Setting: We are in a downtown Seattle conference room. The sky is deep blue. The sun is shining. Its rays bounce like mirrors off the skyscrapers and rippling waterways below us. Eric the videographer is at the far end of the table. Jane the court reporter is her usual excellent self. Cheryl our medical negligence paralegal is by my side. Across the table are the defense lawyers. In front of a gray screen sits the witness. The defense side is somber. I am feisty. We are about an hour an a half into the deposition.
Q. And similarly endocarditis, if not properly diagnosed and treated will be fatal; correct?
Mr. King: Objection. Asked and answered. You may respond.
A. Endocarditis like other things, if not treated, could certainly be fatal, yes.
Q. By Ms. Koehler: All right. In this case it was fatal; am I correct?
Mr. King: Objection. Assumes facts not in evidence. You have a position that he had endocarditis at the time. We don’t have to agree with that. That’s your position. We have a contrary position. So you shouldn’t ask him as if it’s an established fact. (Mr. King is not yelling or even shouting. He’s very seasoned and just trying to put me in my place).
Ms. Koehler: (Becoming theatrical in a totally Elle Woods kind of way) Okay. You’re like making horrible objections, terrible, some of the worst I’ve ever heard. But I’m not going to get mad about it.
Mr. King: I don’t think you should.
Ms. Koehler: I should get mad about it. But I like you. I’m not going to get mad about it. But it’s not proper.
Mr. King: Well, I don’t think your question’s proper for the reasons stated.
Ms. Koehler: Well, my question is not coaching the witness. It’s just a bad question then.
Mr. King: The question isn’t complying with courtroom standard. That’s my problem with the question.
Ms. Koehler: My intent, though misguided, is honorable. Yours —
Mr. King: (He sees where this is going and tries to head me off by interjecting) So is mine.
Ms. Koehler: Your intent is not. You’re trying to interfere with my deposition. Don’t do it.
Mr. King: I’m not trying to interfere. And unless you can read my mind, I don’t know what the basis is for presuming I have a maligned intent. (Props to Mr. King – he can definitely think on his feet. Quite fun to spar with actually)
Ms. Koehler: Coaching the witness. All right. Back to my question which I completely forgot.
Photo: Me with an Italian Emperor
Ms. A (she of the 257 objections ) is defending another deposition. This time of an electrical expert. Her stream of objections has not changed course since Mr. T’s deposition.
I challenge her on the record. This is to satisfy CR 26i should I decide to bring a motion:
K3: What’s wrong with the form? I think you’re being abusive with the objections.
A: You’re not setting a foundation, you’re just saying — you’re making conclusory statements and then asking him about it. He has nothing to say that —
K3: I mean, what the heck was wrong with that question? The foundation was page is 118, we’ve been talking about it. I don’t understand. I want your objections to slow down or stop, I don’t want them to continue. So if you want to educate me with what was wrong with that question —
A: I just did.
K3: I just heard it. It as a clear question and it was a clear answer, and you objected for no reason.
On top of that, it turns out the defense has forgotten to provide me with 8 of the 9 CD Roms of material provided by the expert. We recess. I bring a motion for “order instructing defense counsel to cease interfering in deposition with improper ‘form’ objection.”
In response, the defense charges that I have filed a frivolous motion, made for the improper purpose of harassment, and requests $2,000 in sanctions.
This ticks me off. Makes me upset. Makes me think bad things. And even makes me worry. Am I out of my mind. Don’t I know the difference between a good and bad objection. Will the court be upset that I’ve brought another deposition abuse motion. No – I need to bring this motion. If I don’t she’s going to continue to think she’s doing it right.
I go for a run.
I did not ask for sanctions when I filed this motion. Didn’t ask for anything other than an order telling the defense attorney to knock it off. I’m going to stay on high ground. Not stoop to swing back. I write the reply brief in as calm a tone as I can muster.
The Court grants my motion and also elaborates as follows:
“The court grants the motion that motions (sic she means objections) as to form are too indefinite at times to rule on and interfere with the flow of questions and answers. (The court notes that Mr. L’s materials were woefully incomplete which is a much more serious matter of delay and confusion, violating prior orders of the court). Plaintiff’s first example (“when was the first time”) is well founded. The second example, (“well you asked him”) is not well taken as abusive, because the witness didn’t know if it was volunteered or asked. But, SO WHAT!!
Save your strength for something important. “Form” objections are not helpful to parties or court and can lead to confusion or coaching. Objections such as foundation, compound, asked and answered, and vague are permissible. Defendants shall pay expenses of this re-do continuation of Mr. L’s deposition.”
Motion and Order: SKMBT_C55215082111290
Photo: Dan wore this outfit to our last attorney meeting. I want his shirt.
The Tale of Mr. T has one more chapter. Following part 2 of his deposition, I am on a seminar panel for AAJ in Montreal along with Federal Judge Bennett. He is talking about his now famous order sanctioning a national defense firm for deposition abuse. His speech is exceptional. He urges us to not be content with the minimum bar set by court rules . To strive for a higher ethical standard. He is inspirational on so many levels.
As he’s talking, I’m thinking – hey. I just suffered through that.
In Mr. T’s secnd deposition, new defense counsel objected excessively. It is so notable that after the transcript arrives, John counts them and re-counts them. 257 by this defense attorney (not including the objections from Mr. T’s personal attorney). In a transcript that is only 150 pages long.
I have plenty on my plate. But am moved by Judge Bennett’s call that we insist upon protecting the integrity of our proceedings. So I stay up late and write a motion to strike and remove those objections and to have the defense pay the cost to edit the video. This is met with a vehement response from defense counsel. Charging that the motion is frivolous and ” an inappropriate and mean spirited personal attack on defense counsel and another attempt by Plaintiffs to turn this into a side show.”
Ultimately The court partially grants and partially denies the motion:
Ins. Co is correct that parties have not met and conferred, insofar as they have not designated which part of deposition will actually be used at trial. Court will not strike all objections by Ins. Co; although many of the “asked and answered” might be sustained, many of the “form” objections would be denied. Until record is determined, court’s ruling would be confusing. After record if finalized, costs of editing will be shared on this video dep.
The table has now been set. This counsel and I have one more deposition to finish. Will she heed the lessons inherent in the court’s ruling. Or will she not. Stay tuned.
Motion and Order: SKMBT_C55215081913590
Photo: Nala Objecting
John doesn’t get angry.
He may get grumpy (on rare occasion).
But he doesn’t get angry.
I take for granted his smiles. His good attitude.
John do this. John do that.
Okay, he says and does.
I can be pretty bossy. Comes with the territory of being a trial lawyer.
But today John is not happy.
We have been trying to schedule a deposition.
This doesn’t sound like it should be difficult. But it almost always is. Have to find a time that works for everyone. In this case, the witness who is not a party is also bringing his own lawyer. Finally find a date. Send out the notices. Book flight and car on Monday. Always wait just to make sure.
2:00 pm Wednesday email from defense – “unfortunately” the witnesses’ “counsel can longer attend the deposition on Friday.”
2:05 pm email from me – “These things happen and I don’t blame you. But crap.”
John has been rushing around helping get materials ready for deposition and doing many other things for many other cases.
He comes into room. I say – the deposition is off.
And then mad John appears.
This rare sighting results in the above picture.
Photo: Mad John
I met Allison when I was a defense lawyer. She was so darling that she became my go-to court reporter. When I became a plaintiff lawyer, nothing changed. I still used Allison. Others liked her as well, so Allison grew her business (Verb8tim Reporting) and hired Jane.
Yesterday, Allison was the court reporter for me. This morning it’s Jane’s turn.
Court reporters are neutral professionals. They don’t take sides. Allison and Jane are my two favorites. They always have a smile. Never fall asleep (I would). And do a great job.
Today, we are shooting the breeze, talking about Jane’s newest greatest steno machine. Goodbye large metal stand carried in a suitcase. We chat about her dog and dad. Dad has just turned 99. Amazing. And about some of the funny things she’s transcribed over the years. Like the witness who testified that the “car driver was driving erotically.”
The moral of this story is that court reporters are people too. Here are some tips on how attorneys should treat a court reporter.
- Say good morning, how are you, yes please and thank you.
- Make eye contact occasionally.
- If the deposition is going to go through the lunch hour – make sure that’s okay. (I once knew a court reporter who had hypoglycemia and grew faint when lunch time came and went).
- If the deposition is going to go past normal business hours – make sure that’s okay in advance.
- If you need a transcript on a rush basis, do not yell and throw a fit.
- When reading, do not race through the text.
- When speaking do not mumble or speak with your chin resting on your hand
- Ask the court reporter where you should sit if you are unsure
- Do not talk at the same time as the witness
- Do not talk at the same time as the other attorney
- Do not talk at the same time as the interpreter
- Wait until the court reporter has finished marking an exhibit before you start talking again
- Make sure to provide a case caption
- Be prepared to help provide the correct spellings for names and other case specific terminology
Photo: Jane with her light speed steno machine
5:45 am. Phone beeps. Count backward down to the minute have to get up to get out on time. 5:56 am get up.
Race through morning ritual. Clothes put out the night before. Black crop jeans. Black t-shirt. Deconstructed BCBG black and gray striped jacket. Black doc martens. 2 black bags. black raincoat. Slick back hair that used to be black and now in places looks like tinsel. Grab 2 luna bars, fat sumo orange and honey crisp apple for later.
Walk Nala to her patch of grass and back. Hop in car. Drop her at doggie day care.
Drive to airport. 3rd floor full. 5th floor full. Find a spot on the 6th floor at the far edge. Type in 6 – 55 on phone to remember spot. Magically am TSA pre-checked so hop through security line. Get couscous cup from Dish d’lish for lunch and bottle of water.
7:20 Plane is on time and we board. Eat 1 luna bar. 8:15 get off in Portland. Go to rental counters – look at phone. Booked on Budget. Drat. Hate Budget in Portland. Have to take a shuttle. Email Cristina and Anne whining about Budget. No other passengers on shuttle. No wait at rental counter. Am assigned blue car that is not excellent. Can’t figure out how to operate windshield wipers. Start driving. Apply brakes and car jerks to stop. Touchy.
Input address and following phone commands to destination of today’s deposition. Drive about 15 minutes past downtown. To a vast non-descript office park. 9:35. Have almost an hour. Decide still hungry. Type the word bakery into phone. Follow commands. Bakery turns out to be a 7-11. No thank you. Type in donut. Fairly close. Is in the JoAnn Fabric complex. Sesame Seed Donuts or something like that. Never had a sesame donut before. Don’t try one now. Get a glazed old fashioned. Hold door open for elderly man carrying his newspaper. He’s smiling in anticipation. Consider this proof of merits of eating deep fried sugar coated dough.
Get back into rental. Phone rings. Answer. It’s my bank. Need to transfer money from one checking account to the other. Thank them for great customer service. Drive back to office building. Park. Open computer. Transfer the money. Eat donut. Wipe sugar off face. Grab black bags. Exit blue bomber. Climb three flights of stairs. Open glass door. Ask for Mr. T.
10:20 Follow receptionist down long blank beige hall to windowless conference room. Say hello to court reporter. She reminds me of my favorite librarian back in the day. Spectacles. Carefully coiffed hair. Is wearing a golden colored hummingbird broach on the lapel of her brown tweed-like jacket.
10:30 Mr. T arrives along with defense counsel.
Mr. T is a lawyer. Hired by insurance companies. Rumor has it that he is quite unpleasant. Am willing to suspend judgment and give him the benefit of the doubt.
He is wearing strict lawyer garb. Looks older than his probable age. Balding, overweight and with a circle beard (goatee connected to a mustache). The soft spoken, gracious court reporter asks to take his photo (standard practice). He tells her no.
What a gem.
For the next 6 hours less a 45 minute lunch break (eat couscous and fat sumo), we stay in that room. Locked together. Unpleasantly.
His involvement on this case started four years ago. He is a fact witness. He has done nothing to prepare for the deposition. He hasn’t looked at his file. Which is about 5000 pages worth. He has for the most part – no memory independent of what is contained in his file. So he needs to see the file document in order to answer the question. When I show him the file document, then he says it doesn’t refresh his memory and that the document speaks for itself.
5:00 approaches. He says he has to go. Actually he’s been saying this for awhile now. Repeatedly leaning over to look at the clock on defense counsel’s computer. Shifting about in his chair. Asking the court reporter if she’s taping the proceeding. So he can count the minutes where I am looking through documents. Acts even more rudely. If that’s possible.
Say something to him like if you stop whining we can finish more quickly. He doesn’t like that and jumps up. Says this is over. Walks out. Defense counsel politely asks – how much longer would it take you to finish Karen. Say – gosh was almost done maybe 10 or 15 minutes at most. He leaves to talk to the witness. They return. Mr. T says – you have 9 minutes.
Ask some more questions. Read a colloquy. Tell Mr. T it is not a question so he doesn’t need to respond. He looks at me as if am an ant he’d like to crush with his heel. Defense counsel objects to the colloquy. Mr. T leaves. Exchange pleasantries with defense counsel who has been totally pleasant and professional. Say goodbye to court reporter as she packs up.
Walk down three flights. Open building door. It is dark. Head to car. Over here. Wait. Maybe over there. Walk around a few minutes and realize. Wrong parking lot. Go back into big box building down long beige entry and out the exact other side. Locate car by clicking key button. Lights flash. Get in. 5:30. Drive in hideous rush hour traffic back to Budget. Get lost because phone has no idea that Budget is not with the other companies in the terminal. Call office. Tell Anne how rude Mr. T was. She commiserates. 6:20. Have missed 6:30 flight. She rebooks me.
Arrive at Budget. Take shuttle to airport. Cristina calls. Tell her how rude Mr. T was. She commiserates. Get vegetable salad from take out place and a Lindor milk chocolate ball – the one in a red wrapper Reach gate. 7:05. Just in time to board plane departing at 7:30.
Plane delayed. Eat salad and chocolate.
7:25 Plane arrives. Board. 7:48 plane takes off. Eat apple. Read book on ipad (Fall of Giants by Ken Follett).
8:30 Arrive back in Seattle. Phone tells me where am parked. Go to 6th floor. Get in. Pay $28 to exit. Call Steven. Tell him how rude Mr. T was. He commiserates.
Drive to doggie daycare. They retrieve Nala. 9:20 She is giant fur ball. They have sprayed and fluffed her with a scent that is supposed to mask the odor of what happens when doggies roll around together for 12 hours. It isn’t working.
9:30 home. Read text message from Sol – sorry you had to deal with Mr. T. Text back – no problem it’s part of the job description.
Put away load of laundry. Give Nala some water. Eat handful of raspberries.
10:15 throw on running gear. Go downstairs to treadmill. Run while watching an episode of Game of Thrones. Volume on high to drown out treadmill noise. Daenerys Targaryen is struck by her abusive brother and knocked to the ground. She reaches over to a pillow whereupon lies a magnificent bejeweled barbarian styled necklace. Swings it back. Strikes him in the face. Cuts his cheek. Calmly furious, warns if he lays hands upon her again, she will have them (the hands) removed.
Channel Daenery to facilitate discarding of pent up Mr. T related aggression. Run until done. Call it a day.
Photo: Where I run when it is too dark outside.
The betrayal via rudeness by a former associate was not just a story. It was part of a case.
I said: we will not go forward on a deposition until the court rules on a pending a motion for protective order. He responded by threatening to seek terms against me. So we (Garth) filed a motion to expedite the protective order hearing.
As expected, when push came to shove, the defense lawyer did not seek the terms he threatened. Still, he couldn’t resist: a) insinuating that because he used to work for us, he knew us and what we were doing; and b) engaging in hyperbole.
- “I am a former associate and law clerk at the firm of Stritmatter Kessler Whelan Coluccio, which is currently known as Stritmatter Kessler Whelan. I have reviewed Exhibit 8, infra. In the upper right hand corner is a circled “K3″. I know this to be Karen Koehler’s initial that she has reviewed a document.”
- “Plaintiff’s counsel’s speculation regarding some nefarious plot by a rogue associate is highly inflammatory, completely false, and contrary to the record.”
In response, the Federal Judge swiftly entered our motion to expedite the protective order hearing. The defense filed its ojection to our protective order motion. And the Court granted our motion almost entirely in full.
Deposition protective order: SKMBT_C55214050508300
Part 3:Depositions of treating providers in a medical negligence case resulting in bilateral leg amputations.
One of the hospital’s defenses was that it was a small community hospital. It did not have all the fancy equipment of a major urban hospital. The problem with this defense was that the hospital didn’t need an expensive machine to make the correct diagnosis. All it needed, was for someone to: a) notice the red flags; and b) pull a hand held doppler unit out of a cupboard.
Let’s see what was done to check the patient’s pedal pulses:
The Physician’s Assistant
22 Q What did you find with respect to the legs when you did
23 your examination?
24 A My examination revealed pedal edema, generalized
25 tenderness throughout the lower extremities, cool to
1 touch with deep tendon reflexes intact and sensation
2 intact and capillary refill time intact.
3 Q What were your conclusions with respect to Ms. Ss’
4 limbs, lower limbs?
5 A That she was edematous. I believed it was likely her
6 CHF (Chronic Heart Failure) that was causing the edema. And that she had some
7 tenderness that I would treat and work up.
8 Q As you sit here today, have you second-guessed yourself?
9 Did you make the correct call that day?
10 MS. EK: Object to form.
11 A Correct call in what sense?
12 Q (BY MS. KOEHLER) In your evaluation of her lower
14 A Did I do a good job?
15 Q Do you believe that you did the correct course of
16 treatment for HS?
17 A I believe I examined her appropriately and treated her
18 with what knowledge we possessed to the standard of what
19 she deserved as a patient at our hospital.
20 Q Really?
21 A Yes.
22 Q During your relatively short career had you actually
23 examined and treated a patient who ultimately would go
24 on to lose their legs?
25 A I have not.
1 Q She was your first and only?
2 A Yes.
3 Q How did you check the pulses in her legs?
4 A I had her lift her big toe to approximate where her
5 pedal pulse would be and then using my first and middle
6 finger attempted to feel for pulses.
7 Q Could you feel her pulses?
8 A I could not.
9 Q Did you make another effort to feel her pulse? Did you
10 use any kind of machine?
11 A No, I did not use any kind of machine.
12 Q Why not?
13 A She presented with an amount of edema that palpable
14 pulses would not be obtainable.
15 Q Did you attempt to use a Doppler?
16 A I did not.
17 Q Why not?
18 A I believed her main issue was the CHF and pulling the
19 fluid off would resolve her symptoms.
20 Q But her main issue wasn’t her CHF, right?
21 MS. EK: Objection. Argumentative.
22 A I – I don’t know that.
23 Q (BY MS. KOEHLER) If you couldn’t check her pulses
24 manually, why didn’t you use a Doppler?
25 A As I said, I believed it was the CHF that was causing
1 the pedal edema and diuresing, her as we did last time,
2 would relieve that.
3 Q What – how did you double-check your belief? Did you
4 take your belief to one of the doctors that was on call
5 or on staff and – and tell them of your assumption that
6 the lack of pulse was due to CHF?
7 MS. EK: Object to form. Compound and
9 A Are you asking me if I discussed the patient or
10 discussed that specifically?
11 Q (BY MS. KOEHLER) That specifically. I’m asking about
12 the specifical – specific decision when you couldn’t
13 feel a pulse —
14 A Mm-hmm.
15 Q — and just to assume that it was related to CHF and
16 that another course of treatment would resolve it, was
17 that something that you did on your own or did you use
18 the resources at the hospital to consult with at that
20 MS. EK: Object to form.
21 Go ahead.
22 A I don’t remember if I discussed that specific finding.
23 Q (BY MS. KOEHLER) Who would you have discussed it with?
24 A Dr. B.
25 Q Was it concerning to you that you could not detect her
1 pulse in her legs?
2 A No.
3 Q How many patients have you examined where you could not
4 palpate their pulse?
5 A I can’t give an exact number, but many who have
6 edematous lower extremities and CHF.
7 Q Yeah. Like how many?
8 A I honestly couldn’t give a number. It’s moderately
9 small to moderately large, I would guess.
10 Q Within – so you had been – you had been doing this for a
11 year. You can’t give us an estimate? Was it something
12 that happened all the time? Was it something that was
14 A Well, we have —
15 MS. EK: Objection. Calls for speculation and
16 asked and answered.
17 A We have quite a few CHF patients and at least half of
18 them will come in without palpable pedal pulses.
19 Q (BY MS. KOEHLER) Okay. And how many of them will come
20 in with mottled legs that are cool to touch and – and
21 have no pulses?
22 A All three of them?
23 Q Yes.
24 A I would say not many.
25 Q Okay.
12 Q (BY MS. KOEHLER) Did you have access to a handheld
14 A Excuse me. Yes.
15 Q Where was it?
16 A I don’t know.
17 Q Would it have been on the third floor?
18 A Not necessarily, no.
19 Q Would it be difficult to – if you wanted it to get it?
20 A No.
21 Q And if you were to use a handheld Doppler, how long
22 would that exam take?
23 A Anywhere from 30 seconds to a minute depending on how
The P.A.’s mantra – is that the patient had CHF (chronic heart failure) which caused her legs to be edematous (swollen) and because of that he could not detect pedal pulses. Interestingly, the ER doctor testified exactly the opposite.
The ER Doctor
14 Q Did you test her pulses in her legs?
15 A Yes.
16 Q Where is that noted?
17 A It’s not. It isn’t.
18 Q What is pedal edema?
19 A Pedal edema is swelling of the lower extremities, usually
20 foot, ankle region.
21 Q She had that?
22 A Yes.
23 Q How significant was the swelling?
24 A I don’t remember it being horrible, but enough to where
25 it bothered her.
12 Q (BY MS. KOEHLER) So you believe you did check her pedal
13 pulses but you didn’t write them in the chart?
14 A I do.
15 Q And if you check pedal pulses, aren’t you supposed to
16 write them in the chart?
17 A Absolutely.
18 Q And why is it important to write them in the chart?
19 A Because it would be clearly documented.
20 Q How did you test for them?
21 A Just by palpation.
22 Q Was that easy to palpate?
23 A I don’t recollect.
24 Q Could you easily detect them?
25 A I don’t recollect.
1 Q Is it significant whether it’s difficult to palpate?
2 A It – it can be. But it depends.
3 Q Sorry. Just one moment. Did her edema inhibit you in
4 any way from checking her pulses?
5 A I don’t remember her being that edematous. I mean she
6 had edema. But there’s levels of it I guess. And I
7 don’t remember hers being just so doughy and large that
8 you couldn’t.
9 Q How – how much edema was present?
10 MR. ANDERSON: Object to the form. Go ahead and
11 answer if you can.
12 A Try to. She had some pitting edema. But it wasn’t like
13 she’d had an extra inch or layer of subcutaneous tissue
14 or anything like that.
15 Q (BY MS. KOEHLER) Was edema only in her legs?
16 A Yes. As I recall, yes.
17 Q Was it from the knee down, from the thigh down?
18 A It was mostly just from the – the ankle area up into the
19 – what we call the pretibial region.
20 Q All right. Bilaterally?
21 A Yes.
22 Q Equal?
23 A Reasonably so.
3 Q If you were – if you were unable to detect a pulse in a
4 leg, would you use a handheld Doppler?
5 A You – oh, you could to see if they had a pulse. I guess
6 I misunderstood your question. Yes, you could.
7 Q Okay. Would that be standard of care?
8 MS. EK: Object to the form of the question.
9 MR. ANDERSON: Overly broad. But you can answer
10 if you understand it.
11 A It depends.
12 Q (BY MS. KOEHLER) If you couldn’t detect a pulse, would it
13 be standard of care for a physician in your hospital to
14 use a handheld Doppler to see if you could detect a
16 MS. EK: Object to the form of the question.
17 This isn’t a witness who’s an expert for all the doctors’
18 specialties in the hospital.
19 MR. ANDERSON: Lacks —
20 MS. KOEHLER: Your speaking objections, they’re
21 improper. You’re just supposed to say, “Object to the
23 MS. EK: You’re asking him an expert question.
24 It’s inappropriate.
25 MS. KOEHLER: Then you just say, “Object to the
2 MS. EK: That’s not my objection. My objection
3 is your question is inappropriate.
4 MS. KOEHLER: No. But your – your objections
5 are inappropriate.
6 MR. ANDERSON: I’m going to join that objection
7 and also say lacks of foundation. Go ahead and answer if
8 you can.
9 THE WITNESS: Can you repeat the question? I
10 got lost there. I’m sorry.
11 MS. KOEHLER: I’m shocked that you couldn’t
12 follow that question now. The court reporter will read
13 it back to you.
14 (Pending question read by reporter.)
15 MR. ANDERSON: Same objection.
16 MS. EK: Same objection.
17 A Because the answer is still not necessarily.
18 Q (BY MS. KOEHLER) Can you elaborate?
19 A Yes. I mean I think that it may be helpful. If you find
20 it with that, that could be helpful. If you don’t, it’s
21 still – there’s still other means you might try to use to
22 find a pulse, once again getting radiology more involved.
It is a perfect mirror opposite. The ER doctor says HS does not have much edema and that he felt her pulses but forgot to write them down in his chart notes. The PA says she had too much edema and that he could not feel her pulses.
Enter the nurse. Her knowledge is based upon her nursing notes. This means, if she doesn’t keep good notes, she doesn’t have good knowledge.
The Nurse :
10 Q Okay. So she had edema in both of her legs?
11 A Yes. But one plus is not much at all.
12 Q She had some edema in both of her legs.
13 A Mm-hmm.
14 Q Both of her legs are mottled. And you don’t know if they
15 were cool to touch?
16 A I do not recall.
17 Q And she had dusky nail beds. But you don’t know if those
18 were of the feet or of the hands.
19 A I do not recall.
20 Q Did you check her pulses?
21 A I do not recall. I’m sure I did, but I do not recall.
22 Q Did you chart that you checked her pulses?
23 A Well, we have a place where we chart that. And we chart
24 by omission. So if it was normal or present, then we
25 don’t put anything down generally.
1 Q Did she have pedal pulses?
2 A Let me look through here. I don’t remember. Where is
3 the cardiac? Where is the cardiac place? Oh, here we
4 go. I didn’t mark anything so it must have been present.
5 I can’t surmise that because I don’t remember. But if we
6 leave it blank, that generally means that they were
7 present if we checked them.
8 Q They were present if you checked them, but you don’t know
9 if you checked them or not?
10 A No. It was two years ago. I don’t remember the
11 assessment. I don’t remember her. I’m sorry.
13 Q Did you ever use a doppler on Ms. S?
14 A I don’t remember.
15 Q Can you . . . If you choose to use a doppler if you
16 can’t detect a pulse, are you authorized to use a
18 A Yes.
19 Q How difficult it is for – is it for you to get one?
20 A It’s not.
21 Q Where are they located?
22 A In the medication room in a cabinet.
23 Q Are they on the same floor?
24 A Yes.
25 Q Do you need special permission for that?
1 A No.
Photo: Slide from Timeline PPT by Duane Hoffmann.
Part 2: Deposition of treating providers in a medical negligence case resulting in bilateral leg amputations.
This next deposition excerpt series is summed up as: The Doctor Versus The Nurses.
Being evasive in a deposition does not play well in front of a jury. The witness here believes he is scoring brownie points by not answering the questions. The best way to deal with an evasive witness is to let them evade to their heart’s content.
Again, this does not work so well if the lawyer asking questions sticks strictly to an outline. If an evasive answer is given and you simply ask the same question again and again you become part of the problem. You will draw the customary objection: asked and answered. The witness will begin to simply repeat the same evasive answer to the same question. Until someone gives up.
In this excerpt, the doctor uses a word that will ultimately become perhaps the single most important word in the liability case. The word is not a medical term. It is a word of common usage. It will impact credibility. And will create a hole for the defense that will be impossible to dig out from. The word is: significant.
15 Did you review the nursing notes?
16 A We typically do not review the nursing notes.
17 Q If the nurses note abnormalities, how do you get that
19 A If they think it’s significant, they report it to us.
20 Q If there is a significant abnormality, do they have a
21 duty to report it to you?
22 MS. EK: Objection. Calls for a legal
24 A I cannot speak for them.
25 MS. GRIFFITH: Join.
1 Q (BY MS. KOEHLER) Do you expect nurses to report any
2 abnormal condition or symptom to you?
3 A If it’s significant.
4 Q How do they know if it’s significant or not?
5 A It’s their job. I can’t speak for them.
6 Q Is a – is it a significant finding if lower extremities
7 are mottled?
8 MS. EK: Objection. Incomplete hypothetical.
9 MS. GRIFFITH: Join.
10 A Depends.
11 Q (BY MS. KOEHLER) Were you aware – made aware by any
12 nurse at 8:30 p.m. – no; sorry – 8:30 would be a.m. on
13 October 27 that Ms. Spriggs’ lower extremities were
15 A No.
16 Q Would that have been a significant finding?
17 MS. EK: Objection. Incomplete hypothetical.
18 A Yeah. I can’t speak for the nurses.
19 Q (BY MS. KOEHLER) If you don’t know whether having
20 mottled extremities is significant, how would a nurse
21 know that?
22 MS. EK: Objection. Argumentative.
23 A Sorry. I don’t get that question.
24 Q (BY MS. KOEHLER) Why is it . . . Why is having mottled
25 legs not a significant finding?
1 A Who said it’s not significant?
2 Q Is it significant?
3 MS. EK: Objection. Incomplete hypothetical.
4 A I can’t – I can’t tell what the nurses saw or wrote.
5 Q (BY MS. KOEHLER) If legs are mottled, is that a
6 significant finding?
7 A I cannot speak for the nurses. You are asking a
8 hypothetical question.
9 Q I’m asking you as a doctor. If you saw —
10 A As a doctor —
11 Q As a doctor, if you saw mottled legs, would you find that
12 to be significant?
13 A Sometimes patients have skin changes that, you know,
14 would come and go, so this would make it insignificant.
15 If it’s persistent, it would make it significant.
16 Q Would it be significant if the change to the mottled legs
17 25 minutes later was that they were now cool and mottled?
18 A It – it doesn’t make much difference, the fact that it’s
20 Q Cold and mottled is no different than just being mottled?
21 A Again, you know, depends on the patient temperature, the
22 circumstances. This is very hypothetical. Many patients
23 have cold extremities with different diseases.
24 Q Well, you had known Ms. S from a month-and-a-half
1 A Correct.
2 Q You knew her medical condition.
3 A Correct.
4 Q She didn’t present with mottled extremities at the time?
5 A Not that I recall, no.
6 Q They’re not noted in any chart note in September.
7 A You mean in September?
8 Q Correct.
9 A No.
10 Q So in October, if the nurses were noting that she was
11 having some swelling and her lower extremities were
12 mottled, would that be significant?
13 MS. EK: Asked and answered.
14 Q (BY MS. KOEHLER) I’m asking specifically with respect to
16 A Swelling is part of the congestive heart failure.
17 Having, you know, skin changes can be part of the
18 disease, too.
19 Q So you don’t feel that those are significant findings?
20 MS. EK: Objection. Argumentative.
21 A I cannot speak for the nurses, what they saw and whether
22 it’s significant for them or not.
23 Q (BY MS. KOEHLER) But as a doctor, you would not be
24 concerned with HS, who you knew from a month
25 before, having mottled legs with swelling?
1 MS. EK: Object to the form and asked and
2 answered approximately six times now.
3 A We are always concerned about all our patients with any
5 Q (BY MS. KOEHLER) If the cool, swollen, mottled legs were
6 also painful, would that be a significant finding?
7 MS. EK: Objection. Improper and incomplete
9 A Patients with congestive heart failure tend – tend to
10 have leg swelling and leg pains.
11 Q (BY MS. KOEHLER) Cool and mottled?
12 A I did not see her the first day, so I cannot speak for
13 cold or mottled.
14 Q If the patient had swollen, cold, mottled, painful legs,
15 also with nonpalpable pedal pulses, would that be
16 significant to you?
17 MS. EK: Objection. Still incomplete and
18 improper hypothetical.
19 A I did not see Ms. S the first day, and I cannot
20 really comment on her examination. Part of the
21 congestive heart failure symptoms would be leg swelling,
22 you know, painful legs, you know, color changes.
1 (BY MS. KOEHLER) Were you advised at 8:30 a.m. on
2 October 27th by CP, LPN, that Ms. S’
3 lower extremities were mottled?
4 A No.
5 Q Were you advised at 8:55 a.m. by CA, RN, that
6 Ms. B had bilateral legs that were cool and mottled?
7 A No.
8 Q You were advised or . . . Let me ask this: Were you
9 advised specifically by MC at approximately
10 10:46 that Ms. S had plus one edema in the
11 bilateral lower legs and her pedal pulses were not
12 palpable and she had bilateral lower extremity pain
13 sensitive to touch and generalized achiness?
14 A I do not remember.
15 Q Were you advised at 16:52 on October 27th by RM
16 CAN, that there was mottling in Ms. Ss’
18 A No, not as much as I remember.
19 Q At 22 – the hour of 22 o’clock on October 27th, were you
20 notified by JR, RN, that bilateral legs were
21 cool and mottled?
22 A I do not recall that I was notified.
23 (Clarifying interruption by reporter.)
24 A I do not recall that I was notified about this.
The dilemma created by this testimony, is that nurses are trained professionals too. They may not have the same level of schooling as a doctor. But their care and decisions can have a profound impact on a patient’s health. Will the nurses back the doctor – admitting in essence that it is their fault he did not know of the patient’s clinical issues. Or will the nurses contract the doctor. Let’s find out.
9 Q When you did the shift assessment and found the patient
10 to have purple feet, no pulses from her knees down, did
11 you transmit that – well, first of all, did you find that
12 to be a significant finding?
13 MS. EK: Object to the form of the question. It
14 was mottled feet.
15 MS. KOEHLER: As what?
16 MS. EK: Mottled. You said purple feet.
17 Q (BY MS. KOEHLER) Were her feet purple?
18 A Mottled could be a variation of colors.
19 Q What color were her feet?
20 A That’s a subjective judgment.
21 Q In your subjective judgment, what color were her feet?
22 A Mottled. I don’t know how to describe in color any
23 better than that.
24 Q Well, you’ve used the words dusky. What does dusky mean?
25 A Dusky can mean gray. It can mean darker pigmentation.
1 Q So were her feet of a darker pigmentation?
2 A Yes, than the rest – compared to the rest of her body.
4 Q Would you describe them as being purple or not?
5 A I would describe them as mottled.
6 Q All right. What color was the knee area compared to the
7 feet area?
8 A Less mottled.
9 Q How much less mottled?
10 A To – to a degree of severity?
11 Q Yes.
12 A I wouldn’t be able to make, you know, a quantification on
14 Q Were they visibly noticeably a different color than the
15 rest of the upper part of her body?
16 A Yes.
17 Q From the knees down?
18 A Yes.
19 Q With the feet the darkest?
20 A Yes.
21 Q So whatever shade it was, which you’re hesitant to put a
22 shade on it, it was – the darkest part were her feet?
23 A Correct.
24 MS. EK: Object to the form of the question.
1 Q (BY MS. KOEHLER) Am I right? The darkest part were her
3 A The darker part of her body were her feet.
4 Q All right. So back to my question. When you noticed
5 that her feet were – from her knees to her feet were
6 mottled and you went so far as to use a doppler to
7 confirm that there were no pulses, did you find that to
8 be a significant finding?
9 A Yes.
10 Q What does significant mean to you in nursing, you know,
11 in your – in your role as a nurse?
12 MS. EK: Objection. Vague.
13 A A significant finding is – to me is something that needs
14 to be reported or assessed more frequently.
15 Q (BY MS. KOEHLER) Did you report the finding of the no
16 pulses from the knees down and the mottling to a
17 physician as soon as you made note of that?
18 A Yes.
19 Q Who did you report it to?
20 A Dr. B and NP.
21 Q And NP was the P.A. on duty?
22 A She was at bedside.
23 Q She was at bedside? Now, Dr. B was not at the
24 hospital. Am I right?
25 A Correct.
1 Q So how did you contact him?
2 A He had contacted me once and I had contacted him. I
3 attempted to contact him twice through my shift. I had
4 reached and discussed with him once. I was unsuccessful
5 on my third attempt to contact him.
6 Q So what time periods did you attempt to contact him?
7 A He called me to get an update at 2300. I called him
8 shortly after that. I’d have to look at my charting
9 here. Shortly after that, around 2330, I contacted him.
10 Then at the end of my shift – I’d have to look at my
11 charting again – about 6:30, 6:45, I called him and was
12 not – I did not get a response.
13 Q Okay. When he contacted you at 11 o’clock p.m. and you
14 contacted him at 11:30 p.m., did you actually speak to
16 A Yes.
17 Q Each time?
18 A Yes.
19 Q Did you tell him that there were no pulses from the knees
20 down and that there was mottling with the darkest
21 mottling being at the feet?
22 A I had told him my findings and my assessment of no pulses
23 in her feet, no pedal pulses, no tibial pulses and the
25 Q Is there any doubt in your mind that you told him that
2 A No. I told him that information.
3 Q Is there . . . When you looked at your charting, did you
4 see notation – notes that you had those conversations
5 with Dr. B?
6 A There was a note that I – Dr. Bcalled for update.
7 Q And that’s when you would have transmitted that
9 A Correct.
10 Q What other information did you transmit to him beyond the
11 no pulses and the mottling?
12 A General – my general assessment, general like vital
13 signs, labs that had come back, discussed medications
14 patient was receiving.
15 Q Okay. When he learned of the no pulses and the mottling,
16 did he give you any special instructions with respect to
17 that item?
18 A No.
Is this a classic case of he said, she said. Or there more to this story.
To be continued…
Photo: Another timeline PPT slide by Duane Hoffmann
Am at a hospital. Sitting on one side of a long table in a cafeteria. With me is my partner Paul Whelan and paralegal Cheryl Baldwin. Paul has been handling medical negligence cases since I was in grade school. He is my Yoda. Cheryl screened this case and knows everything that I need to know. Between the two of them, I’m covered.
To my left at the end of the table in front of a video backdrop is the witness. He is not only the treating doctor. He is the Medical Director of the Hospitalist Program and Chairman of Internal Medicine at the hospital. Across the table are the defense lawyers, a risk manager and representative from the hospital.
My job is to ask questions that will pin the doctor down, expose his vulnerabilities, and figure out why he did what he did when treating our client.
I use words that I have never used before. Like rhabdomyolisis which I pronounce correctly only because listened to it on http://www.howjsay.com/. I mispronounce words like pedal pulse and ischemia. The defense lawyers smirk a little.
This doesn’t bother me.
One of the joys of being a trial lawyer who handles every imaginable kind of case – is the never ending challenge of learning something new. Am not worried about making a fool of myself. My preparation for this day has involved more hours of studying the records and medicine than the deposition will actually take. Plus am an intense listener.
This is my practice tip. When examining any witness: your next question should flow from what their answer to the last question was.
Lawyers who stick to outlines are handicapped because they don’t place a premium on the art of listening. If you don’t listen, then you cannot engage in repartee. If you cannot engage in repartee, then you have less of a chance of being able to effectively examine a witness.
In this deposition excerpt, the doctor is on a mission to prove: 1) that he acted perfectly; and 2) that any fault belonged with his patient our client. This particular blame the victim defense theme goes like this: It was her fault for not moving to a more urban environment with better medical facilities.
Let’s see how this plays out.
4 Q (BY MS. KOEHLER) What was the plan of treatment that you
5 suggested to her?
6 A She ran out of some of her medications. We gave her the
7 medicine that she needed and we advised her to establish
8 care with a primary care physician and cardiologist.
9 Q Did you advise her that she should consider living in an
10 area with access to the type of specialists and
11 treatments she was likely to need which are not —
12 A Correct.
13 Q — available in Grays Harbor County?
14 A Correct.
15 Q Are you saying that Grays Harbor County does not have
16 sufficient medical care to take care of all people?
17 A We do not have many specialists. Correct.
18 Q Do you believe that the hospital was not prepared to take
19 care of a patient like HS?
20 MS. EK: Object to the form of the question.
21 MS. GRIFFITH: Join.
22 A Can you repeat the question.
23 (Pending question read by reporter.)
24 A The hospital was prepared.
25 Q (BY MS. KOEHLER) How was the hospital prepared to take
1 care of Ms. S if the community of medical providers
2 in Grays Harbor was not able to take care of Ms. S?
3 A I think if we do not take care of these patients, with
4 the distance away from, you know, specialty – you know,
5 specialties, you know, many of them will not make it. So
6 we’re always the bridge between – stabilizing them until
7 they get, you know, to the bigger hospitals.
8 Q So is it your advice that people with serious medical
9 conditions requiring specialty care not live in
10 Grays Harbor?
11 MS. EK: Objection. Overly broad.
12 A It’s a very broad question. In Mrs. S’s case, I
13 specifically advised her to be closer to the specialists
14 that she needs due to her age and, you know, her medical
16 Q (BY MS. KOEHLER) Is that something that you do often is
17 tell people that – with serious medical conditions that
18 they should not live in Grays Harbor?
19 A Not really. Sometimes out of concern for the patient’s
20 safety, if I feel that they need way more services, then
21 I advise them for their safety, which has been very, very
23 Q Can you think of one other case other than HS before HS that you advised someone
25 that they should not live in Grays Harbor?
1 A Yes.
2 Q How many?
3 A Just a few.
4 Q And what type of conditions?
5 A You know, one that I remember was a young patient in his
6 twenties with a heart transplant that I didn’t think, you
7 know, he would get the medical care he needs here.
8 Q Any – any other example that you have other than a heart
9 transplant and Ms. S?
10 A I can’t think of any.
The doctor has portrayed himself as an extremely caring but worried treater. HS’s condition is so severe that he has advised her to move out of town to access better care. Let’s see what happens when HS returns to the hospital one and a half months later. Just how well does the doctor’s concern ring true.
4 Q Okay. Once Ms. S was admitted to the hospital, how
5 long was it before she was seen by a medical doctor, not
6 a physician’s assistant?
7 A Okay. We are supposed to see patients within 24 hours of
8 admission. I first saw her at 7:00 a.m. So within less
9 than the duration.
10 Q You first saw her at 7:00 a.m. the next day?
11 A Correct.
12 Q What time was she admitted by Physicians’ Assistant
14 A I believe she was admitted around noon the first day.
15 Q And it was an average – average to busy day for you?
16 A Correct.
17 Q And you had seen her before?
18 A Correct.
19 Q But you didn’t have time to see her first in the seven
20 hours that you were still at the hospital?
21 MS. EK: Object to the form of the question.
22 A I did not need to see her. She was admitted by
23 MC (the physician’s assistant).
24 Q (BY MS. KOEHLER) That wasn’t my question. So on October
25 the 27th, even though you had seen her a month-and-a-half
1 before and you were at the hospital for seven hours, you
2 did not find it necessary for you personally to go visit
4 A I did see her.
5 Q On the 27th?
6 A Is 27th the first day?
7 Q Correct.
8 A I saw her the 28th.
9 Q Okay. But I’m talking about the 27th. Before you left
10 home that night at 7 o’clock in the evening. You’d
11 already seen her once a month-and-a-half before.
12 A Correct.
13 Q You knew she was admitted.
14 A Correct.
15 Q You were at the hospital for seven hours.
16 A Correct.
17 Q It wasn’t a terribly busy day. It was either average to
18 busy average.
19 A Correct.
20 Q But you didn’t have time to go see her?
21 MS. EK: Objection. Misstates.
22 A She was admitted by MC.
23 Q (BY MS. KOEHLER) Did you have time to see her if you
24 wanted to see her on the 27th?
25 A I did not get that question. Sorry.
1 Q On the 27th, if you wanted to pop in and see her, did you
2 have time to do that?
3 A I cannot remember the day.
The doctor has created a major inconsistency. On the one hand he was so concerned about HS that he advised her to move somewhere else to get better specialty care. On the other hand, when she came back to the hospital a month and a half later, he was fine with her being examined and admitted by a non-doctor physician’s assistant.
To be continued.
Photo: First timeline PPT slide – by Duane Hoffman.