone without any kind of blood work, just on the

12:17:08 9 appearance, given where we live.

12:17:14 10 Q Did you consider yourself qualified as an

12:17:15 11 internist to determine if someone had a Lyme rash as of

12:17:19 12 the date you saw Mr. Hanania?

12:17:22 13 A Yes.

12:17:27 14 Q Did you consult any medical books or literature

12:17:30 15 on June 4, 1994 before making a determination as to

12:17:35 16 whether or not Mr. Hanania had a Lyme rash?

12:17:39 17 A No, I didn't.

12:17:45 18 Q Did you know, when you saw Mr. Hanania, that a

12:17:48 19 patient could go from stage one to stage-two Lyme disease

12:17:52 20 with early dissemination within days to weeks after being

12:17:56 21 bitten by an infected deer tick?

12:18:00 22 A Weeks, yes. Early.

12:18:06 23 Q And did you know, when you saw Mr. Hanania, that

12:18:09 24 Lyme disease in the first stage is generally considered to

12:18:12 25 be a disease that could be treated, effectively cured,



VC





1 Abemayor - Plaintiff - Direct 412

12:18:17 2 with antibiotics appropriate for treating Lyme disease?

12:18:21 3 A Yes.

12:18:23 4 Q And did you know that if you treat a Lyme

12:18:27 5 disease patient who has first-stage disease with an

12:18:30 6 appropriate antibiotic for an appropriate length of time,

12:18:33 7 that there's a small chance that the patient would go onto

12:18:37 8 develop Lyme meningitis?

12:18:39 9 A Yes.

12:18:39 10 Q Same question with regard to a facial paralysis?

12:18:44 11 A Yes.

12:18:49 12 Q And, did you know that doctors treated

12:18:54 13 first-stage Lyme disease generally for anywhere between

12:18:57 14 two and four weeks when you saw Mr. Hanania?

12:19:00 15 A Yes.

12:19:01 16 Q And was it your practice to actually treat for

12:19:04 17 four weeks, the longer end of that range?

12:19:08 18 A Yes, it was and it still is.

12:19:13 19 Q And did you know that Lyme disease is more

12:19:15 20 difficult to treat once a patient has disseminated

12:19:18 21 disease?

12:19:21 22 A It may be in some situations. Early

12:19:24 23 disseminated can also be treated with early antibiotics,

12:19:28 24 but it can be more difficult in that in certain instances

12:19:30 25 intravenous antibiotics need to be used.



VC





1 Abemayor - Plaintiff - Direct 413

12:19:34 2 Q Did you know when you saw Mr. Hanania that the

12:19:37 3 bacteria that causes Lyme disease, a spirochetal organism,

12:19:43 4 is similar in many ways to the spirochetal organism that

12:19:48 5 causes syphilis?

12:19:49 6 A It is in the same class, yes, as is Rocky

12:19:52 7 Mountain Fever and other infections that we can get.

12:19:54 8 Q Did you know that if that spirochetal organism

12:19:58 9 that causes Lyme disease penetrates the protected

12:20:01 10 blood-brain barrier, gets into the brain, that it becomes

12:20:05 11 much more difficult to treat the patient and cure the

12:20:07 12 patient than if the patient had to be treated in the early

12:20:10 13 stage of Lyme?

12:20:13 14 A You're talking about early disseminated or late

12:20:16 15 Lyme disease?

12:20:18 16 Q I'm talking about comparing when a patient has

12:20:21 17 meningitis, Lyme meningitis, an infection involving the

12:20:26 18 meninges of the brain, versus treating them in early stage

12:20:30 19 Lyme disease?

12:20:31 20 A Well, the meninges involves the layer of the

12:20:42 21 brain outside the brain. Within the brain you're talking

12:20:42 22 about brain tissue, so with meningitis and Lyme disease

12:20:42 23 it's not actually in the brain matter, it's in the layers

12:20:45 24 outside the brain.

12:20:46 25 Q And actually Lyme disease bacteria can get into



VC





1 Abemayor - Plaintiff - Direct 414

12:20:48 2 the brain itself; correct, get below the outer tissues?

12:20:52 3 A Yes. If it's not treated it can progress

12:20:55 4 into -- into the brain tissue.

12:20:57 5 Q And you knew when saw you Mr. Hanania that it

12:21:00 6 would be a lot more difficult to treat Lyme disease that

12:21:04 7 got into the brain tissue than if you treated it in the

12:21:08 8 first stage of Lyme disease --

12:21:10 9 A Yes.

12:21:11 10 Q -- where it hadn't disseminated yet?

12:21:18 11 A Can you say that again, please? The two

12:21:21 12 questions that you kind of put together.

12:21:24 13 Q What I'm saying is did you know, when you saw

12:21:27 14 Mr. Hanania, that it's a lot easier to treat a patient

12:21:30 15 with first-stage Lyme disease which has not disseminated

12:21:33 16 beyond the local skin rash area versus treating someone

12:21:39 17 who's got the bacteria from -- that causes Lyme in their

12:21:41 18 brain tissue?

12:21:43 19 A Yes.

12:21:55 20 Q Prior to the time that you saw Mr. Hanania, did

12:21:57 21 you ever have any occasions when a patient would come into

12:22:01 22 you and you would have to make a differential diagnosis,

12:22:03 23 ruling in or out different possible conditions that could

12:22:07 24 explain the patient's clinical picture?

12:22:11 25 A Yes. Everyday.



VC





1 Abemayor - Plaintiff - Direct 415

12:22:12 2 Q And, did you ever have occasion where you

12:22:14 3 weren't sure which was the correct condition to diagnose,

12:22:19 4 so that you would have to consider more than one as a

12:22:23 5 possible diagnosis?

12:22:28 6 A I weigh the possibilities and I -- I make a

12:22:33 7 diagnosis based on a history and a physical.

12:22:36 8 Q My question is did you ever have a situation

12:22:39 9 where you were not sure which was the correct diagnosis of

12:22:43 10 two possible ones you were considering in your

12:22:46 11 differential diagnosis?

12:22:48 12 A Yes.

12:22:49 13 Q And, in any of those instances, prior to the

12:22:52 14 date you saw Mr. Hanania, did you ever have occasion to

12:22:57 15 treat such a patient who had two possible diagnoses and

12:23:02 16 you weren't sure which one was the correct diagnosis, to

12:23:07 17 treat such a patient with an antibiotic that would cover

12:23:10 18 the bases, that would cover both possible diagnoses?

12:23:23 19 A My answer is yes. I'm trying to think of an

12:23:25 20 example, but, yes.

12:23:28 21 Q Okay. Would you agree that having knowledge of

12:23:39 22 the history of a patient who you saw in urgent care visit

12:23:46 23 back in June 1994, and knowing what the patient's

12:23:49 24 immediate history was within the previous days to week,

12:23:53 25 was an important part of conducting your clinical



VC





1 Abemayor - Plaintiff - Direct 416

12:23:56 2 examination of the patient?

12:24:00 3 A It's my practice to always ask patients, you

12:24:03 4 know, why they're in the office, so you would get that

12:24:07 5 information from the patient.

12:24:08 6 Q Would you agree -- I'm sorry, I didn't mean to

12:24:11 7 cut you off. Would you agree that having that information

12:24:15 8 is an important part of what you would look to gather in

12:24:19 9 information in evaluating the patient?

12:24:21 10 A Yes.

12:24:22 11 Q And, isn't it true that prior to the day you saw

12:24:28 12 Mr. Hanania, when you would see patients in urgent care

12:24:34 13 visits, that you not -- you did not always have the full

12:24:38 14 chart for patients given to you to review when evaluating

12:24:42 15 the patient?

12:24:45 16 A Yes, that would happen on occasion.

12:24:48 17 Q And, in fact, isn't it true that you don't know

12:24:52 18 if you had Mr. Hanania's chart available to look at on

12:24:57 19 6/4/94 when you evaluated him and decided on what course

12:25:01 20 of treatment to take; is that correct?

12:25:06 21 A Had I felt it was urgent and imperative for me

12:25:10 22 to have --

12:25:11 23 MR. MAURER: Object, your Honor. I'd ask

12:25:12 24 that -- this is capable of an answer, yes or no.

12:25:15 25 THE COURT: If it's correct or not, and



VC





1 Abemayor - Plaintiff - Direct 417

12:25:16 2 then go onto another question, or your

12:25:18 3 counsel --

12:25:18 4 A Yes. Say the question again. Let me just --

12:25:21 5 MR. MAURER: Would the reporter be kind

12:25:22 6 enough to read it back?

12:25:42 7 (Whereupon the reporter read back the last question.)

12:25:50 8 A That's true, yes.

12:25:54 9 Q In fact, in your experience, working at CHP

12:25:58 10 before you saw Mr. Hanania, isn't it true that when a

12:26:01 11 patient would come in for urgent care, after having been

12:26:04 12 there a day or two before, it was your experience that the

12:26:07 13 chart was not always in the slot where the chart should

12:26:10 14 be?

12:26:12 15 A Yes.

12:26:15 16 Q And when that would happen, isn't it true that

12:26:17 17 your standard practice was to just write on a new progress

12:26:21 18 note?

12:26:23 19 A If I felt I needed the chart --

12:26:27 20 Q I would ask that you just answer the question

12:26:29 21 yes or no, if you're capable of doing so, ma'am.

12:26:34 22 A If I didn't have the chart I would write on a

12:26:36 23 progress note.

12:26:38 24 Q A new sheet?

12:26:39 25 A Yes.



VC





1 Abemayor - Plaintiff - Direct 418

12:26:40 2 MR. MAURER: Okay. May I approach the

12:26:58 3 witness?

12:27:03 4 Q Doctor, I'm going to show you the CHP chart for

12:27:15 5 Mr. Hanania that's in evidence as exhibit one. You've

12:27:15 6 seen this before; correct?

12:27:15 7 A Yes.

12:27:15 8 Q More than one occasion; correct?

12:27:15 9 A Well, I saw it since this -- this all began in

12:27:21 10 terms of my being -- from my attorney has shown me the

12:27:24 11 chart. I've seen it in his office.

12:27:26 12 Q So you've seen it since the lawsuit started?

12:27:28 13 A Yes.

12:27:30 14 Q Do you see the note entry dated 6/3/94?

12:27:34 15 A Yes.

12:27:35 16 Q And that has an exhibit tag of exhibit 1A dated

12:27:39 17 9/18/97. On the back side of that sheet there's nothing

12:27:43 18 written on that sheet; is that correct?

12:27:45 19 A That's correct.

12:27:48 20 Q And do you see a separate sheet of paper that on

12:27:52 21 the back side of it has plaintiff's exhibit 1B dated

12:27:55 22 9/18/97?

12:27:58 23 A Yes.

12:27:59 24 Q And on the reverse side of where that tag --

12:28:01 25 exhibit tag is is a date 6/4/94, and it's stamped in red



VC





1 Abemayor - Plaintiff - Direct 419

12:28:07 2 "Urgent visit;" is that right?

12:28:09 3 A Yes.

12:28:09 4 Q And, does this side of the page that I'm

12:28:12 5 referring to that has 6/4/94 and "Urgent visit," contain

12:28:17 6 notations you made pertaining to your evaluation of Mr.

12:28:21 7 Hanania on 6/4/94?

12:28:23 8 A Yes.

12:28:23 9 Q And based upon what you see here of the 6/3

12:28:28 10 chart entry on one page, and the back page being empty,

12:28:31 11 and the fact that your chart entry is on a separate sheet,

12:28:35 12 is it reasonable for us to conclude that you did not see

12:28:39 13 the 6/3/94 chart entry on the day you saw Mr. Hanania and

12:28:44 14 made your own chart entry on 6/4/94?

12:28:48 15 A Most likely that's true.

12:28:50 16 Q Okay. Did you ask anybody to find the chart for

12:28:56 17 you when you saw Mr. Hanania?

12:28:58 18 A I don't recall.

12:29:00 19 Q Is it something that you should have done, given

12:29:03 20 your usual practice?

12:29:05 21 A You know, in a situation -- if someone came into

12:29:08 22 the office with crushing chest pain and I needed to

12:29:11 23 compare an EKG, I would have made sure that I got the old

12:29:15 24 record. In this situation I don't know that I would have

12:29:18 25 searched for it, because he was able to talk to me and I



VC





1 Abemayor - Plaintiff - Direct 420

12:29:22 2 didn't feel that -- I don't think I would have felt that

12:29:25 3 it was crucial for me to have the whole chart at that

12:29:28 4 time.

12:29:30 5 THE COURT: At this point we'll take lunch.

12:29:32 6 That's crucial, I think. Remember, do not

12:29:35 7 discuss the case among yourselves or with anyone

12:29:38 8 else.

12:30:07 9 (Whereupon there was a luncheon recess.)

14:06:52 10 (The following takes place in the presence of the jury.)

14:13:36 11 THE COURT: Good afternoon.

14:13:40 12 MR. MAURER: Doctor, would you please take

14:13:41 13 the stand again?

14:13:59 14 THE CLERK: The witness is reminded she's

14:14:00 15 still under oath.

14:14:07 16 Q Good afternoon, Doctor. Based upon your

14:14:13 17 knowledge of the way medical records for patients were

14:14:16 18 kept at CHP, would you expect that Dr. Jankowski would

14:14:28 19 have most likely seen your 6/4/94 chart entry for Mr.

14:14:32 20 Hanania when she saw him on June 30, 1994?

14:14:38 21 MR. LEWIS: Objection.

14:14:41 22 THE COURT: How she would have noticed?

14:14:45 23 MR. MAURER: Based upon her knowledge of

14:14:46 24 how medical records for patients were kept at

14:14:49 25 CHP.



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1 Abemayor - Plaintiff - Direct 421

14:14:51 2 THE COURT: Was there a general way in

14:14:52 3 which they were kept?

14:14:56 4 THE WITNESS: Can I open the chart?

14:14:58 5 THE COURT: You can look at it and tell us.

14:15:12 6 A My assumption is that she had the chart either

14:15:18 7 at the time she saw Mr. Hanania or immediately after,

14:15:25 8 because her note is written on the back of my note. So,

14:15:30 9 it's on the same piece of paper, so she probably --

14:15:35 10 probably had it, although I can't tell you for sure. She

14:15:39 11 may have just had my sheet, but most likely she had the

14:15:42 12 whole chart.

14:15:47 13 Q On and before the date that you saw Mr. Hanania,

14:15:52 14 if a -- generally speaking, if a patient came in for an

14:15:56 15 urgent care visit two days in a row, would you consider

14:16:00 16 that piece of information as something significant enough

14:16:05 17 to include in the history that you were taking and

14:16:11 18 considering when evaluating the patient on the second day?

14:16:17 19 A It would be part of the history that I would

14:16:19 20 take, yes.

14:16:22 21 Q And you would consider that as part of your

14:16:24 22 evaluation?

14:16:26 23 A Yes.

14:16:36 24 Q Now, based on what you've told us before trial,

14:16:40 25 would I be correct that you have some recollection of



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1 Abemayor - Plaintiff - Direct 422

14:16:43 2 seeing Mr. Hanania on June 4, 1994?

14:16:46 3 A Yes, I do.

14:16:48 4 Q Specifically, you recall his general appearance?

14:16:53 5 A Only in a general sense, but I do recall his

14:16:59 6 general appearance in that he was dark-haired, small, slim

14:17:07 7 build. Beyond that, I had no recollection of his physical

14:17:13 8 appearance.

14:17:13 9 Q Do you have any recollection of anything else

14:17:15 10 that took place during that specific examination of Mr.

14:17:21 11 Hanania on June 4, 1994?

14:17:24 12 A Yes.

14:17:25 13 Q What do you recall, independent of what you

14:17:27 14 wrote in the chart?

14:17:30 15 A I remember the encounter, really, because of --

14:17:38 16 it was unusual in the way he kind of came in with his

14:17:44 17 complaint. He -- I recall that he told me he had a rash,

14:17:50 18 and that he had discussed this rash with a

14:17:54 19 physician-relative, and I don't -- I don't recall if he

14:17:59 20 told me more than that, but it was a physician-relative,

14:18:02 21 and that he was insistent that he -- he and his relative

14:18:09 22 were concerned that this was an abscess, and he wanted

14:18:14 23 this evaluated as such. So, that's really what I -- I

14:18:19 24 think what makes me remember him, was basically was that

14:18:24 25 encounter in terms of what he was requesting and his



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1 Abemayor - Plaintiff - Direct 423

14:18:29 2 concern for what was going on with him.

14:18:32 3 Q Since you mentioned abscess, what's your

14:18:35 4 understanding of what an abscess is in laymen's terms?

14:18:40 5 A An abscess is a collection of pus.

14:18:46 6 Q And is it normally associated with some type of

14:18:49 7 infection in the skin?

14:18:51 8 A It can be in the skin. You can have an abscess

14:18:56 9 in the belly, an abscess in your tooth, but an infection

14:19:02 10 where there is pus contained within a cavity.

14:19:07 11 Q And, would I be correct that you, in fact, had a

14:19:13 12 surgeon, a female surgeon from the CHP group, come in and

14:19:19 13 stick a needle into the rash to aspirate the rash to see

14:19:22 14 if she could draw out any pus?

14:19:25 15 A I called a surgeon in to evaluate the lesion to

14:19:29 16 see whether she felt this was something that should be

14:19:33 17 aspirated, to make an independent evaluation of the

14:19:37 18 rash -- of this lesion on his chest.

14:19:40 19 Q Did she aspirate the rash with a needle?

14:19:43 20 A She put a needle into the -- into the lesion and

14:19:48 21 attempted to draw out pus, but was unable to draw out any

14:19:53 22 pus.

14:19:53 23 Q And what conclusion, if any, did you draw as a

14:19:56 24 result of her not drawing out any pus at that time?

14:20:01 25 A That this lesion at this point in time did not



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1 Abemayor - Plaintiff - Direct 424

14:20:04 2 contain pus. That doesn't tell me that a day from now

14:20:12 3 there may not be pus. Initially when you get a pimple,

14:20:15 4 pus doesn't necessarily come out the first day. Sometimes

14:20:17 5 by the second day the pus comes out. So, it basically

14:20:21 6 told me that at this point in time there was no pus.

14:20:24 7 Q Do you recall anything else about your meeting

14:20:27 8 with Mr. Hanania in terms of either what you observed of

14:20:31 9 his appearance or his rash or what he said to you?

14:20:42 10 A That -- that's pretty much my recollection.

14:20:43 11 Other -- other information is really what I see in the

14:20:47 12 chart.

14:20:48 13 Q Okay. And would it be fair to say that what you

14:20:51 14 noted in the chart would be more accurate than your

14:20:54 15 recollection of what he told you is today?

14:21:02 16 A I have I think a vague recollection, but, for

14:21:05 17 the most part it's from the chart. I do on some level

14:21:09 18 remember the appearance of this lesion in a vague sense,

14:21:13 19 but, my greatest recollection of him is basically that

14:21:18 20 encounter, and I think that's what -- why I remember him

14:21:22 21 as opposed to other patients who come in with the many

14:21:26 22 rashes that I see.

14:21:30 23 Q Now, your 6/4/94 note in the chart, do you have

14:21:36 24 it in front of you?

14:21:38 25 A Yes.



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1 Abemayor - Plaintiff - Direct 425

14:21:38 2 Q Okay. Would I be correct that you indicated in

14:21:42 3 the chart, either you or someone else at CHP, indicated

14:21:46 4 that it was an urgent visit?

14:21:48 5 A Yes.

14:21:49 6 Q Who noted that?

14:21:50 7 A Generally that was stamped by one of the

14:21:53 8 receptionists when the patient came into the office before

14:21:58 9 he would have seen me.

14:22:00 10 Q And did you or someone else at CHP note on

14:22:04 11 6/4/94 that Mr. Hanania had been seen in urgent visit

14:22:12 12 yesterday?

14:22:13 13 A I wrote that.

14:22:16 14 Q And that he was treated with Duricef?

14:22:19 15 A Yes.

14:22:19 16 Q You wrote that, too?

14:22:21 17 A That was part of the history that I elicited

14:22:23 18 from him.

14:22:24 19 Q All right. And, did you also note that Mr.

14:22:27 20 Hanania denies a bite?

14:22:30 21 A Yes.

14:22:32 22 Q Okay. Based upon Mr. Hanania denying a bite,

14:22:36 23 did you put out of your mind the likelihood that he had

14:22:39 24 Lyme disease?

14:22:41 25 A No.



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1 Abemayor - Plaintiff - Direct 426

14:22:45 2 Q Did you see a central punctate that day?

14:22:48 3 A I did not.

14:22:53 4 Q Had you seen the chart entry from Ms. Kobel from

14:23:00 5 the previous day and seen that she had noted that there

14:23:03 6 was a central punctate present just the day before you saw

14:23:06 7 Mr. Hanania, would you have considered that to be a

14:23:10 8 significant piece of information in making your own

14:23:13 9 differential diagnosis?

14:23:16 10 A I don't -- I don't think so, because you can see

14:23:21 11 the punctate lesion with other bites besides tick bites,

14:23:25 12 and I think I would have -- probably would have actually

14:23:28 13 made me think more that maybe he had an insect bite

14:23:33 14 without realizing it. Its presence or absence I don't

14:23:36 15 think affected my diagnosis.

14:23:40 16 Q Well, was -- you made a picture of the rash in

14:23:44 17 the chart on your 6/4 visit; is that correct?

18 A Yes.

14:23:49 19 Q And in that particular picture you actually drew

14:23:52 20 a series of dots in the center part of the rash; right?

14:23:56 21 A Yes.

14:23:56 22 Q And were those dots supposed -- the way you drew

14:24:00 23 those dots in your mind, were these consistent with a tick

14:24:05 24 bite or consistent with possibly multiple insect bites?

14:24:12 25 A I thought that this was most likely a spider



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1 Abemayor - Plaintiff - Direct 427

14:24:17 2 bite. I saw small nodules within a raised hard area, and

14:24:22 3 I thought it was most consistent with a spider bite. I

14:24:27 4 really did not look at this lesion and think it was

14:24:32 5 typical of erythema migrans.

14:24:35 6 Q Now, when you are considering in your

14:24:42 7 differential diagnosis that a patient may have an erythema

14:24:48 8 migrans Lyme rash and may be suffering from Lyme disease,

14:24:53 9 in fact, you did that in this case, didn't you?

14:24:57 10 A Excuse me?

14:24:58 11 Q Did you consider the fact that Mr. Hanania may

14:25:00 12 have Lyme disease?

14:25:02 13 A As I said earlier, anytime I see an erythematous

14:25:05 14 rash, any rash, it is a consideration based on where we

14:25:08 15 live, regardless of history of the patient.

14:25:11 16 Q Did you consider it in Mr. Hanania's case when

14:25:14 17 you saw him? Yes or no, ma'am?

14:25:16 18 A I considered it, but I did not feel that it was

14:25:19 19 likely.

14:25:22 20 Q When you are considering the possibility that a

14:25:26 21 patient may have a Lyme disease rash, even if it is not

14:25:29 22 what you would consider to be a typical Lyme rash, is it

14:25:36 23 important for you to do anything as a precaution to make

14:25:43 24 sure that you're not mistaken, such as draw a line around

14:25:47 25 the outside border of the rash to see if it's expanding,



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1 Abemayor - Plaintiff - Direct 428

14:25:50 2 like a Lyme rash might expand?

14:25:55 3 A I'm -- you're -- I actually -- myself and the

14:25:59 4 surgeon actually did draw a line around the rash, so I'm

14:26:03 5 not sure what you're asking me.

14:26:04 6 Q I'm asking you if that would be your standard

14:26:06 7 procedure to do that, like you did in Mr. Hanania's case,

14:26:10 8 as you're saying.

14:26:11 9 A I opted to draw the line because I saw him on a

14:26:15 10 Saturday, and the next day CHP was not open and I was

14:26:20 11 concerned in terms of his symptoms and the rash, and I

14:26:29 12 wanted anyone else who might look at it to be able to see

14:26:29 13 what it had looked like the day I had saw him.

14:26:32 14 Q You wanted to document in your own way on Mr.

14:26:33 15 Hanania's body the size of the rash so that if it expanded

14:26:38 16 someone would know about it; if they saw it they'd be able

14:26:41 17 to see it had grown?

14:26:43 18 A Right, or if it didn't improve, yes.

14:26:45 19 Q So, the expansion of the rash was a significant

14:26:48 20 piece of information in the evaluation of Mr. Hanania;

14:26:52 21 true?

14:26:54 22 A I felt it was important for anyone who may

14:26:56 23 evaluate the rash the next day, and, in fact, for him to

14:27:00 24 know that should it change or not improve that he -- he

14:27:04 25 should seek medical attention.



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1 Abemayor - Plaintiff - Direct 429

14:27:09 2 Q Did you consider the fact that the rash may

14:27:13 3 expand to be a significant piece of information to be

14:27:16 4 considered in diagnosing and treating Mr. Hanania when you

14:27:20 5 saw him? Yes or no, ma'am?

14:27:23 6 MR. LEWIS: Judge, hasn't that been asked

14:27:25 7 and answered a few times?

14:27:26 8 THE COURT: No. I think -- can you answer

14:27:28 9 that yes or no? Did you consider --

14:27:32 10 A I considered it as I would an allergic reaction

14:27:35 11 to a bee -- to -- a bee sting might enlarge, a cellulitis

14:27:40 12 may enlarge, a Lyme rash may enlarge. It is a piece of

14:27:44 13 information that I consider as part of a whole picture.

14:27:46 14 But, that of itself is not sufficient to make me think

14:27:50 15 that Mr. Hanania had Lyme disease when I did see him.

14:27:57 16 Q You didn't make any entry in the chart about the

14:28:04 17 rash expanding, did you?

14:28:07 18 A I did. "Complaining of growing rash." And

14:28:14 19 that's the first three words -- four words in my entry.

14:28:19 20 Q Now, what did you do to confirm that the rash

14:28:22 21 was growing, if anything, other than to draw a line around

14:28:25 22 it for the benefit of someone else who might see him

14:28:27 23 afterwards? Did you do anything else to confirm that the

14:28:30 24 rash was growing?

14:28:32 25 A I took him at his word that it was growing.



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1 Abemayor - Plaintiff - Direct 430

14:28:35 2 Q Did you measure the rash to get the dimensions

14:28:37 3 of the rash so that there could be a comparison between

14:28:40 4 what the rash was the previous day and what you were

14:28:43 5 observing that day?

14:28:45 6 A I did not have the record from the previous day

14:28:48 7 and, as I said, it was Saturday when I saw Mr. Hanania.

14:28:53 8 Sunday CHP is closed, there's no one in the office, and my

14:28:57 9 concern at that time was that --

14:28:59 10 MR. MAURER: Your Honor, I move to strike

14:29:01 11 as not responsive. Way beyond what I asked.

14:29:04 12 THE COURT: It's repetitive. Not to

14:29:06 13 strike, but I think that's a sufficient answer.

14:29:09 14 Q So, you did not know how much the rash had

14:29:11 15 expanded or grown from the time that Ms. Kobel noted the

14:29:16 16 size of the rash to the approximately three centimeters

14:29:20 17 the day before until the time that you saw him; is that

14:29:23 18 correct?

14:29:25 19 A I didn't know exactly, yes, that is correct.

14:29:29 20 Q Well, did you even have an approximation of how

14:29:32 21 much it had grown?

14:29:35 22 A My assumption was that it had grown sufficiently

14:29:41 23 to alarm him and his family that this was not -- this was

14:29:47 24 something of concern.

14:29:49 25 Q Did you know if it had grown to double its size?



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1 Abemayor - Plaintiff - Direct 431

14:29:54 2 Did you know if it had grown from an inch to three inches

14:29:57 3 or an inch to five inches? Did you have any sense of how

14:30:01 4 much it had grown, other than what you just said?

14:30:04 5 A No. I've -- what I've said is my concern was it

14:30:07 6 was a growing rash, and as he was concerned about the

14:30:10 7 possibility of abscess, infection, so was I.

14:30:14 8 MR. MAURER: Well, your Honor, I move to

14:30:15 9 strike as not responsive.

14:30:16 10 THE COURT: All right.

14:30:17 11 MR. MAURER: We got that already, and it

14:30:18 12 wasn't what I asked.

14:30:19 13 MR. LEWIS: Judge --

14:30:20 14 THE COURT: All right, counsel. All right.

14:30:21 15 We'll go on.

14:30:27 16 Q Now, would I be correct that you did a physical

14:30:32 17 examination and found that Mr. Hanania had a temperature

14:30:35 18 of 100.9?

14:30:37 19 A Yes.

14:30:37 20 Q And was that considered to be an elevated

14:30:40 21 temperature?

14:30:41 22 A It's -- yes. It's a --

14:30:45 23 Q And was that elevated temperature of 100.9 a

14:30:49 24 symptom that could be consistent with the first phase, the

14:30:53 25 acute phase of Lyme disease?



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1 Abemayor - Plaintiff - Direct 432

14:30:56 2 A You can have low grade fevers with early Lyme

14:31:01 3 disease, as you can with cellulitis and other illnesses.

14:31:08 4 Q And, in your examination, would I be correct

14:31:12 5 that you also were able to palpate or feel in the left

14:31:16 6 axillary node the lymph node was swollen?

14:31:22 7 A Yes.

14:31:23 8 Q And would I be correct that that was, as far as

14:31:26 9 you were concerned when you saw it, evidence of a -- Mr.

14:31:34 10 Hanania's body trying to fight an infection which was

14:31:37 11 spreading?

14:31:39 12 A Yes.

14:31:43 13 Q And would I be correct that when you saw Mr.

14:31:47 14 Hanania on that date, that you knew that the presence of a

14:32:00 15 palpable or swollen left axillary lymph node is something

14:32:00 16 that can be seen in patients with the first stage or other

14:32:02 17 stages of Lyme disease; is that correct?

14:32:03 18 A Yes, but rarely.

14:32:05 19 Q Thank you. The mere fact that a patient has a

14:32:17 20 swollen lymph node did not mean to you, when you saw Mr.

14:32:21 21 Hanania, that he had disseminated disease; correct?

14:32:28 22 A My concern was that he had an infection that

14:32:32 23 was -- he had fever, he had a growing lesion, he had an

14:32:37 24 infection and I was concerned about infection,

14:32:39 25 specifically cellulitis.



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1 Abemayor - Plaintiff - Direct 433

14:32:42 2 Q That's not what I asked, ma'am. I'm asking you

14:32:44 3 if when you saw Mr. Hanania did the mere presence of the

14:32:48 4 swollen lymph node mean to you that he had an infection

14:32:52 5 that had spread?

14:32:54 6 MR. LEWIS: That's not the question he just

14:32:55 7 asked, Judge.

14:32:56 8 MR. MAURER: Well, I'm sorry. Let me look

14:32:58 9 at my note again. Oh, I used the word

14:33:04 10 "disseminated" in the first question.

14:33:06 11 Q Does that mean the same thing? Did you

14:33:08 12 understand me to mean spread versus disseminated?

14:33:11 13 MR. LEWIS: It's a different context in --

14:33:13 14 when we are talking about Lyme disease in

14:33:15 15 dissemination, Judge, from an infection. That's

14:33:18 16 why I was objecting to the change.

14:33:19 17 MR. MAURER: I'll rephrase the question.

14:33:21 18 Q Doctor, when you saw Mr. Hanania and you saw

14:33:23 19 that he had a swollen lymph node under his arm, did you

14:33:26 20 conclude outright that that meant he had a disseminated

14:33:29 21 infection? Yes or no?

14:33:33 22 A I can't answer that question with -- the way

14:33:37 23 you're wording it. I'm having trouble with the term

14:33:41 24 dissemination. I kind of think of dissemination as a

14:33:45 25 general spreading to lots of areas, and at this point in



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1 Abemayor - Plaintiff - Direct 434

14:33:47 2 time I felt the infection had spread from the skin area to

14:33:51 3 the lymph node.

14:34:02 4 Q Would I be correct that when you saw Mr. Hanania

14:34:09 5 you were of the belief that the mere fact that a rash is

14:34:14 6 indurated or firm would not, by itself, cause you to rule

14:34:18 7 in or rule out Lyme disease as a proper diagnosis in a

14:34:22 8 patient?

14:34:23 9 A Yes.

14:34:29 10 Q But you would note that the rash was indurated

14:34:33 11 in making your final assessment, would be something you'd

14:34:37 12 consider?

14:34:37 13 A Yes.

14:34:43 14 Q And, when you saw Mr. Hanania, did you believe

14:34:47 15 that Lyme rashes generally aren't vesicular or blistery?

14:34:54 16 A Generally.

14:34:55 17 Q But that spider bites may be blistery or

14:34:58 18 vesicular?

14:35:00 19 A Yes.

14:35:02 20 Q So what you are saying is a Lyme disease rash,

14:35:04 21 you -- withdrawn. So you're saying, when you saw Mr.

14:35:07 22 Hanania, you knew that a Lyme disease rash could be

14:35:11 23 vesicular, although not normally so; is that true?

14:35:15 24 A It's -- it's unusual.

14:35:35 25 Q By the way, CHP didn't have an office manager



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1 Abemayor - Plaintiff - Direct 435

14:35:41 2 when you saw Mr. Hanania who was in charge of maintaining

14:35:45 3 the medical records for patients; is that correct?

14:35:48 4 A There was an individual who was in charge of

14:35:51 5 medical records, but their title was not office manager.

14:35:58 6 Q Did you ever complain before the day you saw Mr.

14:36:01 7 Hanania to that individual about the fact that there were

14:36:04 8 occasions when you wouldn't be given the whole chart on an

14:36:07 9 individual who had been recently seen in urgent care?

14:36:12 10 A I would -- I would complain -- I would grumble

14:36:19 11 to myself in situations where I needed the chart, you

14:36:24 12 know, for, as I mentioned before, if someone was having

14:36:26 13 chest pains to be able to compare an EKG or if I was doing

14:36:31 14 an emergency medical clearance and I needed more detail as

14:36:33 15 to their history. I would grumble to myself, I might go

14:36:36 16 and grumble and complain about it, but most of the times,

14:36:39 17 with a little bit extra time and effort myself, going to

14:36:42 18 medical records or having one of the assistants go to

14:36:45 19 medical records, almost always we're able to locate the

14:36:49 20 chart, so, I would probably grumble more about the --

14:36:56 21 having to spend the energy until I'm looking, but --

14:37:01 22 Q But in most cases you could spend a little extra

14:37:03 23 time and you'd get the chart?

14:37:05 24 A Yes.

14:37:05 25 Q But you didn't do that when you saw Mr. Hanania;



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1 Abemayor - Plaintiff - Direct 436

14:37:08 2 correct? Yes or no?

14:37:09 3 A I did not do it, as I mentioned to you earlier.

14:37:12 4 Q Now, the medical director -- there was a medical

14:37:15 5 director at CHP; is that right --

14:37:18 6 A Yes.

14:37:18 7 Q -- when you saw Mr. Hanania? That was Dr.

14:37:22 8 Heisler?

14:37:22 9 A I believe he was the medical director at that

14:37:24 10 time.

14:37:28 11 Q Did you ever complain to Dr. Heisler about

14:37:32 12 medical records not always being available to you when you

14:37:35 13 would see someone?

14:37:36 14 MR. LEWIS: Relevance, Judge.

14:37:38 15 Q Prior to June 4, 1994?

14:37:48 16 THE COURT: Aren't we repeating, just

14:37:48 17 really, the information we just received?

14:37:48 18 A Dr. Heisler is a practicing -- in addition to

14:37:48 19 being medical director he was a practicing internist at

14:37:50 20 CHP, and his experience in terms of chart retrieval I

14:37:55 21 would assume were identical to mine, so, we may have

14:37:58 22 mentioned it to each other at times --

14:38:01 23 Q But you don't think he needed to be told by you

14:38:05 24 because you think he would have known himself from his own

14:38:08 25 working there?



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1 Abemayor - Plaintiff - Direct 437

14:38:08 2 A We most often were able to get the charts when

14:38:12 3 we needed them in a situation, as I described earlier.

14:38:23 4 Q Now, was it your practice, when taking a history

14:38:26 5 from a patient such as Mr. Hanania, to ask them if they

14:38:29 6 had any medical problems that you needed to know about?

14:38:34 7 A Yes, I generally did.

14:38:35 8 Q That was your standard practice?

14:38:37 9 A Yes.

14:38:39 10 Q Okay. Did you find out from Mr. Hanania on June

14:38:42 11 4, 1994 that he had a history of any gastroenterological

14:38:47 12 problems?

14:38:48 13 A My record doesn't show that I asked him the

14:38:51 14 question, so I --

14:38:52 15 Q Do you have any independent recollection?

14:38:54 16 A No, I don't. My practice --

14:38:56 17 Q Your record -- your record, your note entry has

14:38:59 18 no notation regarding any medical problems having to do

14:39:02 19 with his stomach or intestines; correct?

14:39:05 20 A Correct.

14:39:11 21 Q And, you're pretty compulsive about writing

14:39:17 22 notes and keeping thorough medical records, aren't you?

14:39:20 23 A In most situations, yes, but, you know,

14:39:24 24 sometimes in urgent visits, where there are a lot of

14:39:27 25 patients coming in, my notes may not have been complete as



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1 Abemayor - Plaintiff - Direct 438

14:39:30 2 they were on other occasions.

14:39:31 3 Q Well, since you're compulsive about keeping

14:39:35 4 complete records, wouldn't you go back after the visit and

14:39:37 5 add anything you need to add if you didn't have time to do

14:39:39 6 it after the visit?

14:39:41 7 A Not always.

14:39:54 8 Q Do you have any recollection of asking Mr.

14:39:55 9 Hanania if he had visited any locations where he might

14:39:58 10 have been bitten by a tick?

14:40:03 11 A I don't have a recollection other than saying he

14:40:07 12 denies a bite, so, but I don't have an independent

14:40:11 13 recollection.

14:40:15 14 Q But whether or not Mr. Hanania told you that he

14:40:19 15 had been somewhere in the woods where he could have been

14:40:23 16 bitten by a deer tick, is it fair to say that since you

14:40:26 17 knew where he lived you considered him at risk for

14:40:29 18 contracting Lyme disease when you saw him?

14:40:32 19 MR. LEWIS: Asked and answered, Judge, this

14:40:33 20 morning.

14:40:34 21 THE COURT: It has been, but, all right,

14:40:35 22 you want to answer it?

14:40:37 23 A Any patient living in this area with a rash,

14:40:41 24 Lyme disease has to be one of the considerations.

14:40:48 25 Q And, were you of the opinion, when you saw Mr.



VC





1 Abemayor - Plaintiff - Direct 439

14:40:51 2 Hanania, that Duricef was a good antibiotic to treat

14:40:56 3 cellulitis?

14:40:57 4 A Yes.

14:40:58 5 Q And is it also true that you were of the opinion

14:41:02 6 that Duricef was not a good medication for treating Lyme

14:41:07 7 disease?

14:41:07 8 A Yes.

14:41:07 9 Q And that was true on June 4, 1994?

14:41:10 10 A Yes.

14:41:16 11 Q And the time period that you treat cellulitis

14:41:19 12 with Duricef versus the appropriate time that you treat

14:41:22 13 first-stage Lyme disease with an appropriate antibiotic,

14:41:26 14 those time periods are different; correct?

14:41:28 15 A Generally, yes.

14:41:29 16 Q You treat Lyme disease for a longer period of

14:41:32 17 time?

14:41:32 18 A Yes.

14:41:33 19 Q And that's to make sure you eradicate the

14:41:35 20 bacteria?

14:41:36 21 A Yes.

14:41:43 22 Q And, by the way, if a rash that was caused by a

14:41:47 23 cellulitis condition was present three weeks after the

14:41:52 24 commencement of treatment with Duricef for an appropriate

14:41:57 25 period of time, that would be unusual in your experience



VC





1 Abemayor - Plaintiff - Direct 440

14:42:02 2 for that rash to, in fact, have been caused by the

14:42:04 3 cellulitis, wouldn't it?

14:42:06 4 MR. LEWIS: Judge, this has nothing to do

14:42:08 5 with this doctor's visit. It's irrelevant to

14:42:10 6 this doctor's visit. There's no complaints,

14:42:13 7 there's no history of that.

14:42:15 8 MR. MAURER: She works for CHP who is a

14:42:18 9 defendant in the case, and there are other

14:42:19 10 people would work there. There's another doctor

14:42:21 11 coming after Dr. Abemayor I'm going to be asking

14:42:23 12 about it, too.

14:42:24 13 MR. LEWIS: That's the appropriate person

14:42:25 14 to ask then, Judge. This is irrelevant to this

14:42:28 15 doctor.

14:42:29 16 THE COURT: I would sustain the objection.

14:42:35 17 THE WITNESS: What does that mean? I have

14:42:36 18 to answer it or I don't have to answer it?

14:42:39 19 THE COURT: No, you don't have to answer

14:42:40 20 it.

14:42:40 21 MR. LEWIS: No, you can't ask me. You have

14:42:42 22 to ask the Judge.

14:42:43 23 Q Dr. Abemayor, when you saw Mr. Hanania, isn't it

14:42:48 24 true that you knew that Erythromycin was an antibiotic

14:42:52 25 that could be used to treat cellulitis and also treat Lyme



VC





1 Abemayor - Plaintiff - Direct 441

14:42:57 2 disease, even when you thought it was a cellulitis and

14:43:02 3 didn't think it was probably Lyme?

14:43:13 4 A If --

14:43:13 5 Q Yes or no, Doctor? Didn't you know that?

14:43:13 6 A That it could be used to treat both?

14:43:13 7 Q Yes.

14:43:13 8 A Yes, I did know that. Not as an ideal drug,

14:43:18 9 but, it could be.

14:43:21 10 Q And, by the way, when you saw Mr. Hanania, you

14:43:25 11 were ruling out various causes -- I'm sorry, various

14:43:30 12 diagnoses such as a fungus?

14:43:33 13 A It is --

14:43:33 14 Q Did you rule out a fungus?

14:43:35 15 A When I look at the rash I consider different

14:43:40 16 things that can cause a similar-type rash.

14:43:43 17 Q Did you rule out a fungus, Doctor?

14:43:45 18 A I considered it and I felt the probability was

14:43:47 19 very low that he had a fungus, and, therefore, I chose not

14:43:50 20 to treat him with an antifungal.

14:43:53 21 Q Did you rule out contact dermatitis?

14:43:56 22 A Again, I looked at the rash, I thought the

14:43:58 23 likelihood that he had a contact dermatitis was very low,

14:44:02 24 and I opted not to treat him for a contact dermatitis.

14:44:06 25 Q Did you rule out an ingrown hair as the cause of



VC





1 Abemayor - Plaintiff - Direct 442

14:44:09 2 the rash?

14:44:09 3 A I looked at the rash. I didn't see an ingrown

14:44:12 4 hair. I thought it was unlikely, and I was treating him,

14:44:15 5 if it was an infection secondary to an ingrown hair I

14:44:19 6 would have covered it anyway, but I didn't think that that

14:44:22 7 was the etiology.

14:44:23 8 Q You also ruled out a scratch of the skin as a

14:44:25 9 possible cause of the condition; correct?

14:44:27 10 A Correct. I did not see a scratch.

14:44:29 11 Q And you also ruled out a local irritation of the

14:44:32 12 skin based upon your physical examination; is that

14:44:34 13 correct?

14:44:35 14 A I did not see a local irritation.

14:44:37 15 Q Is that correct? You ruled it out?

14:44:40 16 A By observation, yes.

14:44:50 17 Q So, based on your evaluation, your examination,

14:44:56 18 you concluded that Mr. Hanania had some sort of insect

14:45:00 19 bite that caused a cellulitis or skin infection; is that

14:45:04 20 correct?

14:45:04 21 A Yes.

14:45:28 22 Q I'm just trying to eliminate some questions.

14:45:31 23 THE COURT: That's always a good thing to

14:45:32 24 do.

14:45:40 25 Q By the way --



VC





1 Abemayor - Plaintiff - Direct 443

14:45:43 2 MR. MAURER: May I approach, your Honor?

14:45:44 3 THE COURT: Yes, sure.

14:45:46 4 Q Your diagram of the rash that you observed on

14:45:49 5 Mr. Hanania, did you intend for this to depict a circular

14:45:57 6 or round rash, even if not a perfect circle?

14:46:03 7 A The indurated central area was --

14:46:08 8 MR. LEWIS: Judge, I hate to interrupt, but

14:46:10 9 since the jury can't see the exhibit it's very

14:46:14 10 difficult for the jury to understand Dr.

14:46:18 11 Abemayor's description, so maybe if she could

14:46:21 12 lift it up and then explain what's going on.

14:46:24 13 MR. MAURER: That's fine.

14:46:26 14 MR. LEWIS: So everybody understands it.

14:46:27 15 Q Doctor would you be kind enough to stand up for

14:46:29 16 a second? And I'll hold this up?

14:46:33 17 THE COURT: Can you all see?

14:46:34 18 MR. MAURER: As a matter of fact, is it

14:46:35 19 okay if the doctor steps down and does it in

14:46:37 20 front of the box?

14:46:38 21 THE COURT: Sure, right.

14:46:39 22 MR. MAURER: Thank you.

14:46:46 23 Q The drawing that you made, I see dots and some

14:46:49 24 sort of a circle and lines outside the circle?

14:46:52 25 A Yes.



VC





1 Abemayor - Plaintiff - Direct 444

14:46:52 2 Q What was the circle intended to represent when

14:46:55 3 you made it?

14:46:57 4 A The indurated area was the circle, and within

14:47:00 5 the circle there were some elevated like nodules. I don't

14:47:06 6 remember how many. I put five dots, I don't know if that

14:47:10 7 was accurate, but there were several, more than one or two

14:47:13 8 on the indurated, hard area, and then surrounding that

14:47:17 9 there was some redness which was --

14:47:20 10 THE COURT: Let each of the jurors see.

14:47:21 11 Why don't you pass it among yourselves?

14:47:31 12 (Exhibit shown to the jury.)

14:47:53 13 Q So, Doctor, before you sit down, the lines

14:47:56 14 outside the circle were intended to depict a circle of

14:48:00 15 reddened area around the indurated area?

14:48:04 16 A No, I don't think it's really a circle. It's

14:48:06 17 just some pale red color around the indurated area.

14:48:18 18 Q Thank you.

14:48:19 19 (The witness resumes the stand.)

14:48:44 20 Q By the way, when you evaluated Mr. Hanania, were

14:48:48 21 you of the belief that if his condition did not improve it

14:48:53 22 would mean that you would have to reconsider the original

14:48:56 23 diagnosis of cellulitis?

14:49:01 24 A Yes.

14:49:01 25 Q And, would it also mean that either Duricef was



VC





1 Abemayor - Plaintiff - Direct 445

14:49:06 2 either not the appropriate treatment or not sufficiently

14:49:10 3 strong enough?

14:49:13 4 A That was specifically why I put the line around

14:49:15 5 the -- we marked the area, that should the rash not

14:49:19 6 improve with the treatment that it was important that he

14:49:23 7 go to the emergency room and seek medical attention, even

14:49:27 8 if it meant that night.

14:49:30 9 Q Now, just to be real clear about this, do you

14:49:36 10 recall if Mr. Hanania expressed any concern to you about

14:49:40 11 him having Lyme disease when he saw you?

14:49:43 12 A No. As I had mentioned earlier, what I remember

14:49:52 13 about him is that he was very concerned over this growing

14:49:52 14 lesion on his chest and had actually consulted with a

14:49:54 15 physician-relative, and came in here for evaluation of

14:49:58 16 possible abscess, and that's really what I recall and why

14:50:02 17 I remember him is that's -- that was his concern.

14:50:07 18 Q Is it true that if, as you say, Mr. Hanania --

14:50:12 19 well, strike that. If Mr. Hanania had expressed concern

14:50:16 20 about Lyme disease to you when you saw him, is it true

14:50:19 21 that you would have had him return in a few weeks to

14:50:22 22 examine him and see if the rash was still present?

14:50:30 23 A If I was concerned that it could be Lyme disease

14:50:33 24 and/or he was concerned about possible Lyme disease, with

14:50:37 25 or without a rash, my practice would be to do a blood



VC





1 Abemayor - Plaintiff - Direct 446

14:50:43 2 test, and in this situation where he did have a rash I

14:50:46 3 generally would have him come back three, four weeks after

14:50:49 4 the rash to do the blood test, since usually at the

14:50:53 5 beginning it is -- the test is not very helpful in

14:50:56 6 confirming or eliminating the possible diagnosis of Lyme.

14:51:00 7 Q And, if you had him come back and the rash was

14:51:04 8 still present, would that be a significant finding for

14:51:08 9 you?

14:51:13 10 MR. LEWIS: Objection.

14:51:13 11 THE COURT: I'll allow it. I'll allow it.

14:51:16 12 A If the same rash was still present three weeks

14:51:19 13 down the road, the same rash that had never improved,

14:51:22 14 would that be significant?

14:51:25 15 Q If the rash was present at the same location

14:51:27 16 three weeks later, you have him come back and you find the

14:51:31 17 rash there, would that be significant to you?

14:51:33 18 A I would want to know why he never came back

14:51:35 19 sooner if he still had a rash present three weeks down the

14:51:39 20 road.

14:51:39 21 Q Would it be a significant finding for you that

14:51:42 22 the rash was still present, Doctor?

14:51:44 23 A Yes, but I would want to know why he never came

14:51:47 24 back.

14:51:53 25 MR. MAURER: I think I'm done. Just one



VC





1 Abemayor - Plaintiff - Direct 447

14:51:55 2 moment, Judge.

14:52:24 3 Q So you kept Mr. Hanania on Duricef, what was

14:52:29 4 prescribed by Ms. Kobel; is that correct?

14:52:32 5 A Yes.

14:52:33 6 Q And you maintained the same diagnosis that she

14:52:34 7 noted of cellulitis; correct?

14:52:37 8 A Yes.

14:52:39 9 Q And, you gave Mr. Hanania some instructions

14:52:43 10 about if he continued to have problems that he should seek

14:52:46 11 appropriate medical care; is that correct?

14:52:48 12 A Yes.

14:52:51 13 Q And that was the last time you saw Mr. Hanania

14:52:54 14 in terms of treatment; correct?

14:52:56 15 A To my recollection, yes.

14:53:22 16 Q Doctor, were you aware of any reason when you

14:53:27 17 saw Mr. Hanania on June 4, 1994, any concern of any

14:53:32 18 particular harm that you had in mind that kept you from

14:53:36 19 treating Mr. Hanania concurrently for cellulitis and Lyme

14:53:42 20 disease at that time?

14:53:44 21 MR. LEWIS: Just to the form, Judge.

14:53:46 22 THE COURT: Yes.

14:53:48 23 Q Was there any particular reason or concern that

14:53:50 24 you had why you did not treat him concurrently for Lyme

14:53:55 25 disease and cellulitis on June 4, 1994?



VC





1 Abemayor - Plaintiff - Direct 448

14:53:59 2 THE COURT: All right. No, I'll allow it.

14:54:01 3 MR. LEWIS: I just want to object for the

14:54:02 4 record then, Judge.

14:54:04 5 THE COURT: For the record.

14:54:05 6 MR. LEWIS: My standing is not enough, I

14:54:06 7 don't think.

14:54:08 8 A As I -- as I mentioned, when you look at a rash

14:54:12 9 and it was a red rash, I consider many possible diagnoses,

14:54:18 10 and, I have to weigh them, and when I examined him I did

14:54:23 11 not think that there was a high probability of this being

14:54:27 12 Lyme disease. I didn't think there was a high probability

14:54:30 13 of it being a fungal infection. I thought it was a

14:54:34 14 cellulitis, and as such I treated it with the drug that I

14:54:37 15 felt was the best choice for cellulitis as opposed to

14:54:41 16 starting to cover it with an antifungal or to use other

14:54:45 17 treatments. I weighed the possible diagnoses and I chose

14:54:48 18 to treat it with what I thought was the -- what I thought

14:54:54 19 was the probable diagnosis in the situation.

14:55:00 20 Q And would I be correct that you now know that

14:55:02 21 you were incorrect in your diagnosis?

14:55:04 22 A Yes, I was incorrect.

14:55:09 23 Q And, is it also true that you know that had you

14:55:14 24 treated Mr. Hanania with an appropriate antibiotic for

14:55:18 25 Lyme disease on June 4, 1994, that chances are



VC





1 Abemayor - Plaintiff - Direct 449

14:55:24 2 substantially that he would not have gone onto develop

14:55:27 3 neurologic Lyme disease with the infection in his brain?

14:55:31 4 MR. LEWIS: Objection.

14:55:32 5 THE COURT: I'll sustain the objection.

14:55:34 6 Q Based on what you knew on June 4, 1994?

14:55:39 7 A Number one, the infection was not --

14:55:41 8 Q Excuse me there's no question.

14:55:42 9 THE COURT: He'll rephrase it.

14:55:44 10 Q Based on what you knew on June 4, 1994, is it

14:55:48 11 accurate to say that had you treated Mr. Hanania on June

14:56:02 12 4, 1994 with an appropriate course of antibiotics for Lyme

14:56:02 13 disease that it is likely he would not have gone onto

14:56:02 14 develop neurologic Lyme disease in his brain?

14:56:06 15 MR. LEWIS: Objection.

14:56:07 16 THE COURT: I'll allow it. Can you answer

14:56:09 17 that?

14:56:10 18 A I can answer it in that he developed meningitis.

14:56:18 19 He developed -- in the meninges he had Lyme disease. I'm

14:56:22 20 not so convinced that it was in the brain. When you say

14:56:25 21 brain, you're talking about the substance of the brain.

14:56:27 22 As I mentioned before, meninges are the layers around the

14:56:31 23 brain, and if I had treated him with an antibiotic

14:56:34 24 appropriate for erythema migrans, in all likelihood he

14:56:39 25 would not have developed any further sequelae of Lyme.



VC





1 Abemayor - Plaintiff - Cross 450

14:56:46 2 MR. MAURER: Thank you, Doctor.

3 CROSS-EXAMINATION

14:56:51 4 BY MR. LEWIS:

14:56:51 5 Q I'm going to get you out soon, okay? Are

14:56:55 6 doctors infallible?

14:56:57 7 MR. MAURER: Objection.

14:56:59 8 THE COURT: Well, that --

14:57:00 9 MR. LEWIS: He opened the door.

14:57:01 10 MR. MAURER: No, I did not.

14:57:02 11 MR. LEWIS: He certainly did.

14:57:03 12 MR. MAURER: Not at all.

14:57:04 13 THE COURT: Okay. The jury has gotten the

14:57:07 14 point.

14:57:10 15 A I mean, it would be great if things were black

14:57:12 16 and white.

14:57:13 17 MR. MAURER: Objection. There's no

14:57:14 18 outstanding question.

14:57:15 19 THE WITNESS: I'm sorry.

14:57:16 20 THE COURT: Let's get down to the business.

14:57:18 21 Q The door is closed. You can't reopen it, okay.

14:57:30 22 MR. LEWIS: May I approach the witness for

14:57:32 23 a moment?

14:57:33 24 THE COURT: If you want to show her

14:57:34 25 something.



VC





1 Abemayor - Plaintiff - Cross 451

14:57:34 2 Q Doctor, we talked about your note, but there is

14:57:36 3 something that you weren't directed to and I want to,

14:57:39 4 before I ask you about your credentials, there's a

14:57:44 5 reference here of, "Took three antibiotic pills." What is

14:57:52 6 that referring to, Doctor?

14:57:55 7 A Mr. Hanania was seen the previous day by

14:58:00 8 Jeanette Kobel and she started him on Duricef. He took

14:58:08 9 two pills that day and he took a third pill the morning I

14:58:12 10 saw him, so he took three pills total, and --

14:58:16 11 Q How did that history that Mr. Hanania took three

14:58:20 12 pills of Duricef affect you in your evaluation of what was

14:58:26 13 causing this condition and your treatment plans?

14:58:30 14 MR. MAURER: Objection. Leading.

14:58:32 15 Suggesting that it did. He's leading.

14:58:34 16 THE COURT: No, I don't think necessarily

14:58:36 17 so. I'll allow it. Can you answer that?

14:58:39 18 A I -- I had two choices at that point. One was

14:58:43 19 to decide to stop the Duricef and consider something else

14:58:47 20 or, two, to continue on the Duricef, and I was not real

14:58:52 21 sure that the Duricef really had enough time to work. It

14:58:56 22 was about 24 hours since he had first been seen, and I

14:58:58 23 really wanted to give it just like another day, and so I

14:59:01 24 kept him on it and we -- the surgeon, myself, we marked

14:59:07 25 the area, and we gave him instructions that if it did not



VC





1 Abemayor - Plaintiff - Cross 452

14:59:10 2 improve, if it increased in size, if there was any kind

14:59:14 3 of -- if it didn't respond to this antibiotic, that he

14:59:18 4 should seek medical attention, and that was the -- those

14:59:21 5 were the instructions that he was given. At that point,

14:59:23 6 if it did not improve with the antibiotic, then he needed

14:59:29 7 to be reevaluated, reevaluated for possible intravenous

14:59:33 8 antibiotics, reevaluated in terms of the lesion, the

14:59:37 9 diagnosis, but, I didn't feel that after three pills that

14:59:40 10 I'd given it sufficient time to work, so --

14:59:46 11 Q That's fine. Are you finished?

14:59:47 12 A Yes.

14:59:48 13 Q If Mr. Hanania -- withdrawn. If Mr. Hanania had

14:59:53 14 pus, what would you have expected him to do in light of

14:59:57 15 your instructions and Dr. Calabro's instructions?

15:00:05 16 A I assume if he had any persistent symptoms, it

15:00:09 17 wasn't improving, that he would have sought medical

15:00:12 18 attention.

15:00:13 19 Q Well, if this rash started to emit pus, what

15:00:18 20 would you have expected the patient to do in light of your

15:00:22 21 instructions and Dr. Calabro's instructions?

15:00:24 22 A You mean within the next two hours?

15:00:26 23 Q Within 24 hours or thereafter?

15:00:28 24 A Well, the next 24 hours he was instructed to go

15:00:31 25 to the emergency room, because we were closed.



VC





1 Abemayor - Plaintiff - Cross 453

15:00:33 2 Q Okay. And if it continued thereafter, what was

15:00:35 3 he expected to do?

15:00:36 4 A He was expected to come back.

15:00:38 5 Q If his fevers continued within the next 24 hours

15:00:40 6 or thereafter, what was he instructed to do?

15:00:43 7 A He was instructed to come back to seek

15:00:45 8 attention.

15:00:46 9 Q If the rash stayed the same or expanded, what

15:00:48 10 was he expected to do?

15:00:49 11 A I assume he would have come back.

15:00:51 12 Q Why, in light of the Duricef being prescribed?

15:00:56 13 A Because I think I -- I think myself, Dr. Calabro

15:01:07 14 voiced our concern that this was potentially a very

15:01:07 15 serious condition, and that he -- we did not treat it

15:01:07 16 lightly. We did not just send him off and say, oh, this

15:01:11 17 is nothing. We felt -- we were very concerned, and if it

15:01:14 18 didn't improve, if it was -- he was -- he had to come

15:01:18 19 back.

15:01:20 20 Q I'm going to stop now and now I'm going to go

15:01:23 21 back a little bit about your background. Where are you

15:01:26 22 from initially? Where did you grow up?

15:01:28 23 A I grew up on Long Island.

15:01:30 24 Q Have you lived here, absent the time you went

15:01:36 25 down to the University of Pennsylvania, all your life?



VC





1 Abemayor - Plaintiff - Cross 454

15:01:40 2 A Other then college and, I guess, my residency,

15:01:43 3 I've been on Long Island.

15:01:45 4 Q Your residency was up at the Roger Williams

15:01:49 5 Hospital?

15:01:49 6 A Yes.

15:01:49 7 Q What medical school is that associated with?

15:01:51 8 A That's Brown University.

15:01:54 9 Q And, there's a thing called a board

15:01:59 10 certification in internal medicine?

15:02:00 11 A Uh-hum.

15:02:01 12 Q What is board certification? The jury hasn't

15:02:04 13 heard what that means, and would you tell them whether you

15:02:06 14 were board certified on June, 1994 when you saw Mr.

15:02:11 15 Hanania?

15:02:14 16 A Board certification is a -- it means that I've

15:02:21 17 taken a test that is offered to all people completing

15:02:28 18 requirements in internal medicine. It's a test that

15:02:32 19 indicates, I guess, a certain level of proficiency. You

15:02:38 20 pass the test, you get to put a couple letters after your

15:02:42 21 name, board certified, but, that's basically -- I passed.

15:02:50 22 Q Good enough for me. Back before June 4, 1994,

15:02:58 23 had you seen a lot of rashes in your clinical practice?

15:03:02 24 A I think rashes are common problems that people

15:03:09 25 come to the physician's office with.



VC





1 Abemayor - Plaintiff - Cross 455

15:03:11 2 Q Had you had the opportunity to see rashes that

15:03:14 3 were later determined to be caused by Lyme disease before

15:03:18 4 June of 1994?

15:03:20 5 A I'm not sure I understand. I'm sorry.

15:03:24 6 Q Okay. Rashes can be caused by a lot of

15:03:26 7 different things; correct?

15:03:27 8 A Yes.

15:03:27 9 Q Rashes can be caused by Lyme disease?

15:03:29 10 A Yes.

15:03:30 11 Q Had you had an opportunity to see patients who

15:03:33 12 had rashes caused by Lyme disease --

15:03:35 13 A Yes.

15:03:36 14 Q -- before Mr. Hanania?

15:03:37 15 A Yes.

15:03:40 16 Q Is there a characteristic or classical rash of

15:03:43 17 Lyme disease?

15:03:45 18 A Typically it's a erythematous rash with some

15:03:50 19 central clearing. Typically.

15:03:53 20 Q Did Mr. Hanania's rash present as the typical

15:03:57 21 rash of Lyme disease?

15:03:59 22 A No, it didn't.

15:04:01 23 Q You were asked a lot of questions about whether

15:04:07 24 Lyme disease rashes are itchy and pruritic and tender. I

15:04:11 25 want you to address the probabilities. Is pus consistent



VC





1 Abemayor - Plaintiff - Cross 456

15:04:19 2 with cellulitis?

15:04:21 3 A With an abscess forming.

15:04:23 4 Q Is pus consistent with Lyme disease?

15:04:26 5 A Not to my knowledge.

15:04:28 6 Q Are raised hard rashes consistent with

15:04:32 7 cellulitis?

15:04:35 8 A Yes, you can see that with cellulitis.

15:04:37 9 Q What's the probability of seeing a raised hard

15:04:41 10 rash with Lyme disease?

15:04:44 11 A It's much less.

15:04:48 12 Q The jury heard reference to vescular?

15:04:52 13 A Vesicular.

15:04:53 14 Q Vesicular, I'm sorry. Was this rash vesicular?

15:04:58 15 A What I remember is that there were nodules,

15:05:00 16 meaning just little bumps, that there weren't actually

15:05:03 17 vesicles or fluid-filled bumps, and, in his case I don't

15:05:09 18 recall there being vesicles. I really more remember

15:05:13 19 little bumps.

15:05:14 20 Q The diagram that you entered into the chart, did

15:05:24 21 that represent any ringlike condition or description?

15:05:29 22 A No. It was an indurated area with some

15:05:31 23 surrounding redness. It was not a bull's-eye.

15:05:37 24 Q Was Dr. Calabro board certified in the field of

15:05:41 25 surgery?



VC





1 Abemayor - Plaintiff - Cross 457

15:05:42 2 A I really don't know.

15:05:45 3 Q Okay. Was she an attending surgeon at LIJ?

15:05:49 4 A Yes.

15:05:49 5 Q This wasn't -- she wasn't in her training or

15:05:52 6 anything like that?

15:05:53 7 A No, no.

15:05:54 8 Q Had she been a resident -- had she been an

15:05:56 9 attending surgeon for a number -- for several years?

15:06:00 10 A I don't know how many years. She had been at

15:06:03 11 CHP for many years. I -- she's a respected surgeon. I

15:06:09 12 had used -- I had sent my patients to her in the past. I

15:06:12 13 was happy with her, I thought she was good, but I don't

15:06:16 14 know -- in all honesty I don't know about her credentials.

15:06:19 15 Q Okay. Did Dr. Calabro, after you and she looked

15:06:23 16 at Mr. Hanania, did she express a concern that this was

15:06:28 17 possible Lyme disease?

15:06:30 18 MR. MAURER: Objection.

15:06:33 19 THE COURT: I sustain the objection.

15:06:34 20 Q Did Dr. Calabro disagree with your diagnosis

15:06:39 21 that this was cellulitis?

15:06:41 22 MR. MAURER: Objection.

15:06:42 23 THE COURT: Yes. Not her impression of

15:06:56 24 what he or she might have done.

15:06:56 25 A Do you want me to read the record?



VC





1 Abemayor - Plaintiff - Cross 458

15:06:56 2 MR. LEWIS: May we approach, Judge, or I'll

15:06:56 3 approach.

15:06:58 4 THE COURT: She should have been an

15:06:59 5 attorney. She knows exactly what to do.

15:07:04 6 THE WITNESS: I should change careers now.

15:07:07 7 Q No. We like you as a physician. I don't need

15:07:09 8 any competition. I have enough problems. Would you read

15:07:12 9 Dr. Calabro's note?

15:07:15 10 A "Cellulitis aspirate, no pus. Patient insisted

15:07:23 11 on this to rule out abscess."

15:07:27 12 Q The reference to cellulitis, whose handwriting

15:07:30 13 is that?

15:07:31 14 A That's Dr. Calabro's handwriting. "Cellulitis

15:07:34 15 aspirate, negative pus. Patient instruct -- insisted on

15:07:39 16 this to rule out abscess. Area marked. If no

15:07:43 17 improvement, will need to change antibiotics or use IV

15:07:48 18 antibiotics. Warm compresses."

15:07:58 19 Q After speaking to Mr. Hanania, doing a physical

15:08:06 20 examination, consulting with Dr. Calabro during her

15:08:10 21 physical examination, did you have a high index of

15:08:13 22 suspicion that this rash was Lyme disease or caused by

15:08:19 23 Lyme disease?

15:08:20 24 A I didn't.

15:08:21 25 Q What was your index of suspicion as to what was



VC





1 Abemayor - Plaintiff - Cross 459

15:08:25 2 causing this rash?

15:08:28 3 A I thought he had had some kind of a bite, I

15:08:32 4 thought most likely from a spider, and that there was a

15:08:39 5 subsequent skin infection from that bite.

15:08:45 6 Q In weighing the possibilities between Lyme

15:08:49 7 disease and cellulitis, if we put them on a scale, where

15:08:53 8 would cellulitis be, where would Lyme disease be?

15:08:57 9 MR. MAURER: Objection to form.

15:08:59 10 THE COURT: She can indicate -- you've

15:09:00 11 indicated with your hands.

15:09:03 12 Q Or any way you want to express in terms of

15:09:07 13 probabilities of cellulitis as against Lyme disease as of

15:09:10 14 June 4, 1994.

15:09:13 15 THE COURT: From her experience.

15:09:15 16 MR. LEWIS: Correct.

15:09:16 17 A I thought this was a cellulitis. I thought the

15:09:19 18 likelihood of Lyme disease, I really, though initially

15:09:23 19 it's a diagnosis that you have to entertain in any rash, I

15:09:26 20 really felt it was very atypical, and did not really

15:09:30 21 consider it as a probable cause of this rash.

15:09:35 22 MR. LEWIS: I have no further questions.

15:09:36 23 MR. MAURER: I have just a few, your Honor,

15:09:37 24 with your permission.

15:09:39 25 THE COURT: Yes, sir.



VC





1 Abemayor - Plaintiff - Redirect 460

2 REDIRECT EXAMINATION

15:09:46 3 BY MR. MAURER:

15:09:47 4 Q Dr. Calabro, is that her name?

15:09:49 5 A Calabro, Susan Calabro.

15:09:52 6 Q Calabro. Did she make the chart entry in your

15:09:55 7 presence pertaining to Mr. Hanania on 6/4/94?

15:10:03 8 A I don't -- I don't recall the actual writing of

15:10:07 9 the chart in my presence. I know we discussed it at the

15:10:11 10 time.

15:10:12 11 Q You discussed it with her?

15:10:13 12 A Yes. I didn't just send him down the hall to

15:10:17 13 her office, you know. I discussed it with her.

15:10:19 14 Q And she told you that she thought it was a

15:10:21 15 cellulitis when you discussed it?

15:10:24 16 A I don't recall our conversation. I can see in

15:10:27 17 her note that she wrote cellulitis, but my practice would

15:10:32 18 not be just to say, "Well, go down see the surgeon." I

15:10:35 19 would have discussed it with the surgeon first that this

15:10:37 20 was the situation and -- but I didn't -- I don't recall

15:10:43 21 any -- I really don't remember talking to her, the words

15:10:47 22 that passed, but my practice would have been to talk to

15:10:49 23 her first.

15:10:51 24 Q Well, do you recall, if you don't remember the

15:10:52 25 words that passed, do you recall that when you discussed



VC





1 Abemayor - Plaintiff - Redirect 461

15:10:55 2 Mr. Hanania's case with this surgeon, you spoke after she

15:11:01 3 examined him; is that correct?

15:11:06 4 A Yes.

15:11:08 5 Q Okay. Do you recall, in substance, if not the

15:11:10 6 exact words, her agreeing with you that this was a

15:11:14 7 cellulitis in all likelihood, or words to that effect?

15:11:18 8 A I remember that she would have -- vaguely

15:11:21 9 remember she said there was no pus, that she didn't get

15:11:24 10 anything out of the lesion. I don't remember the

15:11:27 11 specifics of our conversation.

15:11:28 12 Q Was it your impression that she agreed with you

15:11:30 13 as to the cellulitis?

15:11:32 14 A Yes.

15:11:34 15 Q Okay. She didn't see Ms. Kobel's note from

15:11:37 16 6/3/94 before you had that discussion, did she?

15:11:43 17 A Neither of us saw the note.

15:11:50 18 Q And, you said you did not have a high index of

15:11:54 19 suspicion that Mr. Hanania had Lyme disease because he had

15:11:58 20 an atypical rash, it was not a common-looking rash for

15:12:02 21 Lyme; correct?

15:12:04 22 A Well that was part of it. I mean, he had, you

15:12:07 23 know, it was indurated, it was a hard firm area.

15:12:11 24 That's -- it's not -- it's atypical for Lyme, more typical

15:12:16 25 for cellulitis. He had fever. You can see it with both,



VC





1 Abemayor - Plaintiff - Redirect 462

15:12:19 2 but it's less common with Lyme disease. He had swollen

15:12:30 3 glands. You can see it with Lyme disease but it's less

15:12:30 4 common than with a cellulitis. I kind of looked at the

15:12:32 5 whole picture, and in my estimation cellulitis was more --

15:12:34 6 was a much more likely diagnosis, and obviously I now know

15:12:41 7 that this was an atypical presentation and that ultimately

15:12:45 8 he had Lyme disease, but, at the time I used my clinical

15:12:50 9 judgment and I felt he had cellulitis.

15:12:55 10 Q Just to go back to one point that Mr. Lewis

15:12:58 11 asked you about regarding pus, am I correct that pus isn't

15:13:08 12 consistent with a cellulitis condition in the absence of

15:13:12 13 an abscess?

15:13:18 14 A Pus comes from a cavity. It's -- it's a --

15:13:22 15 you've got to have a cavity to contain this liquefied

15:13:28 16 infection with white cells, and the -- in a cellulitis it

15:13:34 17 simply says -- it's an infection of the skin, there's not

15:13:38 18 necessarily a cavity. So, I guess when I say that, it's

15:13:43 19 -- I thought he had a cellulitis, he may have had an

15:13:46 20 abscess that was forming, but there was no obvious abscess

15:13:49 21 then. Is that what -- and the pus -- I don't -- is that

15:13:53 22 what you're asking me?

15:13:55 23 Q Well. You answered. I'm not sure if I asked

15:13:57 24 this yet, so I want to go back to it to make sure I've got

15:14:01 25 it covered. With regard to the treatment with the Duricef



VC





1 Abemayor - Plaintiff - Redirect 463

15:14:08 2 and the length of treatment, did you know, when you

15:14:11 3 prescribed the Duricef on June 4, 1994 for Mr. Hanania,

15:14:16 4 that an antibiotic that is correct for one condition but

15:14:21 5 incorrect for another could cause the condition that the

15:14:26 6 patient has, which is another condition than what is it

15:14:30 7 is -- strike it. It's terrible. Terrible.

15:14:32 8 THE COURT: Yes it's hard to --

15:14:33 9 MR. MAURER: Terrible.

15:14:34 10 MR. LEWIS: That rivals some of my bad

15:14:35 11 questions.

15:14:36 12 MR. MAURER: That was bad. Even my partner

15:14:38 13 is shaking his head.

15:14:42 14 Q Let's start again. I'm embarrassed. Okay. Did

15:14:46 15 you know on June 4, 1994 that when you prescribe an

15:14:50 16 antibiotic, even if it ends up being an antibiotic that's

15:14:54 17 not appropriate for the condition the patient has that it

15:14:56 18 can reduce the patient's symptoms, in part, if not

15:14:59 19 completely?

15:15:00 20 MR. LEWIS: Judge, I have no objection if

15:15:01 21 he'd ask Duricef with regard to this particular

15:15:04 22 case and the context of this case rather than

15:15:06 23 all the antibiotics for any condition in the

15:15:08 24 world.

15:15:09 25 MR. MAURER: Well, I already asked this



VC





1 Abemayor - Plaintiff - Redirect 464

15:15:09 2 question earlier today and I think it is a

15:15:11 3 relevant in the general sense before getting

15:15:14 4 specific.

15:15:15 5 MR. LEWIS: I was sleeping at that time,

15:15:17 6 Judge.

15:15:17 7 THE COURT: All right. You snuck it

15:15:18 8 through, in other words. All right. It's no

15:15:20 9 problem. You want to limit it now to the

15:15:24 10 Duricef?

15:15:25 11 MR. MAURER: If you are directing me to, I

15:15:27 12 will.

15:15:27 13 THE COURT: Thank you.

15:15:30 14 Q Okay. You knew on June 4, 1994, when you said

15:15:33 15 Mr. Hanania should stay on the Duricef that treats

15:15:37 16 cellulitis, that cellulitis -- I'm sorry, that Mr.

15:15:41 17 Hanania, if he had Lyme disease, that the cellulitis could

15:15:49 18 reduce his Lyme symptoms -- I'm sorry. Getting confused

15:15:53 19 now. I'll do it again. When you decided to treat Mr.

15:15:57 20 Hanania on June 4, 1994 with Duricef to treat cellulitis,

15:16:04 21 did you know that the Duricef could reduce symptoms of

15:16:09 22 Lyme disease if he had Lyme disease?

15:16:15 23 A I was not aware that Duricef was a drug for Lyme

15:16:20 24 disease. I don't think it is now. It's not an accepted

15:16:24 25 treatment for Lyme disease. I wouldn't have expected it



VC





1 Abemayor - Plaintiff - Redirect 465

15:16:28 2 to reduce his Lyme disease symptoms.

15:16:31 3 Q At all?

15:16:32 4 A I don't know. I've never seen anything, heard

15:16:35 5 anything that Duricef partially treats Lyme. I'm

15:16:39 6 unfamiliar with anything about that. I don't know.

15:16:44 7 MR. MAURER: That's all I have. Thank you.

15:16:46 8 MR. LEWIS: Nothing further, Judge.

15:16:47 9 THE COURT: Thank you. You can step down.

15:16:49 10 THE WITNESS: That's it?

15:17:03 11 THE COURT: Do you have another witness?

15:17:04 12 MR. LEWIS: I do, Judge.

15:17:06 13 THE COURT: Yes. We can take a break now,

15:17:08 14 I think would be a good idea.

15:17:10 15 MR. MAURER: Okay.

15:17:11 16 THE COURT: All right. Members of the

15:17:11 17 jury, break time? Yes. Okay. Remember, do not

15:17:14 18 discuss the case among yourselves or with anyone

15:17:16 19 else.

20 (Whereupon there was a recess.)

15:32:48 21 (The following takes place in the presence of the jury.)

15:35:00 22 MR. MAURER: Your Honor, at this time, I

15:35:03 23 would ask that Dr. Christine Jankowski take the

15:35:07 24 stand.

25 C H R I S T I N E J A N K O W S K I, M. D.,



VC





1 Jankowski - Plaintiff - Direct 466

2 called by Plaintiff, residing at 1 Stewart Avenue,

3 Syosset, New York, was duly sworn and testified as

15:36:15 4 follows:

5 DIRECT EXAMINATION

15:36:23 6 BY MR. MAURER:

15:36:24 7 Q Good afternoon, Doctor.

15:36:26 8 A Good afternoon.

15:36:30 9 Q Before I get into the substance of your

15:36:33 10 testimony dealing with Mr. Hanania, I'd like to ask you

15:36:38 11 some background questions, okay? You attended college for

15:36:44 12 one year and entered a six-year medical school in Warsaw,

15:36:48 13 Poland; is that correct?

15:36:49 14 A Yes.

15:36:51 15 Q And you also served a six-month internship in

15:36:54 16 Poland; is that correct?

15:36:56 17 A Yes.

15:36:57 18 Q And you came -- let's see. In 1985 you returned

15:37:01 19 to the United States for an internship and residency in

15:37:04 20 internal medicine --

15:37:06 21 A Yes.

15:37:07 22 Q -- at Mount Sinai and Elmhurst General Hospital?

15:37:09 23 A Yes.

15:37:10 24 Q And became licensed to practice medicine in New

15:37:13 25 York in 1988?



VC





1 Jankowski - Plaintiff - Direct 467

15:37:15 2 A Yes.

15:37:17 3 Q And you became board certified in internal

15:37:19 4 medicine in 1994, which was the year you saw Mr. Hanania?

15:37:24 5 A Yes.

15:37:28 6 Q Am I also correct that you attended two or three

15:37:30 7 general medical conferences which touched upon Lyme

15:37:34 8 disease as a subject for probably several hours in total

15:37:37 9 prior to seeing Mr. Hanania?

15:37:39 10 A Yes.

15:37:40 11 Q And, you received some material on Lyme disease

15:37:43 12 that included booklets dealing with the subject of Lyme

15:37:49 13 disease at that time?

15:37:50 14 A Yes.

15:37:58 15 Q Incidentally, at your deposition, do you recall

15:38:01 16 my asking you if you had a copy of any of those booklets?

15:38:06 17 A No, I do not.

15:38:07 18 Q Did you ever look to see if you had any of those

15:38:09 19 Lyme disease booklets or pamphlets?

15:38:11 20 A Yes, yes, I did.

15:38:12 21 Q And did you find any?

15:38:13 22 A No, I did not.

15:38:21 23 Q You don't know if you received any material on

15:38:23 24 Lyme disease in medical school or during your internship

15:38:27 25 in Poland; correct?



VC





1 Jankowski - Plaintiff - Direct 468

15:38:28 2 A I don't recall.

15:38:32 3 Q But you did attend lectures on Lyme disease

15:38:34 4 during your three-year internship and residency at

15:38:37 5 Elmhurst General?

15:38:40 6 A I don't recall specifically, but it was probably

15:38:43 7 part of the curriculum.

15:38:45 8 Q Prior to seeing Mr. Hanania, is it accurate to

15:38:50 9 say that you had diagnosed between one and less than 25

15:38:54 10 people with Lyme disease?

15:38:55 11 A Yes.

15:38:59 12 Q And you reached those diagnoses in those one to

15:39:02 13 less than 25 patients based upon a clinical examination

15:39:06 14 and blood work?

15:39:07 15 A Yes.

15:39:10 16 Q And you didn't make the diagnosis of Lyme

15:39:13 17 disease based solely on a physical examination in any of

15:39:15 18 those instances; is that correct?

15:39:20 19 A Well, yes.

15:39:23 20 Q You had a clinical suspicion of Lyme disease,

15:39:25 21 but you didn't make a firm diagnosis until you had the

15:39:28 22 blood work results; is that correct?

15:39:31 23 A Yes.

15:39:33 24 Q And, when you saw Mr. Hanania, was it your

15:39:37 25 understanding that a differential diagnosis meant that



VC





1 Jankowski - Plaintiff - Direct 469

15:39:39 2 when there are different medical conditions that could

15:39:41 3 have similar presentations, that you have to rule in or

15:39:44 4 rule out the possible medical conditions?

15:39:47 5 A Yes.

15:39:48 6 Q And when making a differential diagnosis, would

15:39:52 7 you make a working diagnosis of one or more possible

15:39:55 8 conditions that may be the appropriate diagnosis?

15:39:58 9 A Yes.

15:40:01 10 Q And you had made working diagnoses of Lyme

15:40:04 11 disease before you saw Mr. Hanania even before you had any

15:40:07 12 test results back; correct?

15:40:10 13 A Yes.

15:40:15 14 Q And you treated patients with antibiotics for

15:40:18 15 Lyme disease without the benefit of a test result only

15:40:25 16 where you had actually removed a tick from the patient and

15:40:28 17 the patient could tell you that the tick had been attached

15:40:32 18 for at least 24 to 48 hours, and this happened prior to

15:40:36 19 Mr. Hanania seeing you?

15:40:38 20 A Yes.

15:40:41 21 Q And before you saw Mr. Hanania, you knew that

15:40:43 22 Lyme disease was an infection spread by a tick that has a

15:40:46 23 spirochete in its gut that got passed into the human

15:40:50 24 patient; is that correct?

15:40:52 25 A Yes.



VC





1 Jankowski - Plaintiff - Direct 470

15:40:53 2 Q And you also knew that there were three stages

15:40:55 3 of Lyme disease before you saw Mr. Hanania?

15:40:58 4 A Yes.

15:41:00 5 Q That a first or acute phase being the one that

15:41:04 6 is most often characterized by a Lyme rash?

15:41:08 7 A Yes.

15:41:09 8 Q And you knew the second stage is characterized

15:41:11 9 by neurological, musculoskeletal, cardiac and skin

15:41:17 10 involvement?

15:41:18 11 A Yes.

15:41:18 12 Q And you also knew that the third stage generally

15:41:21 13 involved the musculoskeletal system, neurological and

15:41:26 14 continuation of cardiac problems from the second stage?

15:41:28 15 A Yes.

15:41:29 16 Q And you also knew, before you saw Mr. Hanania,

15:41:32 17 that a Lyme disease rash generally presented as an

15:41:34 18 erythematous or red rash with central clearing?

15:41:40 19 A Yes.

15:41:49 20 Q And you knew that the rash can vary in

15:41:49 21 appearance?

15:41:49 22 A Yes.

15:41:49 23 Q And you knew that some of the Lyme rashes have

15:41:49 24 rings within rings; is that correct?

15:41:49 25 A Yes.



VC





1 Jankowski - Plaintiff - Direct 471

15:41:51 2 Q And you knew that some rashes have very hard,

15:41:51 3 red centers?

15:41:53 4 A Yes.

15:41:56 5 Q And you also knew, before seeing Mr. Hanania,

15:41:59 6 that not all Lyme rashes have a ring border?

15:42:03 7 A Yes.

15:42:03 8 Q And you knew that some are just -- some of the

15:42:05 9 Lyme rashes are just solid red areas of skin?

15:42:10 10 A Yes.

15:42:11 11 Q And did you also know before seeing Mr. Hanania

15:42:15 12 that the size of a Lyme rash varies from the size of a

15:42:19 13 quarter to several centimeters or more in size?

15:42:24 14 A Yes.

15:42:26 15 Q And before seeing Mr. Hanania, did you know that

15:42:29 16 the presence of a central punctate or hole in the skin

15:42:33 17 from a possible bite can be consistent with a tick bite?

15:42:39 18 A Yes.

15:42:39 19 Q And consistent with the type of bite that can

15:42:42 20 cause someone to contract Lyme disease?

15:42:44 21 A Yes.

15:42:46 22 Q And you also knew, before you saw Mr. Hanania,

15:42:48 23 that the entire New York metropolitan area was an area

15:42:53 24 that was endemic for deer ticks that were infected with

15:42:56 25 the Lyme bacteria?



VC





1 Jankowski - Plaintiff - Direct 472

15:42:58 2 A Yes.

15:42:59 3 Q And you also knew that the population in an

15:43:02 4 endemic area was at greater risk than in another areas of

15:43:05 5 contracting Lyme disease before you saw Mr. Hanania. You

15:43:09 6 knew that, right?

15:43:10 7 A Yes.

15:43:11 8 Q And is it also true that prior to June 1 or

15:43:15 9 prior to seeing Mr. Hanania, actually, you did not know

15:43:19 10 that a Lyme rash was considered to be a basis, if present,

15:43:24 11 in and of itself to diagnose Lyme disease; is that

15:43:27 12 correct?

15:43:32 13 A Rephrase the question again, please?

15:43:34 14 Q Sure. Prior to seeing Mr. Hanania, isn't it

15:43:37 15 true that you did not know that if a patient presented

15:43:41 16 with a Lyme rash, that that rash, in and of itself being

15:43:45 17 present, even without any other Lyme symptoms, was a

15:43:48 18 proper basis for diagnosing Lyme disease; is that correct?

15:43:52 19 MR. LEWIS: To the form, Judge.

15:43:56 20 THE COURT: No, I'll allow it.

15:43:59 21 A I felt that it was not a proper basis to start

15:44:02 22 treatment on.

15:44:02 23 Q Well, isn't it true that, in fact, you

15:44:05 24 believed -- I'm sorry. Isn't it true that you were

15:44:08 25 unaware that a Lyme disease rash was a basis for making



VC





1 Jankowski - Plaintiff - Direct 473

15:44:13 2 the diagnosis? I'm not talking about treatment right now,

15:44:17 3 I'm just saying making the diagnosis?

15:44:19 4 MR. LEWIS: To the form, Judge.

15:44:20 5 THE COURT: Were you aware, all right.

15:44:21 6 Q Were you aware that the presence of a Lyme rash,

15:44:24 7 without any other Lyme-related symptoms, was a basis for

15:44:28 8 making a diagnosis of Lyme disease before you saw Mr.

15:44:31 9 Hanania?

15:44:32 10 A Only a working diagnosis, not a final diagnosis.

15:44:39 11 Q What does that mean?

15:44:41 12 A Okay. That means using as a differential

15:44:44 13 diagnosis and considering what the possibilities were I

15:44:48 14 felt that it was a possibility for Lyme disease, but that

15:44:51 15 it was not finally diagnostic or nondiagnostic for Lyme

15:45:36 16 disease.

15:45:37 17 Q Do you recall my asking you questions at a

15:45:40 18 pretrial examination about a year ago in this case?

15:45:44 19 A Yes, I do.

15:45:45 20 Q Okay. And did you have a chance to read through

15:45:47 21 the transcript of that testimony at some time after the

15:45:50 22 deposition?

15:45:52 23 A Yes, I did.

15:45:52 24 Q And did you have a chance to read the transcript

15:45:55 25 prior to coming here in the recent past to prepare for



VC





1 Jankowski - Plaintiff - Direct 474

15:45:58 2 your testimony?

15:45:59 3 A Yes, I did.

15:46:01 4 Q Okay. Do you recall on the date of your

15:46:03 5 deposition, which was September 18, 1997, almost a year,

15:46:12 6 my asking you this question and your giving this response?

15:46:16 7 Page 28, line 21. "Question, on or before June 1, 1994,

15:46:27 8 were you aware that a Lyme rash was considered to be

15:46:29 9 diagnostic in and of itself for Lyme disease?" And

15:46:35 10 skipping to page 30, line 25, where the answer was given,

15:46:39 11 the answer is, "No." Do you recall that question and

15:46:43 12 giving that answer?

15:46:44 13 MR. LEWIS: Objection again, Judge.

15:46:46 14 THE COURT: No, I'll allow it. Do you

15:46:49 15 recall that question and giving that answer?

15:46:52 16 A I recall the question and I recall the same

15:46:54 17 issues that I had that as far as whether it was finally

15:46:59 18 diagnostic or not.

15:47:02 19 Q And you did not give that explanation when you

15:47:04 20 answered the question at the deposition; is that correct?

15:47:07 21 THE COURT: Well, the words speak for

15:47:08 22 themselves.

15:47:13 23 Q By the way, you had no background in infectious

15:47:17 24 diseases as of the time you saw Mr. Hanania; is that

15:47:19 25 correct?



VC





1 Jankowski - Plaintiff - Direct 475

15:47:20 2 A Yes.

15:47:21 3 Q Other than what you got in basic training in

15:47:23 4 medical school, right?

15:47:25 5 A Yes.

15:47:28 6 Q And, you felt qualified to make a determination

15:47:32 7 when you saw Mr. Hanania as to whether or not someone had

15:47:45 8 Lyme disease; is that correct?

15:47:45 9 A Yes.

15:47:46 10 Q Would I be correct that you can't recall if you

15:47:48 11 knew, when you saw Mr. Hanania, that a Lyme rash could be

15:47:51 12 itchy?

15:47:52 13 A Yes.

15:47:59 14 Q And, prior to seeing Mr. Hanania, isn't it true

15:48:03 15 that you had seen patients who you suspected as having

15:48:06 16 Lyme disease who didn't present with a Lyme rash?

15:48:10 17 A Yes.

15:48:16 18 Q And those patients, among other things, had

15:48:18 19 headaches; is that correct?

15:48:21 20 A Yes.

15:48:21 21 Q Fatigue?

15:48:22 22 A Yes.

15:48:23 23 Q Muscle pain?

15:48:24 24 A Yes.

15:48:25 25 Q Joint pain?



VC





1 Jankowski - Plaintiff - Direct 476

15:48:26 2 A Yes.

15:48:37 3 Q And you were aware when you saw Mr. Hanania that

15:48:40 4 rashes could be caused not only by Lyme disease but by

15:48:44 5 other insects -- insect bites other than a tick bite; is

15:48:48 6 that correct?

15:48:49 7 A Yes.

15:48:50 8 Q And it could also be -- the rash could also be

15:48:54 9 caused by dermatitis, contact dermatitis?

15:48:59 10 A Yes.

15:49:00 11 Q And also by lupus?

15:49:01 12 A Yes.

15:49:15 13 Q And, is it also true that, when you saw Mr.

15:49:18 14 Hanania, you did not know what actually caused the

15:49:21 15 presence of a Lyme rash; isn't that true?

15:49:26 16 A Yes.

15:49:34 17 Q And isn't it also true when you saw Mr. Hanania

15:49:38 18 that you knew that Long Island is an endemic area for Lyme

15:49:42 19 disease, so you wouldn't normally ask a patient of CHP if

15:49:45 20 they live in or have been exposed to an endemic area; is

15:49:49 21 that correct?

15:49:50 22 A Yes.

15:49:56 23 Q And, isn't it also true when you saw Mr. Hanania

15:50:00 24 that you knew that meningitis is a condition sometimes

15:50:03 25 associated with Lyme disease?



VC





1 Jankowski - Plaintiff - Direct 477

15:50:05 2 A Yes.

15:50:06 3 Q And isn't it also true that you knew that

15:50:08 4 generally some Lyme disease patients who develop

15:50:11 5 meningitis complain of neck stiffness or neck pain before

15:50:16 6 they develop meningitis?

15:50:19 7 A Yes.

15:50:19 8 Q So the neck pain or stiffness is a precursor to

15:50:22 9 the development of meningitis; is that correct? It can

15:50:28 10 be?

15:50:28 11 THE COURT: You didn't let her finish.

15:50:30 12 MR. LEWIS: Judge, the answer was

13 interrupted.

15:50:32 14 A Headache and neck stiffness does not have to be

15:50:35 15 a precursor to meningitis.

15:50:37 16 Q I'm sorry, I didn't hear you.

15:50:39 17 A I said neck stiffness and headache does not have

15:50:42 18 to be a precursor to meningitis.

15:50:52 19 Q You saw Mr. Hanania on June 30, 1994 in an

15:50:56 20 urgent care visit; is that correct?

15:50:58 21 A Yes.

15:50:59 22 Q And prior to that time, was it your standard

15:51:02 23 practice, when you'd see a patient in an urgent care visit

15:51:05 24 who had been seen in CHP in the recent past, to look at

15:51:09 25 the patient's chart for past medical visits and gather



VC





1 Jankowski - Plaintiff - Direct 478

15:51:11 2 information about the patient?

15:51:13 3 A Yes.

15:51:17 4 Q And, did you do that with regard to Mr. Hanania

15:51:21 5 when you saw him on June 30, 1994?

15:51:24 6 A Yes.

15:51:27 7 Q And were you aware that he had presented with a

15:51:30 8 rash, an erythematous rash on June 3 and June 4, 1994?

15:51:35 9 A Yes.

15:51:40 10 Q And were you aware that he presented with the

15:51:41 11 central punctate on June 3, 1994?

15:51:44 12 A Yes.

15:51:45 13 Q And were you aware that he had an abnormally

15:51:49 14 elevated fever when he presented to Dr. Abemayor on June

15:51:53 15 4, 1994?

15:51:55 16 MR. LEWIS: To the form, Judge. Abnormally

15:51:58 17 elevated fever.

15:52:00 18 THE COURT: A fever.

15:52:00 19 Q Were you aware that his body temperature was

15:52:04 20 abnormal when he presented on June 4, 1994?

15:52:09 21 A Yes.

15:52:10 22 Q It was higher than normal; correct?

15:52:12 23 A Yes.

15:52:13 24 Q Were you aware that he had a swollen lymph node

15:52:16 25 under his left arm when he presented on June 3 and June 4,



VC





1 Jankowski - Plaintiff - Direct 479

15:52:20 2 1994?

15:52:21 3 A Yes.

15:52:28 4 MR. LEWIS: Just to preserve the record,

15:52:29 5 there's no reference to a swollen lymph node on

15:52:32 6 June 3, I believe.

15:52:37 7 Q There's a -- actually, would I be correct the

15:52:40 8 chart makes reference to a palpable axillary node?

15:52:44 9 A Yes.

15:52:45 10 Q Is that a lymph node in the axillary area?

15:52:52 11 A Lymph nodes are in the axillary area. Since I

15:52:55 12 didn't do the examination, I can't tell you if it was a

15:52:58 13 lymph node that was palpated there.

15:53:09 14 Q When you saw Mr. Hanania, did you take a

15:53:12 15 history?

15:53:14 16 A Yes.

15:53:16 17 Q And, he reported headaches for six days; is that

15:53:21 18 correct?

15:53:22 19 A Yes.

15:53:23 20 Q And he told you initially that the headaches

15:53:25 21 were at night on top of his head?

15:53:28 22 A Yes.

15:53:28 23 Q And then in the left temporal area?

15:53:31 24 A Yes.

15:53:32 25 Q And am I pointing to the correct area, the left



VC





1 Jankowski - Plaintiff - Direct 480

15:53:34 2 temple?

15:53:35 3 A No.

15:53:35 4 Q Where is the left temple area?

15:53:37 5 A More lateral.

15:53:38 6 Q To the side?

15:53:39 7 A Yes.

15:53:40 8 Q Do I have it right now?

15:53:41 9 A Yes, you do.

15:53:50 10 Q For the record, indicating halfway between the

15:53:50 11 ear and the front of the forehead, roughly?

15:53:50 12 A More or less.

15:53:50 13 Q Okay. And, he told you at that time he had had

15:53:56 14 neck pain; is that correct?

15:53:59 15 A Yes.

15:53:59 16 Q He told you he had pain when he moved his neck?

15:54:02 17 A Yes.

15:54:03 18 Q And that it exacerbated his headache when he

15:54:05 19 moved his neck?

15:54:06 20 A Yes.

15:54:09 21 Q And did you perform a physical examination,

15:54:12 22 Doctor?

15:54:13 23 A Yes, I did.

15:54:14 24 Q And at the time that you performed a physical

15:54:17 25 examination, did you do a complete examination?



VC





1 Jankowski - Plaintiff - Direct 481

15:54:22 2 A No, I did not.

15:54:23 3 Q What did you do? Describe the physical exam

15:54:26 4 that you performed, please.

15:54:28 5 A Okay. I don't remember in detail without the

15:54:32 6 chart in front of me. I know I examined the head and I

15:54:35 7 examined the neck.

15:54:37 8 Q Well, I'll be happy to let you look at the

15:54:39 9 chart. I don't want you to guess.

15:54:54 10 A I examined the blood pressure, the eyes and the

15:55:00 11 neck.

15:55:00 12 Q Is that it?

15:55:02 13 A Yes.

15:55:04 14 Q You read the chart from June 3 and June 4 and

15:55:07 15 saw that he had a history of rash and the other things

15:55:11 16 I've asked you about; correct?

15:55:12 17 A Yes.

15:55:13 18 Q You didn't look to see if he had a rash at that

15:55:15 19 time, did you?

15:55:18 20 A No.

15:55:18 21 Q Yet, at your -- isn't it true that you have

15:55:21 22 previously stated that Mr. Hanania did not have a rash

15:55:25 23 when you saw him on June 4, 1994; isn't that true?

15:55:32 24 A I stated that I took the history as he was

15:55:35 25 speaking, and he did not complain of a rash.



VC





1 Jankowski - Plaintiff - Direct 482

15:55:39 2 Q Did you ever tell me that Mr. Hanania -- that

15:55:42 3 when you examined Mr. Hanania you found no evidence of a

15:55:47 4 rash?

15:55:48 5 A I don't recall saying that.

15:55:59 6 Q Page 69 of your deposition, ma'am, line 7. Do

15:56:05 7 you recall my asking this question and you giving this

15:56:08 8 response, Doctor? "Question, did you see any evidence of

15:56:10 9 a rash on Mr. Hanania when you examined him on June 30,

15:56:14 10 1994?

15:56:16 11 Answer, no I did not."

15:56:19 12 A On the areas --

15:56:21 13 MR. LEWIS: Judge.

15:56:21 14 THE COURT: You want to read something

15:56:22 15 further, all right.

15:56:23 16 MR. LEWIS: I think he has to read the

15:56:25 17 next --

15:56:25 18 MR. MAURER: I was about to read the next

15:56:27 19 section.

15:56:28 20 THE COURT: There you go. How about that.

15:56:29 21 MR. LEWIS: I'm pressing it, I guess.

15:56:32 22 Q And did you hear me ask this question and give

15:56:35 23 this answer, continuing, "Question, the rash that was

15:56:39 24 noted in the chart in the beginning of the month had

15:56:41 25 completely cleared up?



VC





1 Jankowski - Plaintiff - Direct 483

15:56:44 2 Answer, no, it did not.

15:56:45 3 Question, did you check Mr. Hanania's body on

15:56:48 4 the date of June 30, 1994? Did you check his body

15:56:51 5 completely to see if he had any other skin lesions or

15:56:55 6 rashes?

15:56:56 7 Answer, no, I did not." Do you recall those

15:56:58 8 questions and giving those answers, Doctor?

15:57:00 9 MR. LEWIS: There's no inconsistency with

15:57:02 10 this testimony.

15:57:03 11 THE COURT: Well, that's up to the jury, of

15:57:05 12 course.

15:57:06 13 Q Do you recall those questions and giving those

15:57:08 14 answers, Doctor?

15:57:11 15 A Yes.

15:57:13 16 Q Well, did he have a rash when you saw him?

15:57:17 17 A I did not see a rash in the areas that I was

15:57:19 18 looking at, and he did not report a rash to me, and since

15:57:24 19 it was an urgent visit, I felt that I had to concentrate

15:57:27 20 on the areas that he was acutely complaining of.

15:57:29 21 Q Did you look at the axillary area where he had

15:57:32 22 previously shown a rash to Ms. Kobel and Dr. Abemayor?

15:57:36 23 MR. LEWIS: It's been asked and answered,

15:57:37 24 Judge.

15:57:38 25 THE COURT: Well, yes. She's answered that



VC





1 Jankowski - Plaintiff - Direct 484

15:57:39 2 already.

15:57:42 3 Q Did Mr. Hanania follow you from the examining

15:57:46 4 room to your office that day?

15:57:49 5 A I don't know if he followed me in the hall. I

15:57:52 6 have no idea.

15:57:52 7 Q Well, do you recall him coming into the office

15:57:54 8 while you were on the telephone and waiting until you got

15:57:57 9 off the phone and then telling you he wanted to show you a

15:58:01 10 rash?

15:58:01 11 A No, I do not.

15:58:03 12 Q Are you saying he didn't do that?

15:58:05 13 A Yes.

15:58:12 14 Q And you're certain that didn't happen; is that

15:58:14 15 correct?

15:58:15 16 A Yes.

15:58:22 17 MR. MAURER: May I approach, your Honor?

15:58:26 18 Q Would you please turn to the July 5 note?

15:58:31 19 A July 5?

15:58:32 20 Q Yes. There's a note in the chart dated July 5,

15:58:35 21 1994, urgent visit; is that correct, Doctor?

15:58:38 22 A Yes.

15:58:38 23 Q And, can you tell, looking at this chart, who

15:58:40 24 made this entry? Is this Dr. Heisler?

15:58:46 25 A It seems like his writing.



VC





1 Jankowski - Plaintiff - Direct 485

15:58:48 2 Q Okay. And, would I be correct that Dr. Heisler

15:58:51 3 did a physical examination of Mr. Hanania on July 5?

15:58:56 4 A Yes.

15:58:56 5 Q And would I be correct that he made a notation

15:58:58 6 about the skin?

15:59:01 7 A Yes.

15:59:02 8 Q And what does it say, word for word? Please

15:59:05 9 read it out loud.

15:59:06 10 A It says, "Skin pale, uniform eryth -- rash

15:59:17 11 axilla left," and I don't know if he writes with or

15:59:17 12 without, and he didn't finish the note.

15:59:32 13 Q Doctor, had you seen the rash on June 30, 1994

15:59:35 14 in the same location where it was noted previously in the

15:59:39 15 beginning of June by Ms. Kobel and Dr. Abemayor, would

15:59:43 16 that have been a significant clinical finding for you?

15:59:47 17 A Yes.

15:59:49 18 Q And you saw in the chart that the previous

15:59:52 19 diagnosis was cellulitis; correct?

15:59:55 20 A Yes.

15:59:56 21 Q And had you seen the rash on Mr. Hanania in the

16:00:00 22 axillary area as previously noted on June 3 and June 4 in

16:00:05 23 the CHP chart, would that have led you to conclude that

16:00:08 24 perhaps Mr. Hanania didn't have cellulitis and had Lyme

16:00:12 25 disease?



VC





1 Jankowski - Plaintiff - Direct 486

16:00:13 2 MR. LEWIS: Only to the form, Judge.

16:00:14 3 THE COURT: I'll allow it.

16:00:18 4 A No.

16:00:32 5 Q And, incidentally, you received no instruction

16:00:35 6 from CHP at anytime before you saw Mr. Hanania as to how

16:00:39 7 to diagnose and treat Lyme disease; is that correct?

16:00:44 8 A No.

16:00:45 9 Q Is it correct?

16:00:46 10 A Yes.

16:00:57 11 Q And, you knew when you saw Mr. Hanania that

16:01:00 12 someone who has Lyme disease can have a rash that is red,

16:01:06 13 tender and itchy; correct?

16:01:09 14 MR. LEWIS: Judge, this has been asked and

16:01:11 15 answered 15 minutes ago in -- sequentially.

16:01:15 16 MR. MAURER: I'm sorry, I don't recall it.

16:01:16 17 I'm looking at a different note. I don't mean

16:01:19 18 to be repetitious. I'll accept counsel's

16:01:22 19 representation.

16:01:24 20 THE COURT: Okay.

16:01:30 21 Q You knew, when you saw Mr. Hanania, that an

16:01:33 22 expanding skin rash is a symptom that can be seen in Lyme

16:01:36 23 disease; correct?

16:01:37 24 A Yes.

16:01:38 25 Q And you knew from reading the chart that, in



VC





1 Jankowski - Plaintiff - Direct 487

16:01:40 2 fact, that was part of Mr. Hanania's history from early

16:01:43 3 June, the same June you saw him; correct; he had an

16:01:47 4 expanding erythematous or red rash?

16:01:50 5 A Yes.

16:01:57 6 Q I don't think I asked you this. You knew when

16:01:59 7 you saw Mr. Hanania that the presence of a palpable

16:02:03 8 axillary lymph node is a sign of infection and a symptom

16:02:07 9 that can be seen in Lyme disease; correct?

16:02:09 10 A Yes.

16:02:28 11 Q And prior to seeing Mr. Hanania, you had

16:02:31 12 referred patients to Dr. Eileen Hilton at the Long Island

16:02:34 13 Jewish Lyme clinic; is that correct?

16:02:37 14 A Yes.

16:02:38 15 Q And that was specifically with regard to

16:02:40 16 evaluating possible Lyme disease; correct?

16:02:42 17 A Yes.

16:02:47 18 Q And isn't it also true that you knew, when you

16:02:49 19 saw Mr. Hanania, that Amoxicillin and Erythromycin were

16:02:55 20 two antibiotics that were each effective in treating both

16:02:59 21 cellulitis and Lyme disease?

16:03:02 22 A Yes.

16:03:15 23 MR. MAURER: Let me just see if I have

16:03:16 24 anything else, Judge. Just a little more.

16:03:26 25 Q You diagnosed Mr. Hanania as suffering from a



VC





1 Jankowski - Plaintiff - Direct 488

16:03:28 2 neck sprain; is that correct?

16:03:30 3 A Yes.

16:03:32 4 Q And, it was your opinion, when you saw, Mr.

16:03:36 5 Hanania that the headaches that he had both in the temple

16:03:40 6 area and in the top of his head were being caused by the

16:03:45 7 neck sprain; is that correct?

16:03:47 8 A Yes.

16:03:48 9 Q And you never considered the possibility that

16:03:50 10 those headaches in the temporal area and the top of the

16:03:55 11 head could have been Lyme disease related; is that

16:03:57 12 correct?

16:03:58 13 A Yes.

16:04:03 14 Q And isn't it also true that Mr. Hanania gave you

16:04:06 15 no history of any injury to his neck?

16:04:08 16 A Yes.

16:04:14 17 Q And it's also true that he didn't give any

16:04:16 18 history consistent with him having sustained any injury to

16:04:19 19 his neck?

16:04:20 20 A Yes.

16:04:55 21 MR. MAURER: I have nothing further. Thank

16:04:56 22 you, Doctor.

16:04:58 23 MR. LEWIS: I have very few questions,

16:04:58 24 Judge.

16:05:00 25 THE COURT: Sounds good.



VC





1 Jankowski - Plaintiff - Cross 489

2 CROSS-EXAMINATION

16:05:02 3 BY MR. LEWIS:

16:05:02 4 Q Dr. Jankowski, on June 30, this was an urgent

16:05:08 5 visit; correct?

16:05:09 6 A Yes.

16:05:12 7 Q Is urgent the same word as an acute visit?

16:05:14 8 A Yes.

16:05:15 9 Q Did Mr. Hanania, on June 30, tell you that his

16:05:22 10 rash persisted or expanded after he left CHP on June 30?

16:05:30 11 A No.

16:05:31 12 Q Did he tell you that the rash had expressed pus

16:05:35 13 after he left CHP on June 4?

16:05:39 14 A No.

16:05:40 15 Q Did he tell you that he continued to have fevers

16:05:42 16 after June 4 when he left CHP?

16:05:46 17 A No.

16:05:47 18 Q Did he have a fever on June 30 when you saw him?

16:05:57 19 A No.

16:06:00 20 Q If he had told you that on June 30 his rash had

16:06:05 21 reappeared or that he had a rash on June 30, what would

16:06:13 22 you have done, if anything?

16:06:15 23 A I would have taken a look at the rash and I

16:06:17 24 would have tried to figure out what the reason was for the

16:06:21 25 rash.



VC





1 Jankowski - Plaintiff - Cross 490

16:06:28 2 Q Did Mr. Hanania show you the rash on June 30?

16:06:40 3 A No.

16:06:40 4 Q If he had shown you a rash, what if anything

16:06:40 5 would you have done?

16:06:40 6 A I would have done blood work, I might have

16:06:42 7 checked his throat, I would have done throat cultures. I

16:06:45 8 would have just pursued the evaluation.

16:06:52 9 Q Would you have sent him home without doing what

16:06:57 10 you've just indicated you would be doing?

16:07:02 11 A I'm not sure. I might have, but it depends on

16:07:04 12 the rest of the examination.

16:07:07 13 MR. LEWIS: Okay. May I approach, Judge?

16:07:10 14 THE COURT: Yes.

16:07:10 15 Q I'm going to show you plaintiff's exhibit two

16:07:12 16 which is in evidence, the Long Island Jewish Medical

16:07:15 17 Center records, and I'm going to refer you to an emergency

16:07:18 18 room sheet of July 2, 1994. Do you see that?

16:07:24 19 A Yes.

16:07:25 20 Q I'm not being facetious, but just for purposes

16:07:29 21 of the record, did this emergency room visit of Mr.

16:07:31 22 Hanania to LIJ occur after June 30, 1994 when you saw him

16:07:35 23 at CHP?

16:07:38 24 A Yes.

16:07:38 25 Q Did Mr. Hanania, on June 2, 1994, make any



VC





1 Jankowski - Plaintiff - Cross 491

16:07:45 2 complaints to the LIJ staff?

16:07:48 3 MR. MAURER: Objection. How can this

16:07:51 4 witness state a complete answer to that based

16:07:53 5 just looking at a note, your Honor?

16:07:56 6 MR. LEWIS: Based upon this witness -- I'll

16:07:58 7 withdraw the question. I'll withdraw the

16:08:00 8 question.

16:08:01 9 Q What -- does that emergency room visit in

16:08:03 10 evidence, does it have a section called patient

16:08:07 11 complaints?

16:08:08 12 A Yes.

16:08:10 13 Q What complaints are reflected in that record

16:08:12 14 which is in evidence that Mr. Hanania gave to the staff on

16:08:18 15 July 2, 1994?

16:08:22 16 A It writes here, "I've had a headache for eight

16:08:25 17 days. I saw a CHP doctor two days ago and the medication

16:08:29 18 is not helping."

16:08:30 19 Q Would it have been consistent with acceptable

16:08:32 20 medical practice, if Mr. Hanania had voiced a complaint of

16:08:37 21 the presence of a rash or the return of a rash, that that

16:08:40 22 would have been recorded by the emergency room physician?

16:08:44 23 Would that have been good practice?

16:08:46 24 A Yes.

16:08:50 25 Q I want you to assume that Mr. Hanania told this



VC





1 Jankowski - Plaintiff - Cross 492

16:08:52 2 jury that he walked out of the emergency room without

16:08:56 3 being examined, but returned the following day on July 3,

16:09:02 4 1994. Do you see a copy within this exhibit of that

16:09:08 5 emergency room visit?

16:09:10 6 A Yes.

16:09:11 7 Q Does that emergency room visit, now on July 3,

16:09:15 8 reflect any complaints voiced by Mr. Hanania to the

16:09:20 9 emergency room staff?

16:09:23 10 A Yes.

16:09:24 11 Q Will you read to the members of the jury what

16:09:28 12 complaints Mr. Hanania made, now on July 3, to the

16:09:31 13 emergency room staff?

16:09:33 14 A "Patient complaining of headache for six days.

16:09:36 15 Seen at CHP Thursday. Told to come to ER if headache

16:09:43 16 worsens. Now headache worse on left side radiating to

16:09:48 17 left ear. Unable to taste food."

16:09:51 18 Q I want to show you another part of this

16:09:53 19 emergency room record, Doctor. Does it reflect a general

16:09:57 20 physical examination of Mr. Hanania on July 3, 1984?

16:10:05 21 A Yes.

16:10:06 22 Q Does that physical examination contain entries

16:10:12 23 regarding examination of Mr. Hanania's chest?

16:10:15 24 A Yes.

16:10:15 25 THE COURT: What was the year again?



VC





1 Jankowski - Plaintiff - Redirect 493

16:10:18 2 MR. LEWIS: Did I say '84? I'm sorry.

16:10:20 3 '94, Judge.

16:10:22 4 A Yes.

16:10:24 5 Q I'm in a time warp. Does that record reflect

16:10:27 6 any entries, findings or observation of a rash on Mr.

16:10:31 7 Hanania's chest on July 3, 1994 by the LIJ staff?

16:10:38 8 A No, it does not.

16:10:39 9 Q Would it be reasonable and acceptable medical

16:10:44 10 practice by the emergency room staff to record the

16:10:46 11 presence of a rash on a chest if they observed it during

16:10:50 12 this type of presentation?

16:10:51 13 A Yes.

16:10:53 14 MR. LEWIS: I have no further questions.

15 REDIRECT EXAMINATION

16:11:02 16 BY MR. MAURER:

16:11:02 17 Q It's your testimony that Mr. Hanania did not

16:11:05 18 tell you about a rash on his chest; is that correct?

16:11:08 19 A Yes.

16:11:09 20 Q And, therefore, you didn't look to see if it was

16:11:11 21 there; correct?

16:11:13 22 A Yes.

16:11:14 23 Q And you didn't give any consideration to the

16:11:16 24 possibility that the rash might be there. You weren't

16:11:19 25 concerned with it at the time; correct?



VC





1 Jankowski - Plaintiff - Redirect 494

16:11:21 2 A Yes.

16:11:22 3 Q And, how do you explain the notation of Dr.

16:11:31 4 Heisler, who was your medical director at CHP; correct?

16:11:34 5 A Yes.

16:11:35 6 Q How do you explain the presence of the erythema

16:11:38 7 migrans -- I'm sorry of the erythematous rash in the left

16:11:41 8 axilla area of Mr. Hanania's body on July 5 if it wasn't

16:11:46 9 present when you saw -- when you saw him? Can you explain

16:11:51 10 that?

16:11:52 11 MR. LEWIS: Objection.

16:11:53 12 THE COURT: All right. I'll allow it.

16:11:59 13 A I have no explanation for who saw what on each

16:12:02 14 examination. I know that if I had had a complaint of a

16:12:06 15 rash, I would have looked at it and done something about

16:12:09 16 it.

16:12:20 17 MR. MAURER: Nothing further.

16:12:20 18 MR. LEWIS: Absolutely nothing. Thank you,

16:12:20 19 Doctor.

16:12:20 20 THE COURT: Absolutely nothing. Okay. You

16:12:20 21 can step down. Thank you.

16:12:20 22 THE WITNESS: Thank you.

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