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1 quite small. Usually as you age the ventricles

2 show some enlargement due to some loss of brain

3 tissue in the aging process.

4 And when you have an episode of hypoxia

5 then you lose brain tissue and that's what we

6 have seen with the enlarged ventricle showing up

7 on the CT scans.

8 Q. Do you -- would the transaxial images

9 on the SPECT scan be consistent with an anoxic

10 encephalopathy?

11 A. Yes, the pattern that we see is

12 compatible with that because you have a decreased

13 amount of total localization--

14 Q. Is it also --

15 A. -- in the cerebral hemispheres.

16 Q. Excuse me. Is it also compatible with

17 a diagnosis of hypoxic encephalopathy?

18 A. I'm sorry, I didn't catch that

19 question.

20 Q. Is the image that you see in this group

21 of transaxial images, is that pattern of

22 localization consistent with hypoxic

23 encephalopathy?

24 A. There's really not much difference

25 between anoxic and hypoxic. Your degree of




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1 differentiation if it's total anoxic then the

2 cells die and you see big holes in the brain. If

3 it's hypoxic, then usually you have produced

4 little areas of inhomogeneity and an overall

5 decrease in the localization of the tracer in the

6 brain area.

7 Q. Based on these images, the transaxial?

8 A. Based on what we're seeing here, I

9 would be more inclined to say that this was an

10 episode of hypoxic and not anoxic encephalopathy.

11 Q. Okay. And why would you say that?

12 A. Because you don't have total areas of

13 non-localization that you would in a brain that

14 was completely anoxic because oxygen is the fuel

15 of the brain and the brain cells can only survive

16 a short period of time without oxygen, without

17 dying.

18 And in the pattern since we do see

19 localization in the -- all of the areas of the

20 brain, although it's not normal, this is the

21 pattern that we see with the hypoxic and not

22 anoxic encephalopathy.

23 Q. Is there anything else that is

24 noteworthy on this group of images?

25 A. On this group of images we actually




83



1 have more slices through the brain than what we

2 do on our CT, but there is a degree of

3 correlation that you can look at and correlate

4 the images on the SPECT to some of the brain CT

5 images.

6 Q. Incidentally, what is a hyperbaric

7 trial or hyperbaric challenge?

8 A. This is obtaining a SPECT brain scan as

9 a baseline and then giving hyperbaric oxygen to

10 the patient, either a single treatment or

11 sometimes several treatments, and then repeating

12 the SPECT brain scan to see what change has

13 occurred in the pattern SPECT brain scan.

14 Q. Will hyperbaric oxygen therapy show up

15 quickly in the changes in the SPECT scan on a

16 trial?

17 A. Very frequently, yes.

18 Q. How frequently?

19 A. I would say the correlation is better

20 than 80 percent with eventual improvement that if

21 there's a positive change on the follow-up brain

22 scan after hyperbaric oxygen therapy.

23 Q. So it's possible to predict efficacy

24 based on a change between baseline SPECT number

25 one then post-trial SPECT scan number two?




84



1 A. That's correct.

2 Q. This was not permitted in her case?

3 A. This has not been permitted in her

4 case.

5 Q. In this set of images is there anything

6 that would help you predict whether she would

7 respond to hyperbaric therapy?

8 A. The two factors, one is the factor that

9 we do see localization even though it's not

10 normal in all of the areas of the brain that

11 correlate with the brain tissue that we see on

12 the CT scans. So she does not have the

13 discrepancy between what we see on the SPECT scan

14 and what we see on the brain scan -- I mean, on

15 the CT scans.

16 So that what we're seeing indicates

17 that there is viable tissue that's in the areas

18 as shown on the CT scan as determined by the

19 pattern that we're seeing on the SPECT brain

20 scan.

21 Q. So she has viable tissue in all parts

22 of her brain?

23 A. In all of the parts that are shown here

24 that if there was totally non-functioning tissue,

25 then we would not expect to see localization.




85



1 That correlates to what we see anatomically as to

2 where brain tissue is.

3 Q. Is there anything else noteworthy on

4 the transaxial images?

5 A. The transaxial, as I said, shows the

6 greatest degree of localization in the cerebella

7 area. There's also localization in the basal

8 gangliar area which we did not specifically talk

9 about, but that is the area of the brain where

10 you have control of respiration and heart rate of

11 which she has control of.

12 Q. Is that where the autonomic nervous

13 system is headquartered?

14 A. To the greatest degree, yes. And this

15 SPECT brain scan shows that we do have good

16 localization in those areas and that there's

17 also, as I indicated, good localization what we

18 see of the cerebella area and that the frontal

19 areas have more localization, actually, than does

20 the occipital area which makes it interesting

21 that even though the functional capability of the

22 occipital area is where your vision is is lower

23 based on the SPECT brain scan from my clinical

24 observations of Terri she does have the ability

25 to see and to track light and objects.




86



1 Q. Now, where is the least amount of

2 localization?

3 A. It's actually in the occipital areas.

4 Q. Okay.

5 A. Which is the posterior area of the

6 brain that you see on I would say images--

7 Q. Is that the back of the head?

8 A. The back of the head on the SPECT

9 images on I would say 18 to about -- I lost it.

10 Q. You lost it?

11 A. Can you go back to that?

12 Q. Okay.

13 A. Show the whole thing here. The

14 occipital area would be right back in that area

15 from about 18 up through about 26 on the studies.

16 Q. Can you rank order for me in terms of

17 least amount of localization to greatest amount

18 of localization on the brain structures?

19 A. As I mentioned, that would be the

20 occipital area has lower level of localization,

21 the occipital lobes. And then the cerebral

22 cortex and the motor areas. Then the frontal

23 areas have the most degree of localization in the

24 cerebral hemispheres. And then the cerebellum

25 and the basal gangliar area has the highest




87



1 degree of localization.

2 Q. Are you finished?

3 A. Also you can see some localization in

4 the motor areas on the images.

5 Q. I'm sorry, the what areas?

6 A. In the motor --

7 Q. Motor?

8 A. -- area of the cerebellar. I mean, of

9 the cerebral hemispheres it's more on the right

10 than the left images, 34, 35 and 36 which is at

11 the top of the motor strip area.

12 Q. What would you conclude from reading

13 that image?

14 A. That those areas have a more normal

15 type of function. Not normal, but more normal

16 because they're showing the varied degrees of

17 localization.

18 Q. Her right more than her left side?

19 A. Her right more than her left, right.

20 Q. Are we finish with the transaxial

21 images?

22 A. Yes. We could go to one of the other

23 images there.

24 Q. Now again the localization which

25 roughly relates to blood flow would be the darker




88



1 areas, correct?

2 A. Well, blood flow is only a part of it

3 because you're scanning significantly after you

4 give the intravenous injection. So you have to

5 have blood flow to get the tracer to the area

6 that you're looking at.

7 But the more important factor is

8 actually the degree of localization, which is the

9 function of the brain tissue. That period of time

10 that you're scanning you have a little low level

11 of blood flow to the area and, but you're not

12 seeing localization in the ventricular system

13 which you see in the extremely abnormal SPECT

14 brain scans.

15 Q. So she is not -- even though these

16 ventricles are enlarged, there is no localization

17 in them of what did you call them, radio --

18 A. The radiopharmaceutical. In the

19 severely damaged brain where the individual is in

20 a true vegetative coma your degree of

21 localization is much, much less and you actually

22 usually see some localization in the ventricular

23 system because of the overall decrease that

24 you're seeing.

25 When you're looking at this scan you're




89



1 looking at a range of gray scale which is about

2 one to ten. So as long as you've got some pretty

3 normal functioning tissue or normal localization

4 tissues, then you don't see the ventricular

5 system.

6 But when you really severely knock out

7 the function of the brain tissue, then you will

8 see the ventricular system as part of your image.

9 Localization is black rather than white because

10 there is a small amount of radioactivity that

11 gets into the fluids of the brain, but under

12 normal circumstance you don't see this because

13 the range of gray scale which you're looking at

14 prevents you from seeing it.

15 Q. Now, Dr. Maxfield, is the SPECT scan as

16 a whole consistent with your clinical

17 observations?

18 A. Yes, it is.

19 Q. Would you expect -- if you had not been

20 able to clinically observe her and examine her,

21 would you have expected a person with this SPECT

22 scan to have some awareness?

23 A. Yes, I would, because of the degree of

24 localization that we're seeing, particularly in

25 the frontal areas where your thought processes




90



1 are located.

2 Q. What else do these images show us?

3 A. This is the coronal areas where we

4 started the slices at the front of the brain and

5 then move all the way to the posterior portion of

6 the brain area.

7 And the top of the brain you can see

8 that there is a pretty good localization on the

9 images in the first row which would be through

10 the frontal portion, and severe localization in

11 the images in the second row.

12 If you look particularly on Images 10,

13 11 and 12 you'll see that there is more

14 localization on the right side than there is on

15 the left side. That is correlated with what we

16 saw on the transaxial images.

17 So that this is, again, confirmation

18 that there's more localization on the motor area

19 in the right side than there is on the left side.

20 Then we're moving into where you see the

21 ventricles as the white areas.

22 Then you move to the back of the brain

23 and back there you can see very minimal degree of

24 localization in the occipital areas down at the

25 base at the bottom of the brain image. And you




91



1 can see the cerebellar regions showing up,

2 cerebella lobes showing up in the posterior part

3 of the -- the mid posterior part of the brain

4 area.

5 So this is just giving us a double

6 check on what we have read from the transaxial

7 images.

8 Q. Okay.

9 A. Then we could go to the sagittal

10 images, which is the other plane, going from one

11 side to the other side of the brain. So these

12 images at the top we're starting on one side of

13 the brain and then going over to the other side.

14 MS. ANDERSON: Now, this would be

15 Exhibit 11C, Judge. This is the third film,

16 the third part. I'm showing the sagittal

17 images in this.

18 THE WITNESS: Correct.

19 BY MS. ANDERSON:

20 Q. What does that sagittal mean?

21 A. That means that--

22 MR. FELOS: Excuse me, Your Honor, just

23 to clarify this, I thought there were only

24 two films?

25 MS. ANDERSON: There are three total.




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1 MR. FELOS: Are there two or three

2 films on the SPECT scan?

3 MS. ANDERSON: Three. We just finished

4 looking at the second one and now we're on

5 the third one.

6 THE WITNESS: Yes. There are three

7 images. It's standard to take all three

8 images, the transverse, the transaxial and

9 the frontal and then the sagittal.

10 Then in some aspect scan units you have

11 the ability to combine all of these into

12 what we call a 3D presentation which gives

13 you actually a visualization of the cortex,

14 the outside of the brain area.

15 BY MS. ANDERSON:

16 Q. So you would--

17 A. That was not done on this study.

18 Q. You could combine all of these images

19 to create a 3D effect?

20 A. To create a 3D effect so you can

21 actually see the outside of the brain area

22 showing that technology.

23 Q. And what do the sagittal images show

24 you on Exhibit 11C?

25 A. The sagittal images are taken starting




93



1 on the left side and going to the right side.

2 These show essentially the same thing that we

3 talked about before, that towards the front of

4 the brain in the second row you can see pretty

5 good localization on that row.

6 Then also on the next row and the third

7 row down in the frontal area of the brain you

8 could see the localization in the left motor area

9 to a lesser -- to a small degree and see better

10 localization on the motor area on the right side

11 as you come across the brain images.

12 And, again, you could see that there's

13 a better localization in the frontal lobes at the

14 front of the brain than there is in the occipital

15 lobe back where the vision is located at the back

16 of the brain area.

17 Then you again can see the enlarged

18 ventricles. And you see the localization in the

19 cerebellum at the base of the brain and then the

20 brain stem which is in that area.

21 Q. Is her brain stem intact, according to

22 these images?

23 A. To the greatest degree from what we're

24 seeing here. The fact that she has not had

25 problems with respiratory control and doesn't




94



1 have to be on a ventilator and that her cardiac

2 rate has been maintained and that she also has

3 the ability to swallow. So the reflexes of

4 swallowing are intact.

5 Q. So it's respiration, heart rate and

6 swallowing?

7 A. Swallowing.

8 Q. Also?

9 A. Yes.

10 Q. Are there other things that are

11 controlled down at the brain stem -- is that the

12 basal ganglia.

13 A. The basal ganglia are to the side.

14 They're sort of at the interior part of the

15 cerebella hemispheres. Then you've got -- the

16 brain stem actually goes down into the medullary

17 portion of the brain.

18 You have tracks from all of your other

19 functions, your extremities and things that go

20 through this area. And the resolution of this

21 SPECT brain scan is not such that we can look at

22 that at that level.

23 Q. Now, Dr. Maxfield, have you seen

24 improvement in SPECT scans or changes in SPECT

25 scans and improvement in function with hyperbaric




95



1 therapy where you started out at this level, the

2 same as Terri?

3 A. Yes, I have. In fact, I've seen

4 improvement in more hypoxic episodes where the

5 brain stem is much worse than what this is. And

6 there has been clinical improvement and it has

7 correlated with improvement on the SPECT scan.

8 Q. Now, are you also familiar with the

9 vasodilation therapy that Dr. Hammesfahr does?

10 A. I'm not familiar with it. I have no

11 clinical experience with it.

12 Q. So does it proceed from the same

13 fundamental principle as hyperbaric oxygen

14 therapy?

15 MR. FELOS: I object, Your Honor. The

16 witness is not competent to answer. He said

17 he has no experience with that type of

18 therapy.

19 MS. ANDERSON: I'm not asking him about

20 his experience. I'm asking him about his

21 intellectual understanding of the therapy

22 and the fundamental principles.

23 THE COURT: You need a predicate

24 question for that, Counsel.

25 MS. ANDERSON: A what?




96



1 THE COURT: You'll need a predicate

2 question for that.

3 BY MS. ANDERSON:

4 Q. Can you -- is there anything similar in

5 the therapy of Dr. Hammesfahr, as you understand

6 it, and hyperbaric oxygen therapy, as you

7 understand that?

8 MR. FELOS: I renew this objection,

9 Your Honor. There is insufficient predicate.

10 He hasn't testified that he has any

11 knowledge of the Hammesfahr therapy and so

12 how could he answer the question--

13 THE COURT: I think--

14 MR. FELOS: -- unless she establishes

15 it?

16 THE COURT: I think the phrase as you

17 understand it clears that up, so with that

18 the last question is okay.

19 BY MS. ANDERSON:

20 Q. You may answer the question.

21 A. The basic factor is that the brain is

22 oxygen driven and oxygen is the fuel of the

23 brain. And what you're doing with hyperbaric

24 oxygen is pushing oxygen into the fluids of the

25 body and also with the increased pressure you




97



1 make oxygen defuse to a greater distance outside

2 of the capillaries where the oxygen is

3 distributed.

4 So with hyperbaric oxygen what you're

5 doing is pushing oxygen out into the tissues to a

6 very high degree. As I indicated, your normal

7 oxygen level is around 30 millimeters of mercury.

8 With hyperbaric therapy, we can get

9 oxygen levels as much as 1200 millimeters of

10 mercury. And, as I understand what

11 Dr. Hammesfahr is doing, is that he is using

12 vasodilators to increase the blood flow to the

13 brain area.

14 And by doing this, you are, therefore,

15 increasing the oxygenation of the brain. So

16 you're providing more fuel to the brain to permit

17 it to function.

18 In the brain area you don't have the

19 ability to do what we do in wound healing and

20 that is to take a tissue sample and see what the

21 cells are doing because of the complications and

22 difficulty in doing a biopsy of the brain area.

23 But in the wound healing, we have been

24 able to take a sample of tissue and see that the

25 fibroblasts, which are the cells that produce




98



1 wound healing, are there and they are viable, but

2 they're not doing their function when the oxygen

3 level is low.

4 You can increase the oxygen level with

5 hyperbaric oxygen therapy and you go in and

6 revise this wound and see that these cells are

7 now functioning and producing collagen and doing

8 the things that we need to heal the wound. And

9 the wound is what we can see clinically.

10 The SPECT scan gives us essentially

11 this ability to look into the brain area and see

12 what's going on there. And, as I indicated, it

13 has been quite accurate in predicting what the

14 response will be to a full series of hyperbaric

15 oxygen treatments by using only one or two

16 treatments and then repeating the SPECT scan.

17 Q. Is hyperbaric medicine therapy used in

18 other countries?

19 A. It's actually got more utilization in a

20 number of other countries than it does here. We

21 like to think that we are the leaders in

22 medicine, but Medicare in its infinite wisdom

23 authorizes about eleven uses for hyperbaric

24 medicine.

25 Q. Eleven different uses for it?




99



1 A. Eleven different uses for hyperbaric

2 medicine. In Russia there's, I believe, 73.

3 Q. So that's the difference between 11 and

4 73 different approved uses?

5 A. That's correct. And there are a number

6 of uses for hyperbaric that do work and have been

7 used in this country and that's treating stroke

8 and treating cerebral palsy and from my own

9 personal experience from treating MS patients and

10 many other conditions, including emphysema.

11 So it is something that does work, but

12 unfortunately in this country it's been one of

13 the best kept medical secrets.

14 Q. Are you generally familiar with the

15 literature about hyperbaric medicine?

16 A. In general. There are more than 23,000

17 articles I think on hyperbaric medicine. I

18 certainly haven't read all of them, but I try to

19 stay up with the current indications and current

20 utilizations of hyperbaric medicine.

21 And that comes back to the fact that I

22 just returned from the International Congress on

23 Hyperbaric Medicine, two of the very interesting

24 papers that were presented there came out of

25 Mexico where they're using hyperbaric and stem




100



1 cells to get regeneration of both brain and

2 spinal cord.

3 And they were reporting on individuals

4 that had total paralysis of their legs for up to

5 three years that were now walking. And this type

6 of documentation is also in the experimental

7 animal data.

8 A number of years ago Dr. Fife from

9 Texas A&M showed that you could cut the spinal

10 cord on a rat, which produces the paralysis. And

11 then by giving hyperbaric oxygen a significant

12 number of these rats have regained the use of

13 their limbs.

14 And when they did the pathology on the

15 areas that have been cut, the pathologist

16 initially said you sent the wrong animals, that

17 these have grown across -- they've got nerves

18 growing across where you're supposed to have cut

19 it. And this is part of the beginning of the

20 documentation of what we know about the central

21 nervous system. No longer true.

22 Q. Have a number of American institutions

23 or should I say are a number of American

24 institutions presently doing hyperbaric research?

25 A. Yes, they're a large number of American




101



1 institutions that are looking into hyperbaric and

2 also into stem cell research.

3 Q. Do you know if Harvard is?

4 A. There have been papers that have come

5 out of Harvard, yes.

6 Q. Do you know if the Cleveland Clinic is

7 doing any hyperbaric research?

8 A. There are some papers that have come

9 out of the Cleveland Clinic, yes.

10 Q. Do you know if the Hennepin County

11 Medical Center is doing any research in

12 Minnesota?

13 A. I have seen abstracts from that

14 facility, yes.

15 Q. Now, physicians typically rely on

16 journals, medical journals, to keep current in

17 their field; do they not?

18 A. That is one way of doing it. The

19 problem is what you read in the journal is what

20 was done and presented at the meeting

21 approximately two years previously.

22 So if you rely only on journals, you're

23 essentially two years behind in learning.

24 Q. So, from your standpoint, the journals

25 represent historical documents on research




102



1 efforts?

2 A. From the time a paper is presented at a

3 meeting until it is published, the average is

4 minimally a year and usually about two years by

5 the time it goes through reviews and things like

6 that.

7 Q. Despite the historical -- the lag time

8 that you're talking about, are there nevertheless

9 journals that would be considered an

10 authoritative source for reporting research?

11 A. I don't like to use the term

12 authoritative. Journals in the medical

13 publications, in my opinion, are informative and

14 I don't look upon something as authoritative

15 because it is continually changing.

16 Q. But it's certainly an accurate record

17 of what the current state of the knowledge was

18 two years ago?

19 A. To the greatest degree, although,

20 recently in the Journals of the Medical

21 Association there was a very good article on the

22 prejudice of the review process for medical

23 articles. So that many articles that should have

24 been published have not been published.

25 This I happen to have a little personal




103



1 knowledge of because the Duke University has

2 recently come out with data showing that a

3 significant number of people that have coronary

4 artery bypass surgery have significant cognitive

5 defect after the procedure.

6 And the original research on that was

7 done approximately 10 years ago by a foundation

8 that I happened to know very well and I saw that

9 paper that was never published.

10 Q. The paper was refused publication?

11 A. It was refused publication.

12 Q. Are you talking about the -- I think

13 it's the June '90 or June 2002 issue of the New

14 England Journal of Medicine and JAMA, Journal of

15 the American Medical Association that looked at

16 these issues that you're talking about?

17 A. I know that there was an issue in the

18 New England Journal, but I don't remember the

19 exact line. The one that I read was in the

20 Journal of the American Medical Association.

21 Q. Do you read the New England Journal?

22 A. Periodically. I do not subscribe to

23 it. So sometimes if I see a reference to it, an

24 article, I would read it. I have read it in the

25 past. I do read the Journal of American Medical




104



1 Association, in particular their section on their

2 abstracts from other journals.

3 Q. Is that a service that's provided to

4 physicians?

5 A. It's part of the Journal of the

6 American Medical Association. They have a very

7 good abstracting of what's presented in many

8 other medical journals.

9 Q. Generally speaking, is a published

10 paper -- have the results that are published

11 already been presented in national congresses and

12 symposia and conferences and so forth?

13 A. To the greatest degree. On occasion

14 you have a paper that is only presented to the

15 journal for publication, but the most things have

16 been presented in meetings and symposia and

17 particularly scientific meetings of the different

18 organizations. And they usually show up in the

19 journals, as I said, a year, two years later.

20 Q. Is there a hyperbaric medicine

21 textbook?

22 A. There are several that have been

23 published. Dr. Neubauer has an article, a

24 publication of hyperbaric medicine. There's a

25 recent publication of the symposia that was held




105



1 on a brain-injured child.

2 There's a textbook by Dr. Hunt and

3 there's also one by Dr. Kanwal and then there's

4 very excellent book that's K.K. James, a book on

5 hyperbaric medicine.

6 Q. Dr. Maxfield, have you formed any

7 opinion, within a reasonable degree of medical

8 certainty, whether Terri Schiavo can be helped to

9 the point where she can recover cognitive --

10 better cognitive function?

11 A. Yes, I have.

12 Q. What is that opinion, sir?

13 A. In my opinion, there's a significant

14 probability that she would improve with

15 hyperbaric oxygen therapy based on what I have

16 seen in the CT of the brain, the SPECT scan, and

17 my observation and examination of the patient.

18 Q. Are you familiar with Dr. Neubauer's

19 research and publications?

20 A. To the greatest degree, yes. I don't

21 know that I've read every one of them, but --

22 Q. Have you ever read --

23 A. -- I'm --

24 Q. Have you read one of his papers

25 entitled Hyperbaric Oxygen for Treatment of




106



1 Closed-Head Injuries?

2 A. You would have to tell me which one it

3 is because he's published different ones.

4 Q. It's published in the Southern Medical

5 Journal in 1994 coauthored Gottlieb and Pevsner?

6 A. I think I've looked at that. I don't

7 remember specifically reading that one.

8 Q. Now, are you familiar with a study that

9 came out of Bethesda Naval Research Institute,

10 Medical Research Institute that was published in

11 Stroke on a study that was done with rabbits and

12 hyperbaric oxygen global cerebral ischemia?

13 A. Who was the author on that?

14 Q. Mink and Dutka?

15 A. I know Dr. Dutka. I don't remember that

16 article specifically.

17 Q. Okay. What's the -- why would you do a

18 research on rats? How would that translate to

19 efficacy for humans?

20 A. Much of what we do in medicine is

21 prototyped in the experimental animal because you

22 can do things to them to prove that your thesis

23 is correct. That's why you use the experimental

24 animals to develop that technology.

25 Then once you proved that it works on




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1 the animal, then you transport this into the

2 human. This is what has been done in this

3 country with stem cell research, putting stem

4 cells, implanting them into the brain which has

5 been done at the University of Pittsburg.

6 Q. Now, have you looked at the recent

7 literature on stem cell research, the 2002

8 research just beginning to come out about stem

9 cell research on the brain?

10 A. I have not gone to the Internet and

11 looked up all of the articles on it, but I am

12 familiar with it. And, as I indicated, positive

13 clinical reports that were in the presentations

14 at the International Congress of Hyperbaric

15 Medicine last week.

16 Q. What does that research promise in

17 terms of brain repair?

18 A. It promises very significant

19 improvement in brain repair because if you can

20 get the cells to adapt to the area and then to

21 assume the function, then you can get essentially

22 total -- almost total repair of the defect with

23 the stem cell technique.

24 Q. Would that revolutionize the treatment

25 of brain-injured patients?




108



1 A. Yes, it would very definitely.

2 Q. Can you estimate how far in the future

3 that development is on a practical basis?

4 A. I know that it is --

5 MR. FELOS: Your Honor, I would object.

6 That calls for speculation on the part of

7 the witness.

8 MS. ANDERSON: I asked him if he could

9 estimate.

10 THE COURT: That is speculation. I'll

11 allow it.

12 BY MS. ANDERSON:

13 Q. Go ahead and answer that question.

14 A. I know that there are clinical trials

15 underway. And from the preliminary data that I

16 have seen on the studies it's producing very

17 spectacular results.

18 Q. Generally speaking, from the time

19 medical innovation is confirmed in a research

20 study how much time elapses from that time to the

21 time it's put into practice?

22 A. The average lag time is in the range of

23 six to eight years.

24 Q. Does that assume FDA approvals?

25 A. That's in this country getting FDA




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1 approval -- it does effect a significant amount

2 of time if you get FDA approval in this country.

3 And then also there is a question about that, the

4 political side of stopping stem cell research.

5 MS. ANDERSON: May I have one moment,

6 Your Honor?

7 THE COURT: Yes, ma'am.

8 BY MS. ANDERSON:

9 Q. Dr. Maxfield, do you have an opinion,

10 within a reasonable degree of medical certainty,

11 whether Terri Schiavo is in a persistent

12 vegetative state?

13 A. Yes, I do.

14 Q. What is that opinion?

15 A. That she is not in a persistent

16 vegetative state.

17 Q. Upon what do you base that opinion?

18 A. The fact that she has the ability to

19 track the balloon when you observed her. That

20 she has visual tracking of lights. That she

21 recognizes her mother. That she can breathe.

22 She can swallow by herself.

23 Q. Dr. Maxfield, do you have an opinion,

24 within a reasonable degree of medical certainty,

25 whether Terri Schiavo's -- the fact that she is




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1 12, nearly 13 years out from her injury,

2 precludes her recovery were she to receive

3 therapy?

4 A. In my opinion, it does not Particularly

5 with the data that's coming out on the stem cell

6 research and what the clinical potential is for

7 this technology.

8 Q. Had Ms. Schiavo received physical

9 therapy during the last 10 years, would you have

10 expected to see different brain studies?

11 A. I don't know that the physical therapy

12 would have changed the brain studies though there

13 are people who feel there is some degree of

14 feedback that works that way. And I think you

15 can look at the data that's recently come out

16 about Steve Reeves and his ability to start to

17 wiggle things a little bit that relates to the

18 recovery process.

19 THE COURT: Steve Reeves is dead,

20 Doctor. You must mean Christopher Reeves.

21 THE WITNESS: I'm sorry, Christopher

22 Reeves. I'm not much of a movie star

23 follower. Christopher Reeves, I'm sorry.

24 MS. ANDERSON: Judge, I think I want to

25 show Dr. Maxfield's video examination of




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1 Terri.

2 THE COURT: How long is that?

3 MS. ANDERSON: It's -- how long is the

4 video? It looks like in total these clips

5 are probably 11 minutes, 11 or 12 minutes.

6 THE COURT: And of course you want to

7 question him before, during and after,

8 right?

9 MS. ANDERSON: I probably do have some

10 questions.

11 THE COURT: Okay. Let's break for

12 lunch. I thought we could get it all done

13 before lunch, but it's not happening. Let's

14 come back at one-thirty.

15 MS. ANDERSON: That will be fine.

16 (Thereupon, Court was in recess for lunch.)

17 FILE NUMBER 2 OF MAXFIELD *****

18 THE COURT: Doctor, you're still under

19 oath. The court reporter asked the Court

20 during the break whether or not she should

21 take down what's on the videotape and I told

22 her no. The tape itself will be evidence.

23 Anybody have a problem with that?

24 MS. ANDERSON: I have no problem.

25 MR. FELOS: No, Your Honor.




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1 THE COURT: Okay.

2 BY MS. ANDERSON:

3 Q. Dr. Maxfield, have you had the

4 opportunity to look at any of the videotapes of

5 the examinations of Terri by yourself,

6 Dr. Hammesfahr and Dr. Cranford?

7 A. I have looked at some of them. I've

8 not looked at all of them.

9 MS. ANDERSON: Will you show the MO1

10 clip now? This runs 2 minutes, 33 seconds,

11 beginning at 2:10. It's elapsed time of two

12 minutes into the tape. Pause it for a

13 moment, please.

14 BY MS. ANDERSON:

15 Q. Dr. Maxfield, what is her father doing

16 there?

17 A. He has brought in a mobile telephone

18 and his wife was on the telephone and is talking

19 to Terri.

20 Q. This lighting is not particularly good

21 on this video, but did Terri have any reaction

22 when she heard her mother's voice over the

23 telephone?

24 A. In my opinion, yes.

25 Q. What was it?




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1 A. She started trying to make little

2 sounds and looked a little bit more towards the

3 side where the voice is coming from.

4 Q. Okay. Was her mother not present

5 during your examination?

6 A. Not during this examination.

7 MS. ANDERSON: Now, this goes to MO2.

8 This is again from the Maxfield exam. Pause

9 just a moment.

10 BY MS. ANDERSON:

11 Q. Did see any reaction from Terri when

12 her father showed her the Mickey Mouse balloon?

13 A. Yes, I did. She is tracking it by

14 moving her head and she is following it with her

15 eyes.

16 MS. ANDERSON: Resume, please. Pause

17 for a moment, please.

18 BY MS. ANDERSON:

19 Q. Throughout this period of the

20 examination, did she continue to focus on the

21 balloon?

22 A. To the greatest degree. She made one

23 movement backed away, but then came back to where

24 the balloon was.

25 Q. In your judgment and opinion, was she




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1 aware of that balloon?

2 A. In my opinion, yes.

3 MS. ANDERSON: Show the third Maxfield

4 clip, please. MO3. Pause for a moment,

5 please.

6 BY MS. ANDERSON:

7 Q. Dr. Maxfield, what is her father

8 holding up in front of her?

9 A. It's a set of Christmas tree lights

10 that are blinking.

11 Q. And do you have an opinion, within a

12 reasonable degree of medical certainty, whether

13 she saw those lights?

14 A. In my opinion, she does because as you

15 progress you will see that she again follows the

16 position of the lights.

17 Q. So is it your opinion also that she

18 reacted to them?

19 A. I would say yes because she was

20 tracking them with her eyes, as far as you see it

21 on the videoclip, but when you were watching her

22 you could see that she was following.

23 MS. ANDERSON: Resume, please.

24 BY MS. ANDERSON:

25 Q. Is Terri moving her head?




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1 A. Yes, she is. If you can watch her eyes

2 you can see that they were following

3 predominately the lights.

4 Q. Dr. Maxfield, when her father spoke to

5 her about the lazy eye memories of her childhood

6 did she react?

7 A. In my opinion, yes, she did. And

8 another point that you might get off of the video

9 is the fact that she has site from previous

10 tracheotomy and she is now able to breathe on her

11 own.

12 Q. Yes. Given your knowledge of her

13 current condition in her brain, is it possible

14 she would have memories?

15 MR. FELOS: Your Honor, I object to the

16 form of the question. Anything is possible,

17 so it's not probative.

18 MS. ANDERSON: Not everything is

19 possible.

20 THE COURT: That's close enough.

21 MS. ANDERSON: I'm asking him to opine

22 within the parameters of the current

23 structure of her brain.

24 THE COURT: I'll allow the question.

25 THE WITNESS: In my opinion, yes, since




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1 the majority of the brain that she has is in

2 the frontal areas and this is where a lot of

3 your thought processes and memory is

4 located.

5 BY MS. ANDERSON:

6 Q. Just one more clip. Oh, on that clip

7 that we just saw, did she appear to laugh

8 initially at the story about the lazy eye that

9 her father was telling her?

10 A. She responded to it and it would be my

11 impression that she was trying to verbalize at

12 that point, yes.

13 MS. ANDERSON: Could you show clip

14 Cranford 02, please.

15 BY MS. ANDERSON:

16 Q. Dr. Maxfield, were you present when

17 Dr. Cranford conducted that examination of Terri?

18 A. No, I was not.

19 Q. Within a reasonable degree of medical

20 certainty, do you have an opinion having watched

21 that clip?

22 A. Yes.

23 Q. Whether she exhibited awareness of her

24 environment?

25 A. Yes, I do.




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1 Q. What is your opinion, sir?

2 A. That she is aware of the environment

3 because she was following the balloon for a

4 stranger in addition to following it for her

5 father as we had seen on a previous clip. So she

6 is able to see it. She is able to follow

7 objects.

8 Q. Does she also appear in that clip in

9 your judgment to be able to follow commands?

10 A. From the clip it's difficult to see if

11 the balloon was moving up at the same time that

12 she was being told to look up, but she certainly

13 did look up and then look down, as you could see

14 on the videoclip.

15 Q. And that eye action appeared to be in

16 response to a verbal command from Dr. Cranford?

17 A. That is correct, as far as you can see

18 on the tape.

19 MS. ANDERSON: I have no further

20 questions for this witness.

21 THE COURT: Thank you.

22 Cross-examination.

23 MR. FELOS: Yes, Your Honor. Before I

24 start my cross-examination, I would ask the

25 bailiff to reassemble the blowups that the




118



1 doctor referred to before.

2 And I would also like to see Exhibit 10

3 and Exhibit 96 which I believe the

4 Respondents have in their possession.

5 THE COURT: Ten and 96 are the CT scan.

6 MR. FELOS: Exhibit 96 is 1996 CT scan

7 and Exhibit 10 is the 2002.

8 THE COURT: Right, but that's what he's

9 putting up on the board.

10 MR. FELOS: Yes, and I would also like

11 to see the films that have been introduced

12 into evidence as Exhibit 10.

13 MS. ANDERSON: I don't have --

14 MR. FELOS: 2002 CT scan. Can you

15 reverse that. It was reversed on his direct

16 examination to make it a little bit easier.

17 Thank you.

18 BY MR. FELOS:

19 Q. Dr. Maxfield, we've met before at your

20 deposition?

21 A. Yes.

22 Q. Dr. Maxfield, what's the difference

23 between vegetative state and a coma?

24 A. Between -- I didn't hear the first

25 part.




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1 Q. Between vegetative state and a coma?

2 A. A vegetative state is the more severe

3 form of a coma where the patient has no response

4 to their environment and they usually cannot

5 breathe for themselves, usually cannot swallow.

6 Q. And what is -- how would you define a

7 coma?

8 A. A coma is when you have difficulty in

9 following commands and cannot perform in a normal

10 manner.

11 Q. So I gather then people might improve

12 from a vegetative state to a coma; is that

13 possible?

14 A. That is the progress that is usually

15 shown, yes.

16 Q. Okay. I would like to read one

17 sentence from Exhibit 4 which is in evidence,

18 which is the medical discharges from Mediplex

19 Rehab in Bradenton. And this is the fourth page

20 and it states, In presenting the illness, the

21 patient remained in a coma for approximately two

22 months and progressed only to a persistent

23 vegetative state.

24 How was it that, according to these

25 records, at least, the patient reported to have




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1 progressed from a coma to a persistent vegetative

2 state?

3 A. I don't understand the terminology that

4 they're using to make that statement. Usually

5 it's the other way around unless there has been a

6 progression of the brain injury. You can be in a

7 coma and then lose the ability to breathe,

8 swallow and do those two things.

9 There is no documentation there about,

10 from what you've read to me, as to what actually

11 occurred as to why they made that

12 differentiation.

13 Q. Now, you're familiar with the medical

14 aspects of the persistent vegetative state of the

15 Multi-Society Task Force on PVS that was

16 published in the New England Journal of Medicine?

17 A. I have not specifically referred to

18 that, no.

19 Q. Well, I'm going to ask you a couple of

20 questions regarding that, sir, and ask you if you

21 agree with this: The vegetative state is a

22 clinical condition of complete unawareness of the

23 self and the environment accompanied by

24 sleep/wake cycles with either complete or partial

25 preservation of hypothalamic and brain stem




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1 autonomic functions.

2 Would you agree with that definition of

3 vegetative state?

4 A. I would agree with parts of it, yes.

5 Q. What parts don't you agree with?

6 A. The fact of being unaware of your

7 environment and that it depends on how you define

8 vegetative state because there are other

9 definitions that include the inability to breathe

10 and the inability to swallow.

11 Q. Would you agree that a coma is a state

12 of unconsciousness?

13 A. That is a general description of it,

14 but there are different stages of degree of coma.

15 Q. Are coma patients -- do the eyes remain

16 closed in situations of coma patients?

17 A. Not necessarily, no. But they do not,

18 in a coma, will not follow objects in the

19 environment.

20 Q. Could you repeat that, sir, I didn't

21 hear that.

22 A. I said in a true coma they will not

23 follow objects in the environment.

24 Q. But their eyes could be opened?

25 A. Their eyes can be opened, yes.




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1 Q. Let me read you this definition of coma

2 from the article and see if you agree with this

3 definition. Coma is a deep sustained pathologic

4 unconsciousness that results from dysfunction of

5 the ascending reticular activating system in

6 either the brain stem or both the cerebral

7 hemispheres. The eyes remain closed and a

8 patient cannot be aroused.

9 A. That is a severe degree of coma.

10 Q. So I gather it's your opinion,

11 Dr. Maxfield, that when somebody is in a

12 vegetative state they're not responsive to their

13 environment at all?

14 A. That is part of the definition that I

15 am familiar with, yes.

16 Q. Okay. Well, does it make a difference,

17 then, whether the response is voluntary or

18 involuntary? Let's say the patient involuntarily

19 responds to pain, would they, according to you,

20 would they be considered in a vegetative

21 condition?

22 A. Pain could be just a reflex mediated by

23 the spinal cord.

24 Q. Would you say that such a pain reflex

25 is a response to the environment?




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1 A. That is a response to the environment,

2 but not where you are utilizing your sight,

3 hearing or smell as a response to the

4 environment.

5 Q. Okay. So then there are some responses

6 to the environment the patient can have and still

7 be in a vegetative state; is that correct?

8 A. Depending on the degree of the

9 vegetative state, yes.

10 Q. Okay. Now, is it true that one of the

11 reasons that you conclude that Terri Schiavo is

12 not in a vegetative state is because she responds

13 to pain?

14 A. No, that's -- I did not test that

15 myself.

16 Q. Do you recall I took your deposition

17 back on September 24th, 2002?

18 A. Yes.

19 Q. I'm going to read to you the following

20 question and answer. This is Page 15, Line 2.

21 So, in your opinion, if a patient

22 responds to the environment that contraindicates

23 a vegetative condition?

24 Answer: In my opinion, yes. And in

25 the records I believe there is a note that the




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1 nursing staff frequently gives medication for

2 pain. And if somebody is vegetative, they are

3 not responsive to pain, in my opinion.

4 Do you recall that answer?

5 A. I recall that answer. Your question a

6 minute ago, though, was related to induced pain

7 which is usually pain pricks in the extremities

8 which, as I indicated, that can produce a

9 response. So it's not exactly the same question.

10 Q. Okay. So we can at least establish

11 that if a patient does respond to pain that

12 doesn't necessarily mean that they're not in a

13 vegetative state; is that correct?

14 A. I'm sorry, I don't understand your

15 question.

16 Q. Let me rephrase that. I think there

17 was a double negative in there.

18 A patient in a vegetative state can

19 respond to pain; is that correct?

20 A. There can be reflexes. If pain is

21 administered to the arms or to the legs that is a

22 pain reflex that is related only to function in

23 the spinal cord and has nothing to do with

24 consciousness or truly vegetative state exactly.

25 Q. Are there some pain reflexes that are




125



1 mediated through the brain stem?

2 A. There are some pain -- yes.

3 Q. Now, how can you know -- how can you

4 know if someone applies a noxious stimulus to a

5 patient such as Terri Schiavo and let's say she

6 moans, how would you know whether that's an

7 involuntary or voluntary response?

8 A. It, again, depends on where you applied

9 it and how you do it. That would be within the

10 prerogative of the neurologist to make that

11 differentiation.

12 Q. You're not a neurologist, sir?

13 A. I'm not a neurologist, correct.

14 Q. Dr. Maxfield, is it true that you've

15 never been called upon to make a diagnosis on

16 whether or not a patient was in a persistent

17 vegetative state?

18 A. I don't know that that is necessarily

19 true because as a medical director of Hospice we

20 frequently ran into problems of making that type

21 of decision, but I don't remember that I was

22 called specifically to make an independent

23 evaluation.

24 Q. So, if I understand your answer, are

25 you saying you don't recall or --




126



1 A. I don't specifically recall, but in

2 dealing with the cancer patients sent to their

3 death I have faced that problem and have made

4 those decisions, but I don't recall specific

5 instances.

6 Q. Do you recall I took -- do you recall

7 you testified in this cause on July 10th

8 regarding what tests should be done for Terri

9 Schiavo?

10 A. I remember, yes.

11 Q. Okay. Do you recall this question and

12 answer from Page 49 of the transcript, Line 22.

13 Question: So my question then is not

14 concerning brain death, but persistent vegetative

15 state. Is it true that you've never been called

16 upon to make a diagnosis of whether a patient was

17 in a persistent vegetative state?

18 Answer: Not to make the diagnosis, but

19 to treat patients that have been previously

20 diagnosed as being in a vegetative state.

21 Do you recall that answer?

22 A. I think that's consistent with what I

23 just said, that I don't remember specifically

24 being called to make an independent diagnosis of

25 vegetative state, correct.




127



1 Q. Well, sir, is an answer not to make the

2 diagnosis the same as I don't recall?

3 A. Now you've got me confused.

4 Q. Well, your --

5 A. Please repeat the question.

6 Q. When you were asked on July 10th

7 whether you've ever been called -- is it true

8 that you've never been called to make a diagnosis

9 of whether a patient was in a persistent

10 vegetative state, your answer was, not to make

11 the diagnosis.

12 A. That's correct. That is what I said.

13 I believe that I had not been called as a primary

14 physician to make a diagnosis of vegetative

15 state.

16 Q. Okay. Now, Dr. Maxfield, is it true

17 that you've never published any work in the area

18 of neurology?

19 MS. ANDERSON: Your Honor, we will

20 stipulate, I guess, that Dr. Maxfield is not

21 being proffered to the Court as a witness in

22 neurology. He's being proffered to the

23 Court in radiology.

24 MR. FELOS: Your Honor, that's not the

25 question. He testified on direct




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1 examination, I believe, about the articles

2 that he's written.

3 He's written a number of articles and

4 I'm just asking if any are published -- any

5 of the articles he has written was in the

6 field of neurology.

7 MS. ANDERSON: I specifically asked

8 Dr. Maxfield if he had published in his area

9 of specialization and he said yes.

10 MR. FELOS: Well, Your Honor, this --

11 MS. ANDERSON: He also hasn't published

12 in podiatry or cardiac surgery.

13 MR. FELOS: Well, Terri Schiavo doesn't

14 have a foot disease. We're talking about

15 her neurological condition. He's giving

16 opinions concerning her neurologic

17 functions. I can certainly ask him, Your

18 Honor, if he's ever published any work in

19 that area.

20 THE COURT: Okay. Overruled.

21 THE WITNESS: I believe there are some

22 publications on brain scans, but I would

23 have to go back and look at my publications.

24 I have given lectures on brain scans.

25 BY MR. FELOS:




129



1 Q. And those articles on brain scans,

2 would you agree that they wouldn't directly be

3 considered neurology?

4 A. No, I disagree. They are a part of

5 neurology because the brain scans have become a

6 significant factor which relates to the diagnosis

7 of neurological disease.

8 Q. Well, do you recall that I asked you

9 this question at your deposition on Page 6, Line

10 13.

11 Question: Dr. Maxfield, have you -- I

12 notice in your affidavit and resume a number of

13 publications, many of them in radiology and the

14 imaging area. Have you published any work in the

15 area of neurology?

16 Answer: I don't believe that the ones

17 I have published would directly be considered

18 neurology. And you go on to mention that they

19 are in the field of brain scanning.

20 Do you recall that answer?

21 A. Yes, I do. And I think that's just

22 what I said, they're not directly in the field of

23 neurology, but they are part of the

24 decision-making process on which the neurologist

25 relies.




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1 Q. Sir, didn't you just testify a moment

2 or two ago that you believed that those

3 publications regarding brain scans would be

4 considered directly or would directly be

5 considered in the field of neurology?

6 MS. ANDERSON: Your Honor, this is

7 argumentative questioning. The record will

8 show what Dr. Maxfield testified.

9 THE COURT: Overruled.

10 BY MR. FELOS:

11 Q. Can you answer the question, sir?

12 A. I'm not sure what you're asking me.

13 MR. FELOS: Could you repeat the

14 question, please?

15 (Thereupon, the last question was read back by the

16 court reporter.)

17 THE WITNESS: What was the previous

18 question?

19 BY MR. FELOS:

20 Q. Do you understand that question, sir?

21 A. I understand that question, but it's

22 relative to the previous question that you had

23 asked me.

24 Q. Well, is it possible for you to answer

25 the question, sir? Do you understand that? You


131



1 could answer that one.

2 A. I still don't understand the question

3 that you're asking me.

4 Q. Do I understand, Dr. Maxfield, that one

5 of the reasons to support your opinion that Terri

6 Schiavo is not in a persistent vegetative state

7 is that because she swallows her saliva?

8 A. That is one of the factors, correct.

9 Q. Now, I would like to again read a

10 portion from the Medical Aspects of the

11 Persistent Vegetative State from Page 1501. In

12 most patients, talking about patients in a

13 persistent vegetative state, the gag, cough,

14 sucking and swallowing reflexes are observed.

15 Would you agree or disagree with that

16 statement?

17 A. It depends upon the degree of the

18 problem. That is one definition. There are

19 several definitions.

20 Q. Well --

21 A. This is again where you come back to

22 what is authoritative and what is not

23 authoritative.

24 Q. Well, isn't swallowing saliva an

25 involuntary reflex?




132



1 A. It is an involuntary reflex.

2 Q. And is something we do all?

3 A. Unless you do it on command.

4 Q. It's something that we do all day and

5 don't think about; isn't that correct?

6 A. Correct, that's what I had also added

7 unless you do it on command.

8 Q. Is there -- was there anything on this

9 tape that we saw in which a command was given to

10 Terri Schiavo to swallow your saliva?

11 A. That question was not asked.

12 Q. Right. And when you're sleeping and

13 unconscious normal sleeping people continue to

14 swallow their saliva, don't they?

15 A. They can, yes. They do.

16 Q. They do, of course. Well, then why --

17 given the fact that Terri Schiavo swallows her

18 saliva why, in your opinion, does that indicate

19 she's not in a vegetative condition?

20 A. Because that to me indicates that she

21 might have the ability to swallow food also.

22 Q. Well, so it's not swallowing her saliva

23 in and of itself that causes you to give your

24 opinion, it's a following supposition of yours so

25 that means that she might be able to swallow




133



1 food; is that correct?

2 A. It depends on how you look at the

3 question.

4 Q. Well, I'm trying to understand your

5 answer, Dr. Maxfield. Aside from the question of

6 whether a patient can swallow food, if a patient

7 can swallow saliva, why does that mean, in your

8 opinion, they're not in a persistent vegetative

9 state?

10 A. Because that is only one segment of the

11 definition of persistent vegetative state. And

12 it depends on whose definition you're looking at.

13 Q. But we're talking about your

14 definition?

15 A. In my definition that has not gone

16 along with the persistent vegetative state.

17 Q. Isn't the essence of being in a

18 persistent vegetative state having no cognitive

19 awareness?

20 A. That is one of the definitions, yes.

21 Q. Now, I guess I'm trying to figure out

22 what does being able to swallow have to do with

23 cognitive awareness?

24 A. It doesn't have anything to do with

25 cognitive awareness unless the individual can




134



1 swallow food that is offered to them.

2 Q. Now, did you -- and correct me if I'm

3 wrong, in your direct examination did you say

4 that Terri Schiavo responded to her father by

5 moving her head, by moving her head to the side

6 he was standing on?

7 A. I think it was more responding to her

8 father when he was moving the balloon and the

9 lights.

10 Q. Okay.

11 A. I don't think we actually looked at

12 that specific --

13 Q. So you're not contending that Terri

14 Schiavo exhibited that act of moving her head

15 from one side to the opposite side where her

16 father was standing?

17 A. When I observed her that is not on the

18 tape. When her mother was present, yes, she did

19 move directly to her mother's side and followed

20 her mother.

21 Q. Now, that was not on the basis of the

22 command?

23 A. It was on the basis of awareness that

24 her mother was there.

25 Q. Was her mother speaking at the time?




135



1 A. Yes.

2 Q. Let me read to you again a portion of

3 this report from Page 1500. As the result of the

4 relative preservation of brain stem functions

5 most patients in a vegetative state retain good

6 to normal reflexive regulation of vision and eye

7 movement.

8 Would you agree with that statement?

9 A. No, I would not. I think you just read

10 a statement a little bit earlier that said that

11 the eyes were closed.

12 Q. For a coma?

13 A. Well, a coma is part of the vegetative

14 state. A vegetative state is a severe degree of

15 a coma.

16 Q. So --

17 A. The most severe degree of coma.

18 Q. Is it your testimony that Terri Schiavo

19 can't be in a vegetative state because her eyes

20 are open?

21 A. Not only open, but she tracks objects

22 in her environment.

23 Q. Well, let's divide that answer into two

24 parts; having her eyes open and tracking. Is it

25 your testimony that because Theresa Schiavo's




136



1 eyes are open that she can't be in a persistent

2 vegetative state?

3 A. If you believe what you just read to me

4 a little bit earlier about the eyes being closed

5 in a vegetative state, yes.

6 Q. Well, I'm asking your opinion.

7 A. That is my opinion.

8 Q. That's your opinion that she's can't be

9 in a vegetative state because her eyes are open?

10 A. Not just that they're open because

11 you're trying to nitpick the individual points

12 and you can't do that because when you look at a

13 medical diagnosis you look at all of the points

14 and evaluate the whole and not the individual

15 points.

16 Q. Well, then let me --

17 A. At least in my opinion.

18 Q. Let me rephrase it. Does the fact that

19 a patient has their eyes opened in and of itself

20 mean that the patient -- in your opinion, mean

21 that the patient is not in a vegetative state?

22 A. No, it does not because you could have

23 a fixed stare that is unresponsive to anything

24 that can be, in my opinion, part of the

25 vegetative state.




137



1 Q. So it's the -- I gather it's not the

2 eyes being opened, per se, it's the ability to

3 follow objects or track that, in your opinion,

4 contraindicates a vegetative condition?

5 A. It's the ability of the patient to be

6 aware of their environment which that is a

7 segment of, yes.

8 Q. Excuse me. So, from your last answer,

9 could we agree that the salient factor is

10 awareness of the environment?

11 A. That is correct. That is a major

12 factor in a decision whether someone is in a

13 vegetative state or not.

14 Q. Okay. Now, let me read this to you

15 from page 1500. Patients in a vegetative state

16 often have inconsistent primitive auditory or

17 visual-orienting reflexes characterized by a

18 turning of the head and eyes towards peripheral

19 sounds or movements.

20 In rare cases, patients who have no

21 other evidence of consciousness over a period of

22 months or years have some degree of briefly

23 sustained visual pursuits or fixation which is

24 believed to be mediated through brain stem

25 structures.




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1 Would you agree with that?

2 A. I would agree with that statement, but

3 I do not believe that that applies to Terri.

4 Q. So there are -- you would agree that

5 the fact in and of itself that a patient visually

6 orients to a stimuli does not mean -- does not

7 necessarily mean they're not vegetative; would

8 you agree with that?

9 A. No, I would not, because of what you

10 just said in your reading of the information to

11 me and that this is occasionally. Terri does it

12 on a routine basis as demonstrated by the TV

13 scripts and my observation.

14 Q. I wasn't talking about Terri per se I

15 was talking in general. Would you --

16 A. No, you're trying to make me say that

17 simply one episode of visual tracking does not

18 mean that the patient is in a vegetative state

19 and that could be. But it's not where you have

20 repeated episodes of the individual being aware

21 of their environment then they are not in

22 vegetative state, in my opinion.

23 Q. Now, let's take an instance of visual

24 tracking which you said doesn't necessarily

25 exclude a diagnosis of persistent vegetative




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1 state. If a patient visually tracks or -- let me

2 rephrase that.

3 If a patient -- if an object comes in

4 to the field of view of a patient and the patient

5 moves his eyes towards the object, how do you

6 know whether that is reflexive or connotes

7 awareness?

8 A. I think that goes back to what you just

9 read a few minutes ago as to whether that's

10 something that's reproducible on a number of very

11 different occasions or whether it's something

12 simply that occurred one time.

13 Q. Now, on the segments we saw did Terri

14 follow -- consistently follow a command, look to

15 the right, Terri?

16 A. Not the command, but followed things in

17 her environment that she could see. And this was

18 demonstrated on both Dr. Cranford's as well as

19 the other videotapes.

20 Q. But the fact that she can follow things

21 in her environment, again, my question is, how

22 can you determine from that whether that connotes

23 awareness or reflex?

24 A. Because of what you just said. In your

25 definition you said occasional. If it's not




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1 occasional it's reproducible over many days and

2 months and it's not occasional and cannot be used

3 the definition that you're trying to use.

4 Q. No, I don't believe I used the word

5 occasional. I used the words, patients in a

6 vegetative state often have inconsistent

7 primitive, auditory or visual-orienting reflexes.

8 Now, isn't it true that on the tape

9 that there reduced occasions where Terri has no

10 visual orientation or does not follow an object

11 or fixate a gaze on an object?

12 A. There is the occasional time when she

13 moves away from an object and then comes back to

14 it. When you're moving something that is not

15 bright, then that is not apt to be a reflex.

16 Following the light is more apt to be a reflex

17 than following a balloon.

18 Q. Okay. Following lights is more apt to

19 be a reflex than following a balloon?

20 A. Correct.

21 Q. And why is that?

22 A. Because of the intensity of the light

23 compared to the area around the patient. It's

24 the same way that if you let a light into the eye

25 you get a reflex, a change in the pupil.




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1 Q. Dr. Maxfield, you, in essence, on the

2 tape we saw didn't examine Terri, did you? You

3 observed her; was that correct?

4 A. That's correct, because I'm not a

5 neurologist.

6 Q. Now, is it true that a radiologist --

7 and would you consider yourself a radiologist,

8 sir?

9 A. I am a radiologist, yes, but I'm also a

10 physician.

11 Q. Isn't what a radiologist -- doesn't a

12 radiologist primarily read films and administer

13 radiation therapy?

14 A. That is the classical diagnostic --

15 classical -- I'm sorry, classical description of

16 a diagnostic radiologist or a radiation

17 therapist, but I also believe I mentioned that I

18 was a medical director at Hospice in this area

19 for several years. And also in radiation therapy

20 you deal with the clinical side admitting

21 patients to the hospital, managing their course,

22 calling on consults from other physicians as

23 needed and actually managing the course of the

24 patient.

25 Q. Now --




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1 A. Many times unfortunately to their

2 death.

3 Q. Regarding your employment,

4 Dr. Maxfield, you mentioned, I believe, an

5 imaging center in Bradenton and a mobile CAT

6 scan, CAT Scan 2000, that you're affiliated with

7 both of those organizations?

8 A. Correct.

9 Q. Now, is your work for those

10 organizations, does that involve the reading of

11 x-rays or CAT scans or other diagnostic tests?

12 A. The work at CAT Scan 2000 is reading of

13 the CAT scans and CTs that we obtain on the

14 patients that come to our mobile units. And

15 Manatee Diagnostic Center is also interpretation

16 of the images from all of the modalities that we

17 do, MRI, CT, ultrasound, mammography and general

18 radiology.

19 Q. Last month, Dr. Maxfield, how many

20 patients did you meet with at CAT Scan 2000 and

21 Diagnostic Center in Bradenton?

22 A. I don't have a number. I don't keep

23 those numbers.

24 Q. Well --

25 A. I don't --




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1 Q. Did you --

2 A. That depends on what you say, how many

3 patients that you meet with. You will have to

4 define by what you mean by meet with.

5 Q. Well, let's start with sit down

6 face-to-face and talk with a patient.

7 A. I don't do that directly at CAT scan

8 because we read the studies if there's a

9 question. If a question comes back about the

10 study or if the patient has a question, then I

11 contact them and talk to them on the telephone,

12 but I don't sit down and visually meet with the

13 majority. I occasionally will meet with one

14 that's in the area who may come back and talk to

15 us.

16 Q. So basically your job with CAT Scan

17 2000 and Manatee Diagnostic Center is reading

18 studies. You're not treating patients there, are

19 you?

20 A. At CAT Scan it is reading studies,

21 correct.

22 Q. How about the Manatee Diagnostic

23 Center?

24 A. It depends upon the procedures that are

25 being done. If we're doing fluoroscopy and I




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1 have a question about the abdomen I will check

2 the abdomen. In doing fluoroscopy procedures you

3 talk to the patient and get additional

4 information from them.

5 If it's a question about something that

6 I want to evaluate, then I may see the patient

7 directly. When I do ultrasounds particularly of

8 the breast and then it is my routine to usually

9 examine the breast and correlate the findings on

10 that ultrasound with a mammography and with the

11 physical examination of the breast.

12 Q. Would you agree that to the extent you

13 have contact with patients at those facilities it

14 involves gathering information to have the test

15 performed successfully or safely?

16 A. That's part of making any diagnosis,

17 yes.

18 Q. Are you the treating physician for

19 those patients?

20 A. Not frequently. Most of those are sent

21 to us for referral.

22 Q. I believe you mentioned that you were

23 board certified in radiology?

24 A. That's correct.

25 Q. And what's the name of the board that




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1 you are -- that gave you that certification?

2 A. That's the American Board of Radiology.

3 Q. What is the American Board of Medical

4 Specialities, Dr. Maxfield?

5 A. That is a group that has certified

6 various individual boards.

7 Q. And is the American Board of Radiology

8 certified by the American Board of Medical

9 Specialities?

10 A. To my knowledge, yes.

11 Q. Is the -- your board certification in

12 hyperbaric oxygen, has that certification been

13 recognized by the American Board of Medical

14 Specialties?

15 A. That certification has not been

16 recognized by the American Board of Medical

17 Specialities. To my knowledge, there is no board

18 that had been set up that has been recognized in

19 hyperbaric medicine.

20 Q. Dr. Maxfield, currently are there any

21 local hospitals that you maintain privileges at?

22 A. At the present time I do not maintain

23 routine privileges. I practice in independent

24 freestanding centers. And I get hospital

25 privilege only when I go into local clinics at




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1 different hospitals. In this region I have had

2 radiology privileges at Bayfront Medical Center.

3 Q. Dr. Maxfield, you testified before

4 about the SPECT scan that was performed on Terri

5 Schiavo. Would you agree that that SPECT scan

6 shows moderate to severe abnormality?

7 A. Yes, I would.

8 Q. And, as I understand it, the SPECT

9 scan, in essence, tags the blood with an isotope

10 or substance that allows us to see where the

11 blood is going; is that correct?

12 A. There actually are two parts to the

13 SPECT scan, the radiopharmaceutical that you use

14 is injected into the vein and then you allow time

15 for it to circulate and locate in the area of the

16 brain.

17 If you're looking for just a profusion

18 of the brain, blood flow to the brain, then you

19 would take images at the time of injection of the

20 radioactive material and you could actually

21 measure the blood flow to the brain.

22 Q. Did you review the report -- did you

23 review the reading on the SPECT scan?

24 A. Yes.

25 Q. And did you agree with this reading?




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1 A. Essentially, yes.

2 Q. Now, talking about that reading, he

3 mentions areas of activity with the

4 radionuclide --

5 MS. ANDERSON: Your Honor, objection.

6 Mr. Felos is testifying.

7 MR. FELOS: I have a right to ask the

8 question based upon the reading, Your Honor.

9 MS. ANDERSON: He is reading a report

10 into evidence.

11 THE COURT: Is that report in evidence?

12 MS. ANDERSON: No.

13 MR. FELOS: No, it's not, Your Honor.

14 THE COURT: I don't think you ought to

15 be reading the document that's not in

16 evidence into the record. The witness had

17 said that he agrees with the report, so why

18 do you need to go further?

19 BY MR. FELOS:

20 Q. Dr. Maxfield, to your recollection,

21 what were the conclusions or findings in the

22 report?

23 A. That it was an abnormal SPECT scan.

24 Q. Do you recall the report mentioning

25 remarkably faint activity?




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1 A. That would fit with what you said

2 earlier about the moderate to severe, yes,

3 particularly in the occipital area.

4 Q. Do you agree that where there is no

5 localization of blood flow it means that there is

6 no live tissue there?

7 A. It depends on the way in which you do

8 your SPECT scan and the degree of activity in

9 other areas. That if there was no blood flow,

10 then you would have an area of no localization of

11 the tracer.

12 And that's what we see sometimes in

13 stroke, for instance, where you have an area of

14 tissue that has died and you have no

15 localization, the chance of getting that to come

16 back is very minimum.

17 But you also have areas of relative

18 decrease in localization which is due simply to

19 decrease in function of the brain cells because

20 the SPECT scan depends partly on blood flow to

21 get the tracer to the area and partially on the

22 concentration in normally functioning brain

23 cells.

24 Q. Well, I understand the degree of

25 localization, but if there's no localization in




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1 an area, does that indicate that there is no

2 brain tissue there?

3 A. Again, it depends on the way in which

4 you do your settings and the range in which

5 you're seeing things. If you have the ability to

6 see a range of gray scale and if this is an area

7 of marked decrease in that range in gray scale,

8 it may look like a hole, but there actually may

9 be blood flow to that area.

10 That comes back again to what I

11 testified about earlier I believe about the fact

12 that in the really totally severe vegetative coma

13 patient on which I've seen brain scans, SPECT

14 brain scans, that you actually see visualization

15 of the ventricles and not see the ventricles as

16 cold areas as we do on this scan.

17 Q. Now, you contend that a SPECT scan also

18 measures brain function; is that correct?

19 A. That is correct.

20 Q. And is that contention based upon the

21 premise that as blood is flowing to an area there

22 must be live tissue?

23 A. No, not necessarily.

24 Q. What is the basis of the premise, then,

25 that a SPECT scan measures brain functions?




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1 A. The fact that you can have what we call

2 idling neurons in the periphery of an area of

3 injury and these cells are alive and they get

4 blood flow, but because they're not functioning,

5 they do not show the same degree of localization

6 in cells that have normal oxygenation.

7 Q. Well, can't there be blood flow to

8 areas that don't have idling neurons or don't

9 have live neurons?

10 A. You mean to dead tissue?

11 Q. Yes.

12 A. Usually not. If the blood flow has

13 been shut off, then that does not have

14 localization. That goes back to the use of the

15 nuclear medicine blood flow studies that do

16 diagnose brain death. Because when you have no

17 flow at all to the cerebral hemispheres then this

18 is a brain death.

19 Q. Well, let's say you have an area of

20 tissue that's being served by -- provided blood

21 through the vascular system. And surrounding --

22 isn't it possible for surrounding tissue to die

23 but the vascular system to remain intact?

24 A. For a brief period of time that might

25 occur, but it has not been the pattern that we




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1 have seen routine.

2 Q. I'm going to read you another portion

3 of this report on page 1506: Once a vegetative

4 state exists, however, cerebral blood flow is

5 likely to be reduced.

6 Would you agree with that?

7 A. I think I would agree with it the other

8 way around, that once cerebral blood flow is

9 reduced the vegetative state develops because of

10 lack of oxygenation to the brain. As I pointed

11 out earlier, oxygen is the fuel to the brain and

12 when there's no oxygen the brain shuts down.

13 Q. Can a person in a vegetative state have

14 a normal cerebral blood flow?

15 A. In my opinion it probably would not be

16 normal unless it was a strictly toxic situation.

17 Q. Let me read this to you and see if you

18 agree with it: More recent radio --

19 MS. ANDERSON: Wait a second. What are

20 you reading from?

21 MR. FELOS: I'm reading from the report

22 Page 1506.

23 BY MR. FELOS:

24 Q. More recent radionuclide imaging

25 studies using HM-PAO single photoemission




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1 computed tomography -- is that a SPECT scan?

2 A. That's a SPECT scan, yes.

3 Q. Showed a global reduction in cerebral

4 blood flow 2 to 12 months after a head injury as

5 well as three years later. Some studies,

6 however, have found normal cerebral blood flow in

7 patients in a persistent vegetative state.

8 So would you agree that that can be

9 found? That normal blood flow, cerebral blood

10 flow, could be found in a patient in a persistent

11 vegetative state?

12 A. I don't believe that you've described

13 how they managed to measure the cerebral blood

14 flow whether this was with a SPECT or with other

15 techniques of measuring cerebral blood flow, such

16 as Xenon or some of the other tracers that we use

17 to look at blood flow.

18 Q. Well, do you think a SPECT scan -- do

19 you think a patient in a persistent vegetative

20 state can have a normal SPECT scan?

21 A. In my opinion, no, but that goes back

22 to what I just said. Recently from the South

23 Florida area where the SPECT scan was read as

24 normal, but the kid was in a vegetative coma and,

25 in my opinion, it was not a normal SPECT scan




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1 because this is the one where we were seeing only

2 the very minimum blood flow and the degree of

3 localization was such that you were seeing

4 ventricles swelling up.

5 So it depends on who is reading these

6 studies and unfortunately a lot of SPECT scans

7 have not been correctly read, based on my

8 opinion.

9 Q. Now, Dr. Maxfield, in order to have

10 cognitive functioning in the brain, do you have

11 to have properly operating or firing neurons?

12 A. That is correct.

13 Q. What are neuroglial cells,

14 Dr. Maxfield?

15 A. Those are one of the components of the

16 brain.

17 Q. Would you agree that that's the

18 connective tissue that binds and supports the

19 nerve tissue of the central nervous system?

20 A. I think that is one way of saying it,

21 yes.

22 Q. So neurons are not the only type of

23 cells located in the cerebrum, are they?

24 A. No.

25 Q. And would you agree that in order for




154



1 neurons to exist and operate they need to have

2 the supportive structure that the connected and

3 supportive tissue provides?

4 A. Based on what I know, they do not exist

5 by themselves, correct.

6 Q. So, Dr. Maxfield, why couldn't we have

7 blood flow to an area in the brain that has live

8 connective tissue, but dead neurons?

9 A. Based on the studies that we do, brain

10 profusion is the final diagnosis to brain death.

11 Q. Could you explain that? I didn't

12 understand how brain death fits into this

13 equation.

14 A. The most accurate way of making a

15 diagnosis of brain death is to show that there is

16 no brain profusion, which is what we do with some

17 of our nuclear medicine studies.

18 Q. Now, when you said profusion, what do

19 you mean? How do you define that?

20 A. That's blood flow to the brain area.

21 Q. But I wasn't asking about the profusion

22 of blood to the brain when someone was brain

23 dead. What I was asking you is: Couldn't you

24 have blood flow to connective tissue in the brain

25 that doesn't have live neurons?




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1 A. Based on the data that's been

2 accumulated it does not occur.

3 Q. Are you saying that there are no people

4 with connective tissue in their brain that has

5 been scarred and that is not -- that has been

6 scarred and doesn't support then active neurons?

7 A. I don't understand your question.

8 Q. Well, can neuroglial cells be damaged

9 and scarred?

10 A. Yes.

11 Q. And is it true that scar tissue

12 receives a blood supply?

13 A. It can, but going back to the

14 experience in using nuclear medicine profusion,

15 blood flow studies are the gold standard for

16 brain death. When there is brain death, there is

17 no blood flow.

18 Q. Well, I'm not talking about the death

19 of the brain in its entirety, but just an area of

20 the brain.

21 A. Well, the death of the neurons is what

22 causes -- classically what causes brain death

23 because if you've got no neurons you are brain

24 dead.

25 Q. Dr. Maxfield, can neurons be absent in




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1 a portion of the brain and present in another

2 portion of the brain?

3 A. That's possible, yes.

4 Q. And can connective tissue that has been

5 scarred be in one portion of the brain, but

6 healthy connective tissue be present in another

7 portion of the brain?

8 A. That is what we do see in a number of

9 neurological conditions, yes.

10 Q. Yes. So my question is: In that

11 situation where you have areas of the brain that

12 are functioning, but you have another area of the

13 brain that has scarred connective tissue but no

14 operating neurons, would you have blood flow to

15 that scarred connective tissue?

16 A. You can have some blood flow to the

17 scarred connective tissue under that

18 circumstance, yes.

19 Q. Thank you. Now, the highest

20 localization in the SPECT scan occurred in the

21 basal ganglia and the cerebellum; is that

22 correct?

23 A. That is correct on the report from

24 Dr. Pryor.

25 Q. And in your reading of the SPECT scan




157



1 as well?

2 A. That is correct, yes.

3 Q. Now, those areas, of course, do not

4 pertain to cognitive function, they pertain to

5 motor activities and reflexive activities; is

6 that correct?

7 A. And basic functions of the brain stem

8 of breathing and cardiac activity.

9 Q. Okay. So would you agree, then, that

10 the fact that Terri Schiavo has more localized --

11 more localization in the basal ganglia and

12 cerebellum, does not necessarily mean she has

13 cognitive awareness?

14 A. That's correct.

15 Q. Now, have you reviewed the reports of

16 the EEGs performed in this case?

17 A. I did in the past, but not recently.

18 Q. Do you recall what the results were?

19 A. As I remember, there were some

20 conflict. I don't remember specifically.

21 Q. So, is it fair to say that in reaching

22 your diagnosis in this case of Terri Schiavo's

23 medical condition, you haven't taken into account

24 the EEGs performed?

25 A. Not to a great degree, no.




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1 Q. Okay. Have you personally treated, and

2 by treated I mean not read the films, but were

3 the treating physician for any patients who has a

4 brain damage similar to or worse than Terri

5 Schiavo?

6 A. Not as the direct primary physician,

7 but as consultant for programs in hyperbaric

8 where these people are being treated.

9 Q. Okay. Now, hyperbaric oxygen therapy,

10 I gather, is dependent upon there being either

11 live neurons in the brain or neurons that are

12 damaged that have the potential to be restored;

13 is that correct?

14 A. The use for hyperbaric oxygen is where

15 you have neurons that are alive, but are not

16 functioning. That they're in an idling state.

17 That they are alive, but they're not doing their

18 job. As I've made the comment earlier about the

19 fibroblast in a non-healing wound, correct.

20 Q. What is a septic necrosis?

21 A. That is a destruction of bone tissue

22 that is due to the alteration of vascular supply

23 to the bone.

24 Q. And I believe you testified you were

25 benefited by hyperbaric oxygen therapy for that




159



1 condition; is that correct?

2 A. I testified that I had used it as part

3 of my reconstructive process for my hips and also

4 it did help initially with some of the decrease

5 in pain.

6 Q. Of course Terri Schiavo hasn't had a

7 hip replacement, has she?

8 A. No.

9 Q. Now, I think you also gave testimony

10 about there being a correlation between

11 neuro-imaging scans and a persistent and a

12 clinical condition of a persistent vegetative

13 state; is that correct?

14 A. There is a degree of correlation, yes.

15 Q. Let me read to you from page 1506 of

16 the report from the New England Journal of

17 Medicine.

18 MS. ANDERSON: First column or second?

19 MR. FELOS: First column.

20 BY MR. FELOS:

21 Q. Although there are no established

22 correlations between the results of neuro-imaging

23 studies and development of the vegetative state

24 or the potential recovery, most patients who do

25 not recover consciousness have abnormal scans.




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1 Would you agree with that statement?

2 A. That's a very general statement and I

3 would not disagree with it.

4 Q. Now, you mentioned a CT scan is a --

5 gives a structural analysis of the brain?

6 A. The non-enhanced CT scan, correct.

7 Q. So it doesn't provide a, per se, a

8 functional analysis to the brain, does it?

9 A. Not directly. You're looking at

10 predominantly at the anatomy.

11 Q. Only what we can infer from the anatomy

12 it might suggest function; would you agree with

13 that?

14 A. That is correct.

15 Q. Would you agree that smiling can be a

16 reflex action?

17 A. It could be.

18 Q. Now, I believe on direct examination

19 one of the reasons you stated you believed that

20 Terri Schiavo was aware of her mother was because

21 she was smiling.

22 Now, again, my question is: How would

23 you know whether that's a refex action or an

24 indication of cognition?

25 A. It would be the circumstance under