421



1 incidental comment that physician A, B, C or D

2 wishes to make randomly or in response to an

3 article and the editors may publish it just for a

4 matter of interest or to stimulate controversy,

5 and these things, but it's not an article that

6 provides substance in terms of any type of

7 evaluation with methodology and results that are

8 quantitative.

9 Q. I understand what a letter to the

10 editor is in the medical journal. Why did you

11 bring it up? Did you say you had reviewed a

12 letter to the editor from Lancet?

13 A. What you had asked is whether I

14 considered Lancet to be a journal that I relied

15 upon and I said, yes, except those items that

16 came out in letters to the editor that appear in

17 Lancet.

18 Q. What items were you talking about?

19 A. Items that are in a hypothetical letter

20 to the editor in the Journal of Lancet.

21 Q. So you were saying that you disregard

22 all letters to the editor in Lancet?

23 A. No, I may read them, but I don't have

24 the same feeling of importance with regard to

25 what that letter or what the articles do provide.




422



1 Usually They do not have, as I said, the same

2 substance as an article that does provide

3 methodology and epidemiological information and

4 so forth.

5 Q. Now, you're not saying in those letters

6 to the editor in Lancet alone, are you?

7 A. No.

8 Q. The same holds true with letters to the

9 editor in the New England Journal, JAMA or Stroke

10 or Circulation or the Journal of Hypertension or

11 the Journals of Neurosurgery. You're just making

12 the distinction that one is the report of

13 research and the other is a comment, a responsive

14 comment?

15 A. Yes. You asked me about Lancet,

16 however, the same pertains to these other

17 journals where the letters to the editor might

18 have some interest, but they do not have the same

19 import.

20 Q. Anything else that you consulted?

21 A. Yes.

22 Q. What else?

23 A. The Course of Outcome of Patients in

24 Vegetative State of Non-Traumatic Etiology. The

25 Journal of Neurology, Neurosurgery and




423



1 Psychiatry. Volume 56. Page 407. 1993.

2 Five-year Follow-up Study of Patients

3 with Persistent Vegetative State in the Journal

4 of Neurology, Neurosurgery and Psychiatry.

5 Volume 44. Page 552. 1981.

6 Q. Let me stop you right there. Did you

7 review the article by Dr. Andrews that was

8 published in the British Journal or the British

9 Medical Journal where he did a five-year

10 retrospective review of the admissions of PVS

11 patients and found a 43 percent error rate in

12 diagnosis?

13 A. No, I don't remember seeing that.

14 Q. You don't remember seeing that?

15 A. No.

16 Q. What else did you review?

17 A. The Minimally Conscious State, which

18 appeared in Neurology, 2002.

19 Q. Now, that was published with

20 reservations and was not adopted by the Academy

21 of American -- Academy of Neurology, was it?

22 A. I don't know whether it was or was not

23 considered for purposes of adoption. The Academy

24 of Neurology does not adopt an article. When I

25 was on the editorial board of Neurology and as




424



1 president of the Academy of Neurology,

2 recommendations can be given where the membership

3 would be able to acknowledge that the people who

4 did review a certain topic are recommending

5 certain things be done. There's no such thing as

6 adoption.

7 Q. Was there a recommendation?

8 A. I don't know of any.

9 Q. Was it published without the

10 recommendation and over the protest of some

11 neurologists in America who believed that in the

12 words of one of them that neurology is hijacked

13 by a certain number of extremists?

14 A. I don't know what you're talking about

15 in terms of hijacking. This was the consensus

16 report which implied that there were people who

17 disagreed with the final interpretation, but

18 that's okay. The academy does not say I agree

19 with the consensus or disagree with the

20 consensus.

21 Q. Again, do you recall reading anything

22 in that issue of Neurology, a very strong

23 statement in opposition to that paper?

24 A. Yes. There were some of the members of

25 the consensus that didn't agree with all the




425



1 commentary.

2 Q. In fact, this whole business of

3 diagnosis of minimally conscious state and

4 persistent vegetative state has been the subject

5 of an ongoing debate for some time now, hasn't

6 it?

7 A. I don't know about any ongoing debate.

8 The issue is a title, minimal conscious state,

9 persistent vegetative state. As you may have

10 seen from my report, I identified the problem as

11 being a profound static encephalopathy which can

12 be put into the category of the persistent

13 vegetative state. The issue is that the patient

14 does not have a progressive disease, that's why

15 it's called static.

16 Q. Right.

17 A. And I mentioned that it's a profound

18 type of impairment with regard to brain function

19 regardless of the reason for it.

20 Q. Would you say she is a victim of

21 hypoxic encephalopathy or anoxic?

22 A. I think she has hypoxic ischemic

23 encephalopathy.

24 Q. Hypoxic?

25 A. Hypoxic ischemic encephalopathy.




426



1 Q. Now, both of those words refer to --

2 MR. FELOS: Excuse me, Your Honor.

3 Excuse me. I think the witness ought to

4 have the ability to finish his answer. The

5 initial question was: What sources did you

6 refer to reach your definition.

7 He was in the middle of reciting --

8 MS. ANDERSON: I'm not --

9 MR. FELOS: Let me finish my objection.

10 He was in the middle of reciting what those

11 sources were. He should have an opportunity

12 to complete his answer.

13 MS. ANDERSON: I'm on

14 cross-examination. I've not completed that

15 topic.

16 THE COURT: Mr. Felos, I don't recall

17 her interrupting the witness or cutting him

18 off. If there's another issue that you need

19 to clean up on redirect you are certainly

20 free to do that.

21 MS. ANDERSON: Thank you, Your Honor.

22 BY MS. ANDERSON:

23 Q. Both of the terms anoxic and hypoxic

24 refer to oxygen starvation of the brain; do they

25 not?




427



1 A. Yes.

2 Q. In the brain context, of course?

3 A. I'm sorry?

4 Q. In the brain context?

5 A. It has to do with tissue and hypoxia

6 can occur involving any organ system, but you're

7 talking about the brain in this circumstance and

8 I understand what you're saying.

9 Q. Thank you. And so when the cells are

10 deprived of oxygen they will begin to die,

11 correct?

12 A. Yes.

13 Q. But she still has some brain tissue

14 remaining; does she not? Albeit severely

15 damaged?

16 A. She has brain tissue remaining, yes,

17 that's why she's functioning at the brain stem

18 level where there is integrity of the cells that

19 have to do with respiration and cardiac function.

20 Q. Right. Because she's not on a

21 respirator?

22 A. That's right.

23 Q. Now, when a cell inside the brain dies

24 eventually the body absorbs it; does it not?

25 A. It depends upon what kind of cell




428



1 you're talking about. If it's the skin, yes. If

2 it's the brain, it doesn't necessarily get

3 absorbed. It remains in to a firm area of

4 scarring. This is characteristically called a

5 glial scar. The neuron dies. The other cells

6 that are not as dependent upon oxygen may invade

7 the area and you'll have the scar.

8 Q. In your opinion, would there be

9 localization on that type of scar in a CT scan?

10 A. No, you're not going to be able to see

11 it.

12 Q. So what we see on the CT scan is not

13 scarring?

14 A. You see the tissue that is remaining

15 surrounded by lots of fluid because you have

16 shrunken brain tissue.

17 Q. Now, there is a well-established

18 concept in neurology, is there not, of ischemic

19 penumbra?

20 A. In a stroke situation an ischemic

21 penumbra is one of the terms that one uses to

22 identify the area which has been only partially

23 affected and has the potential for recovery next

24 to the stroke area.

25 Q. Because there is the situs of the




429



1 injury, the situs of the injury itself where

2 there are dead cells, correct? Then out from

3 that, around that, is the penumbra; is that the

4 concept?

5 A. Well, the cells are not recoverable in

6 the acute stroke circumstance in the site of

7 insult to begin with.

8 Q. Right.

9 A. It's the area surrounding that region

10 where there's a potential for recovery if

11 sufficient profusion of blood and nutrients and

12 oxygen can get there in time. This is the

13 concept, for example, of the use of a clot buster

14 in a patient who comes in with an acute stroke

15 situation so that you could help the patient.

16 Q. Those penumbral cells, if you will, are

17 still viable, but dysfunctional; would you agree

18 with that?

19 A. The cells in the penumbra may or may

20 not be functional. Their existence is for a

21 brief period of time, a 24 or 48 hours after an

22 acute insult. This is when the cells in the

23 penumbra can be recoverable when adequate blood

24 flow is restored to those regions.

25 Q. Do the penumbral cells remain idling or




430



1 hibernating or dysfunctional?

2 A. I've never heard those terms used. All

3 it means is that you do have an area where the

4 blood flow is marginal and the cells are not

5 functioning optimally.

6 In a typical clinical circumstance, a

7 patient who has weakness as a result of the

8 stroke may not have complete weakness, but still

9 can use the limb to some extent. And the hope is

10 that if you could get blood to the area that is

11 going to be able to accept it the patient's

12 weakness will be able to disappear.

13 If you don't get the blood to that area

14 that you're calling a penumbra, then the

15 patient's weakness will become profound. As I

16 say, it lasts for 24, 48 hours or so in a typical

17 rule.

18 Q. Are you aware of any studies that

19 recover those penumbra cells more than 48 hours

20 out?

21 A. No, I'm not familiar with anything that

22 is going to state that you can have those cells

23 recovered beyond 48 or perhaps a little bit

24 longer. This is an acute process. And this is

25 the circumstance in which this terminology is




431



1 used.

2 Q. Now, let me ask you this: Did I

3 understand you to say that those cells can be

4 brought back to function, hopefully, if adequate

5 nutrition, blood flow and oxygen gets to them?

6 A. Yes.

7 Q. Did I also understand you to say that

8 by dilating blood vessels you necessarily would

9 use blood pressure?

10 A. As a generality, if you're going to

11 dilate blood vessels in the head you will reduce

12 the cerebral profusion pressure or lower the

13 pressure force of the blood getting to the head.

14 And in a hypothetical patient who comes

15 in in a stroke state, if one reduces the pressure

16 significantly you will create a deterioration of

17 the brain tissue and you've lost all potential

18 advantage in terms of trying to get the penumbra

19 to be more functional.

20 Q. Are you aware of any recent research,

21 published research, that contradicts that

22 principle?

23 A. No.

24 Q. Would you agree that Stroke, the

25 journal Stroke --




432



1 A. Yes, I subscribe to it.

2 Q. Okay. And I presume you rely on the

3 information in it?

4 A. I read it. I sometimes do not agree,

5 however.

6 Q. Are you familiar with the article in

7 the March '97 issue of Stroke entitled

8 Perindopril Reduces Blood Pressure but not

9 Cerebral Blood Flow in Patients with Recent

10 Cerebral Ischemic Stroke?

11 A. I don't remember that in '97.

12 Q. The senior author there was Dyker. Are

13 you familiar, Dr. Greer, with Project Progress?

14 A. Project what, ma'am?

15 Q. Progress?

16 A. Progress? Is that an acronym for some

17 type of study that's going on?

18 Q. Well, it was reported last year and I'm

19 just asking you if you're familiar with it. It

20 was a large international study funded by the

21 World Health Organization.

22 A. I'm afraid there are so many large

23 studies with so many acronyms I can't remember

24 them. If you will let me answer a specific

25 question or try to I would be happy to.




433



1 Q. Are you familiar with Project HOPE?

2 A. Again, another acronym that dealt with

3 a study of an epidemiological type where you were

4 dealing with stroke patients.

5 Q. Did you know that both of those studies

6 involved thousands of patients?

7 A. Yes, many of the studies do.

8 Q. Were you aware that, in fact, stroke

9 therapy changed as a result? The recommended

10 stroke therapy changed as a result of Project

11 HOPE and its results on ramipril?

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

13 form of the question. There is no

14 foundation that stroke therapy has changed

15 as a result of those articles.

16 THE COURT: Well, it may be technically

17 incorrect as to form, but I'll allow it.

18 THE WITNESS: Over the years the

19 individual practitioner will review the

20 results of these large scale epidemiological

21 studies and agree or disagree in terms of

22 changing his or her practice with regard to

23 treating a stroke patient.

24 Right now, in contrast to what happened

25 in 1977 when I wrote about the use of




434



1 anticoagulation in the treatment of stroke I

2 no longer use it because of the risks. But

3 I don't remember any kind of dramatic change

4 with regard to the treatment of patients who

5 are to be prophylactically offered

6 medication to reduce stroke other than some

7 of the things that have been already alluded

8 to which I don't believe came forth

9 necessarily as a necessary of one

10 epidemiological study. There has been many

11 of them.

12 BY MS. ANDERSON:

13 Q. You don't remember getting sort of an

14 emergency press release because of the dramatic

15 results in reducing secondary strokes?

16 A. No, I don't.

17 MR. FELOS: Your Honor, same objection.

18 No foundation.

19 THE COURT: Overruled.

20 THE WITNESS: I don't remember

21 specifically getting any kind of an

22 emergency release from a pharmaceutical

23 company.

24 BY MS. ANDERSON:

25 Q. No, it was not from a pharmaceutical




435



1 company, Doctor. You don't remember getting any

2 notification of results of the study?

3 A. No, I get notifications very frequently

4 in my position where I do review what's going on

5 and I do not remember a detail of changing my way

6 of dealing with stroke patients because of X, Y

7 or Z comments.

8 Q. Do you remember seeing anything in the

9 New England Journal of Medicine and in Lancet

10 about the results of these studies?

11 A. If you tell me what the results are. I

12 don't remember specifically, as I say, with

13 regard to those large studies. I read large

14 study results all the time.

15 Q. Let me ask you this: Have you ever

16 heard of an article or a journal entitled Central

17 Nervous System Drugs?

18 A. No.

19 Q. Do you know Dr. Vaughan in the

20 Department of Medicine at the Wild Medical

21 College of Cornel University --

22 A. No.

23 Q. Are you acquainted with that

24 individual?

25 A. No.




436



1 Q. Are you acquainted with his publication

2 in the 2001 edition of CNS Drug entitled, Do

3 Statins Afford Neuroprotection in Patients with

4 Cerebral Ischemia and Strokes?

5 A. I don't know his article, but I've read

6 other articles on that topic.

7 Q. And, in fact, there's quite a bit of

8 research that's coming in in recent years on

9 that; is there not?

10 A. There have been many studies with the

11 use of statins in patients who have

12 hypercholesteremia as a means of protecting the

13 individual who is at risk for coronary artery

14 disease as well as strokes.

15 Q. Because sometimes they're --

16 unfortunately they occur together; do they not?

17 A. Sometimes the patient may have a heart

18 attack which causes the accumulation of the clot

19 in the wall of the heart because of a heart

20 defect and that clot may break off a piece and go

21 to the brain.

22 That's a circumstance where the statin

23 is not going to protect the brain. The statin

24 would have been able to protect the heart in

25 advance of the heart attack. Those are the




437



1 circumstances in which both elements exist.

2 Q. Nonetheless, statins have been found

3 through research recently to have this

4 neuroprotective effect; have they not?

5 A. Only under the circumstances that I've

6 described, when you're going to accumulate a

7 problem with regards to lipids or cholesterol,

8 narrowing of blood vessel wall interfering with

9 the flow of blood to the area that will

10 potentially cause a stroke.

11 If you could prevent that from

12 occurring and it's not an overnight type of

13 reaction, we're talking about months and years of

14 treatment in addition to these other concepts of

15 treating a patient, as I mentioned before,

16 exercise, diet and so forth.

17 Q. Now, isn't the more modern thinking

18 that narrowing of the arteries may be a result of

19 inflammation in the blood vessel walls?

20 A. One of the concepts has been that you

21 are dealing with an inflammatory reaction indeed,

22 a specific germ has been attributed to creating

23 this type of process. It has not found favor to

24 the extent that I routinely treat a patient, for

25 example, who has a stroke or a stroke potential




438



1 with a drug such as non-thyroid anti-inflammatory

2 drug such as Ibuprofen or something of this

3 nature with the anticipation that this will

4 reduce the frequency or the incidents of stroke

5 in my particular patient.

6 Q. Now, how many PVS patients are you the

7 attending physician for right now?

8 A. None. We're talking about persistent

9 vegetative state?

10 Q. That's correct, persistent vegetative

11 state. And you are a full professor now with

12 great and singular distinction of holding an

13 endowed chair, correct?

14 A. Yes.

15 Q. Which freezes up more of your time;

16 does it not?

17 A. No.

18 Q. You have relinquished all of your

19 administrative duties in the department?

20 A. That's right, and --

21 Q. No more class scheduling?

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

23 the witness have an opportunity to finish

24 his answer. He was interrupted in the

25 middle.




439



1 THE COURT: He's holding his own pretty

2 good, Mr. Felos. If it gets to be a problem

3 we'll take care of it. Please proceed.

4 BY MS. ANDERSON:

5 Q. As a full professor, what are your

6 teaching duties now?

7 A. They have increased as a result of my

8 relinquishing my administrative responsibility.

9 I'm able to teach our students more. I'm in our

10 clinic at the Shands Neurology Clinic three

11 afternoons a week.

12 I'm involved with medical students as

13 well as resident teaching and fellow teaching

14 during that time. I participate in conferences.

15 This is in addition to my other clinical

16 responsibilities where I am the State of Florida

17 neurological consultant for inmates and I go to a

18 local prison where all prisoners are filtered who

19 have neurological problems throughout the state

20 for me to provide input.

21 So I have not diminished my activities

22 from the clinical prospective and certainly not

23 from the teaching perspective either.

24 Q. You're a consultant to the Department

25 of Corrections for Lake Butler?




440



1 A. Yes.

2 Q. Do you go to Lake Butler?

3 A. Yes.

4 Q. Is that where it is?

5 A. Yes.

6 Q. How many hours a week or what

7 percentage of your time is spent teaching?

8 A. The teaching is done concomitant with

9 patient care activities, so I'll have a group of

10 students who are with me and I'll see on Monday,

11 and Wednesday and often on Thursday. Patients,

12 six or seven or eight new patients. They'll see

13 the patient. I'll consult with them. I'll teach

14 with them. I'll review their write-ups. I'll

15 give them feedback.

16 This is the type of teaching which I do

17 in addition to the more formal teaching where

18 there are certain courses that members of the

19 faculty will be involved with in terms of

20 teaching on a topic.

21 Q. Do you teach a class in neurology to

22 medical students?

23 A. Yes. We have medical students that

24 rotate on our service throughout the entire year

25 during their third year of training. I also




441



1 teach medical students as a group of the entire

2 120 or so of them on a topic of neurology during

3 their second year.

4 From time to time I'm asked as an

5 invitee to a basic science course in the first

6 year and will teach medical students then. Then

7 in the fourth year we have elective students.

8 These are students who want to learn a little bit

9 more and they'll go with me on consultation

10 grounds where in addition to seeing patients in

11 the clinic, we'll see patients on the obstetrics

12 floor or the surgical floor or something of this

13 nature.

14 Q. What are grand rounds?

15 A. Once a week in the department of

16 neurology we have a rounding period that lasts

17 about an hour-and-a-half where usually what we do

18 in our department is take an interesting case and

19 have one of the professors discuss it without

20 knowing the answer. And then the other

21 professors and assistant professors and surgical

22 professors will have an opportunity based on the

23 presentation to have their input into what's

24 going on.

25 Now, this is in front of a group of




442



1 medical students and psychologists and others who

2 are in the field of health care profession that

3 they're interested in what we're able to say.

4 This is an educational forum, so to speak.

5 Q. Now, do other departments in the

6 College of Medicine do that as well?

7 A. Yes, they have their own grand rounds.

8 Q. And occasionally do you invite someone

9 not at the university to make a presentation?

10 A. Yes.

11 Q. Someone perhaps who is in private

12 practice?

13 A. I don't know of anyone that the

14 Department of Neurology has ever invited who was

15 in private practice to give a talk. I don't know

16 about other departments and what they've done.

17 Q. You would not know, for example, that

18 Dr. Hammesfahr has lectured at grand rounds at

19 the invitation of the Department of Cardiology at

20 the University of Florida?

21 MR. FELOS: Your Honor, I object as to

22 lack of foundation. I don't remember any

23 testimony regarding Dr. Hammesfhar giving a

24 lecture at grand rounds.

25 MS. ANDERSON: He testified about it.




443



1 BY MS. ANDERSON:

2 Q. Are you unaware of that?

3 A. I don't know about Dr. Hammesfhar --

4 MR. FELOS: Excuse me, Your Honor --

5 THE COURT: Well, I was going to say, I

6 don't recall him saying that. I'll

7 certainly take your word for it,

8 Ms. Anderson. The witness has already

9 answered, I believe.

10 BY MS. ANDERSON:

11 Q. You're saying You're not aware that the

12 Department of Cardiology had him as a guest

13 lecturer at grand rounds?

14 A. That's right. And cardiology is not a

15 department, it's a division of the Department of

16 Medicine.

17 Q. Are all of the journals that you've

18 mentioned authoritative sources or information

19 about medical information in their respective

20 areas?

21 A. No. We're not talking about every

22 single word that's written in the English Journal

23 as being authoritative that I rely upon. I have

24 read articles over the years where I feel that

25 this is a useless article.




444



1 There are other articles which I would

2 read and feel that there are certain components

3 that I think are great and very helpful, but not

4 necessarily sold on what's being written on a

5 particular topic or a particular article.

6 I'm very selective. That's the way I

7 do teach to have the student understand the

8 necessity to use their own intellect to sift

9 materials that come and see if it makes sense.

10 Q. And also to keep their minds open to

11 new ideas?

12 A. Always.

13 Q. Because the state of medical knowledge

14 is constantly changing, expanding and evolving;

15 is it not?

16 A. I hope so, yes.

17 Q. And, in fact, 10 or 15 years ago

18 hyperbaric therapy was not a recognized use in

19 wound healing, yet it's routinely used for that

20 purpose today; is it not?

21 A. It is used in circumstances where

22 there's an anaerobic organism that cannot be

23 killed, if you will, by antibiotics and one way

24 of helping it is to produce increased oxygenation

25 to the tissue.




445



1 Q. Now, would you agree that Medicare has

2 approved eleven distinctive and separate uses for

3 hyperbaric oxygen therapy?

4 A. I'm not familiar with that.

5 Q. Okay. You've never used hyperbaric

6 oxygen for your patients?

7 A. Oh, no, I have. We spoke about the

8 bends. That's the typical type of patient who I

9 will see. The young person who goes diving and

10 comes up too rapidly are sent to us because he's

11 a paraplegic. He's got a spinal cord injury.

12 And the hope is to have him recover and you put

13 him into a hyperbaric chamber.

14 Q. So you yourself have done that?

15 A. Yeah.

16 Q. I see. I thought you were speaking in

17 the abstract, but you were actually talking about

18 patient care that you have afforded yourself?

19 A. I don't remember the question coming up

20 before other than when I've already spoken about

21 the topic to Mr. Felos when he asked the

22 questions.

23 Q. Do you keep up with hyperbaric oxygen

24 therapy research?

25 A. I read journals. I subscribe to dozens




446



1 of journals. If there's an article on hyperbaric

2 oxygen, I probably will take a look at it.

3 Q. Are you aware that a major research

4 university in the U.S. is now doing animals

5 trials involving hyperbaric and CNS injuries?

6 MR. FELOS: Objection, lack of

7 foundation.

8 THE COURT: Overruled.

9 THE WITNESS: Hyperbaric oxygen has

10 been offered for patients who come in with

11 brain trauma, in patients with acute stroke,

12 this has been going on for years and it has

13 not been proven to be an effective approach

14 for treatment.

15 BY MS. ANDERSON:

16 Q. Now, there is no suggestion in this

17 case, you understand, that anyone claims to be

18 able to revive dead brain cells; you understand

19 that, don't you?

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

21 form of that question. I believe we did

22 have one witness who made that assertion.

23 MS. ANDERSON: That's not true. That's

24 not true.

25 BY MS. ANDERSON:




447



1 Q. When a cell is dead it's gone, isn't

2 it, Doctor?

3 MR. FELOS: Your Honor, that was a

4 mischaracterization of the record in this

5 case. I believe one of Respondent's

6 witnesses did testify to that effect.

7 THE COURT: There was discussion about

8 the stem cells and regeneration.

9 MS. ANDERSON: Well, that's an entirely

10 different thing.

11 THE COURT: But I'm assuming

12 regeneration is something that's dead that

13 now becomes alive. That's my understanding

14 of what that word means.

15 BY MS. ANDERSON:

16 Q. Stem cell research --

17 MR. FELOS: Excuse me. On my

18 objection, Your Honor, that's not what I was

19 referring to. I was referring to the

20 testimony that Terri's brain cells had been

21 regenerated. I mean, there was testimony to

22 that effect and that's why I do not think

23 that that question adequately reflects the

24 record.

25 MS. ANDERSON: There was no testimony




448



1 to that effect. Zero. He's making that up,

2 Judge. That's not correct. He --

3 MR. FELOS: Your Honor, your witness

4 testified that her brain regenerated --

5 THE COURT: Time out. Time out. The

6 testimony was is that in the six years the

7 brain tissue had become more homogeneous, I

8 believe.

9 MS. ANDERSON: Right. That's correct.

10 THE COURT: So I'm not -- Ms. Anderson,

11 your memory may be better than mine. I

12 don't recall regeneration being anything

13 other than a hypothetical comment regarding

14 stem cells.

15 So I'm going to overrule the objection

16 based on my recollection. Again, Mr. Felos,

17 I could be wrong.

18 MS. ANDERSON: Your recollection was

19 accurate, Judge.

20 BY MS. ANDERSON:

21 Q. Dr. Greer --

22 A. I'm sorry? Did you ask a question?

23 Would you mind repeating it?

24 Q. I'm getting to it.

25 A. Okay.




449



1 Q. We had what is known in the trade as

2 colloquy.

3 Are you aware of advances in the

4 treatment of Alzheimer's patients?

5 A. Advances in the treatment of

6 Alzheimer's patients is something that has been

7 put forth as a concept for many, many years.

8 What in particular are you interesting on me

9 commenting on?

10 Q. Have you been looking at the research

11 this year that has come out about the possible

12 use of stem cells to repair brain damage?

13 A. Stem cell repair of patients who have

14 degenerative diseases or stroke or multiple

15 sclerosis has been in the forefront of the minds

16 of people who are working in these fields since

17 it was allowed to be offered.

18 Yes, I'm familiar with the concept.

19 And I'm also familiar with the lack of success so

20 far in trying to assist patients who, for

21 example, have a degenerative disease such as

22 Alzheimer's disease with the concept being that

23 we will create new cells by injecting stem cells

24 that will replace the cells that are damaged.

25 A more important concept that, I'm




450



1 sorry to digress, but since you're going so far

2 afield, is an understanding that the individual

3 who does not have irretrievable Alzheimer's

4 disease, but is of an age where there's a

5 potential of that patient losing cognitive

6 function, as we get older, the memory is not as

7 sharp as it used to be. And the way to preserve

8 that is with continued mental stimulation.

9 The concept --

10 Q. Mental stimulation?

11 A. Mental stimulation.

12 Q. Yes. And so stimulation of a patient

13 with brain damage would be or the changes that

14 are associated with Alzheimer's as well would be

15 important?

16 A. The changes with Alzheimer's disease

17 are once again an irreversible phenomenon that

18 exists in the brain that neurofibrillary tangles

19 and senile plaques.

20 This is the pathology. You take a

21 brain and you slice it up, this is what you see.

22 You're not going to wipe away the plaques.

23 You're not going to wipe away the scar tissue.

24 The hope is, the hope in a patient who

25 is getting on in years is if there's a potential




451



1 for that patient to continue to stimulate the

2 cells this is the way of trying to do something,

3 but stem cells has not been proven to do anything

4 yet.

5 Q. And, in fact, the research is in the

6 animal trial stage, isn't it?

7 A. There is no human that I know that's

8 been offered stem cells for this purpose.

9 Q. That's my point. It's at the animal

10 trial stage, correct?

11 A. That's the alternative to the human,

12 yes.

13 Q. Well, it's moved out to animals; has it

14 not?

15 A. Yes.

16 Q. Would you say it's a promising area of

17 inquiry?

18 A. Yes. I'm in favor of it, certainly.

19 Q. Now, would you require some sort of

20 proof before you ordered hyperbaric therapy for a

21 brain-injured patient to help recover cognitive

22 function?

23 A. I would require a knowledge of the

24 theory that I'm willing to accept. I am

25 interested in understanding the effects that have




452



1 been put forth which seem to be reliable and

2 reasonable which I would be able to acknowledge

3 as being something that would then allow me to

4 say to my hypothetical patient who comes in with

5 an acute stroke we're going to give you

6 hyperbaric oxygen or my patient who comes in as a

7 result of an automobile accident and say, yes,

8 you've got hemorrhages in your brain, but we

9 think we could help with you hyperbaric oxygen.

10 I certainly would never consider it on

11 the basis of my knowledge in the treatment of a

12 patient who has a static encephalopathy that has

13 been years and years in duration.

14 Q. What therapy has Mrs. Schiavo received

15 since 1992?

16 A. She has received the therapy of the

17 nursing staff who have attempted to maintain her

18 limbs.

19 Q. What else?

20 A. That's about it. In terms of therapy

21 that she has in the past before all of this has

22 been receiving medication for spasms of her limbs

23 which have been ineffective.

24 Q. When did she receive that?

25 A. Oh, I think that was early on when she




453



1 was receiving treatment with drugs such as

2 Baclofen, if I'm not mistaken.

3 Q. Well, let me ask you to confine your

4 answer to the last 10 years.

5 A. No, I don't think that she's received

6 any other type of treatment approach beyond the

7 hands-on approach, which would be to passively

8 try to keep her limbs from developing fixed

9 contractures that would cause her to have skin

10 breakdown. She's receiving therapy of a

11 prophylactic type with regard to bowel and

12 bladder function.

13 Q. What therapy is that?

14 A. She is being changed and cleaned.

15 Q. That's nursing care, isn't it?

16 A. That's therapy, too.

17 Q. Oh, I see. Let me ask you this: What

18 has been done in the last 10 years to help Terri

19 get better?

20 A. She has been cared for. She has had

21 her limbs moved. She has had her body rotated to

22 prevent the development of pneumonia. She has

23 been followed closely --

24 Q. By whom?

25 A. -- her vital signs in the nursing




454



1 units.

2 Q. So she's received good nursing care?

3 A. She's receiving therapy from nurses who

4 understand the principles of physiologic care.

5 Q. Okay. Has she received any physical

6 therapy?

7 A. Passive movement is what I recognized

8 which was being done. For example, currently the

9 nurses are aware of the fact that she has a

10 tendency of having her hands in a clasped

11 fashion. This can cause a maceration of tissue,

12 tissue breakdown, secondary infection. They

13 clean it. They put a gauze ball in that area so

14 that she doesn't develop any particular problems.

15 That's treatment also.

16 Q. Now, that is the type of care that is

17 designed to prevent her from deteriorating any

18 worse; wouldn't you agree?

19 A. That's right. And it maintains

20 whatever can be maintained.

21 Q. Now, let me ask you this question

22 again: What has been done for her to help her

23 get better?

24 A. There is nothing other than maintaining

25 her physiological state because there is nothing




455



1 that can be done to make her get better from the

2 neurological perspective.

3 Q. So physical therapy would be of no

4 value to her?

5 A. The physical therapy, no, other than

6 what the nurses are doing because she has just

7 fixed contractures of her limbs that nobody is

8 going to be able to extend it completely.

9 Q. And you say you've watched the

10 videotapes of the other physicians?

11 A. Yes.

12 Q. Do you notice anything about extension

13 in any of those videotapes of one of Terri's

14 limbs?

15 A. I recognized that extension could be

16 undertaken with great effort. I recognize the

17 patient moving the limb as one has seen her from

18 the perspective of the spontaneous activity, yes,

19 I've seen that.

20 Q. In any of the videotapes?

21 A. I'm sorry?

22 Q. In the videotapes?

23 A. I was there. I saw her. And the

24 videotapes also demonstrated that somebody was

25 extending the limb. Dr. Cranford mentioned about




456



1 the hand. Dr. Hammesfhar moved the upper

2 extremities. I'm afraid that there was not very

3 much that was done by the radiologist whose name

4 I forget, who was also someone looking at who did

5 the video of her.

6 Q. Now --

7 MR. FELOS: Excuse me, Your Honor. If

8 I may, we've been into Dr. Greer's

9 examination now for about an

10 hour-and-a-half. I just wanted to inquire

11 of the Court and the witness perhaps whether

12 it might be a good time to take a short

13 break.

14 MS. ANDERSON: I have just a couple of

15 more questions along this line before we

16 break and I would appreciate the opportunity

17 to ask them before we do.

18 THE COURT: The clock on the bench says

19 10:53. I was going to ask about 10:55, but

20 Mr. Felos got there first. We've got a

21 couple questions to tie up in this area and

22 let's go ahead and take those.

23 BY MS. ANDERSON:

24 Q. Dr. Greer, how long was

25 Dr. Hammesfahr's videotape examination, without




457



1 referring to your notes; if you can remember?

2 A. Oh, you want me not to refer to my

3 notes?

4 Q. First I want to have you try to answer

5 it before referring to your notes.

6 A. It was about an hour-and-a-half.

7 Q. Now refer to your notes.

8 A. It began at 12:35 and then it concluded

9 at 3:14 with breaks in between.

10 MS. ANDERSON: Okay. I have some other

11 questions, obviously, for Dr. Greer, but if

12 this is a convenient moment to break that

13 will be fine with me.

14 THE COURT: Okay. Let's take 15

15 minutes. Doctor, you're still technically

16 on the stand, so please do not discuss this

17 case or your testimony with anyone.

18 THE WITNESS: Yes, Your Honor.

19 THE COURT: Thank you.

20 MR. FELOS: Dr. Greer, do you want your

21 notes back?

22 THE WITNESS: Yes, that's what I'm

23 interested in having retrieved.

24 MS. ANDERSON: Actually, could we get a

25 copy of this and mark it for the record,




458



1 please?

2 MR. FELOS: Your Honor, that's improper

3 to take the witness' notes. There's no

4 reason to copy it and mark it for the

5 record.

6 THE COURT: There may be no reason from

7 your perspective, but give me legal

8 justification for not doing it.

9 MR. FELOS: Excuse me, Your Honor?

10 THE COURT: What's the legal basis of

11 the notes that are refreshing the witness'

12 memory not being made available for the

13 Court?

14 MR. FELOS: Well, Your Honor, I'll

15 check Ehrhardt on that, but his testimony is

16 the evidence, not the notes from which he is

17 refreshing his recollection, number one.

18 Number two, it's not on a witness list.

19 Number three, the notes he may have

20 written before are not his in-court

21 testimony. They're hearsay. They're not

22 being introduced as prior inconsistent

23 statements. They're not admissible.

24 MS. ANDERSON: They are documents from

25 which he read.




459



1 THE COURT: We will see. Mr. Bailiff,

2 could you get a copy of that?

3 THE BAILIFF: I certainly will.

4 THE COURT: Thank you. Then we'll take

5 up what Professor Ehrhardt has to say after

6 the break. Ms. Anderson this discussion

7 about Mr. Felos' order, does that have to be

8 on the record or --

9 MS. ANDERSON: I don't understand.

10 THE COURT: You wanted during the break

11 to talk about some order that Mr. Felos

12 submitted. Does that need to be on the

13 record or not?

14 MS. ANDERSON: Well, since we're

15 discussing orders it probably should be on

16 the record.

17 THE COURT: Fine. Dr. Greer, you may

18 stand down. Thank you. We'll start our

19 15-minute when we break, so you may actually

20 get 20 instead of 15.

21 MS. ANDERSON: You just gave Dr. Greer

22 the cautionary instruction?

23 THE COURT: Yes, ma'am.

24 MS. ANDERSON: Okay. Good. There are

25 two orders that I received yesterday




460



1 afternoon via fax. One of them is okay and

2 the other one I think misstates what the

3 Court ruled and probably --

4 THE COURT: Do you have the originals,

5 by the way, Mr. Felos?

6 MR. FELOS: No, Your Honor. I had --

7 in fact, I don't have those with me today.

8 I had circulated them and requested comment

9 by next week, so I didn't know we were going

10 to take up that matter today. I don't know

11 the nature of any objection. Perhaps if

12 counsel mentioned it to me we could work

13 that out ourselves.

14 THE COURT: Well, if this is just being

15 circulating for the purpose of discussion --

16 MS. ANDERSON: Well, it hasn't been

17 presented to the Court?

18 THE COURT: Mr. Felos says no.

19 MS. ANDERSON: The reason I'm objecting

20 is that it imposes the prior restraint and

21 rules in a way that the Court did not rule.

22 MR. FELOS: Which order are we

23 referring to?

24 THE COURT: I assume it has to do with

25 the motion --




461



1 MS. ANDERSON: No, it's under

2 Mr. Felos' Motion to Limit Access to

3 Judicial Records. It's that order. It is

4 objectionable.

5 THE COURT: Okay. Well, then he was

6 inviting comment by sometime next week which

7 I'm assuming is after Tuesday. You can

8 conceivably discuss it Tuesday.

9 MR. FELOS: In fact, I sent a copy of

10 the proposed order to Mr. McQuire the

11 attorney for the proposed intervener for

12 WFLA and it gave him until Tuesday to make a

13 comment. So perhaps it might be best to

14 take that up on Tuesday, Your Honor, because

15 I don't know if Mr. McQuire might have any

16 particular objection.

17 THE COURT: Did you send a copy to, I

18 believe, WTSP's attorney also, Philip --

19 what is his name?

20 MS. ANDERSON: Campbell. C. Philip

21 Campbell.

22 THE COURT: You may want to do that,

23 Mr. Felos.

24 MR. FELOS: I'll do that as well.

25 THE COURT: As long as we're talking




462



1 about Tuesday -- Madam Reporter, this

2 doesn't need to be taken down.

3 (Thereupon, there was an off-the-record discussion

4 and court was in recess for 15-minutes.)

5 THE COURT: Mr. Felos?

6 MR. FELOS: Before we proceed with

7 cross-examination I want to renew my

8 objection and also add a Motion to Strike

9 regarding the question of opposing counsel

10 to the witness predicated on the fact that

11 no witness has stated that the brain can

12 regenerate.

13 In the break I asked the court reporter

14 to review Dr. Maxfield's testimony and I

15 believe, and I'll ask the court reporter to

16 read it, that on direct examination

17 Dr. Maxfield testified that the reason he

18 thought the brain looked more homogeneous or

19 became more homogeneous was due to

20 regeneration.

21 And if the Court would like, I could

22 have the court reporter read that and on

23 that basis move to strike that question

24 because it was not based upon the state of

25 the record.




463



1 THE COURT: Well, now Dr. Maxfield

2 testified for some six hours plus or minus.

3 Does the reporter need six hours to review

4 her notes?

5 MR. FELOS: No, but she did review a

6 segment in which he attributed brain

7 regeneration, regeneration of the brain to

8 the reason that he finds the tissue to be

9 more homogeneous.

10 MS. ANDERSON: This court reporter did

11 not take Dr. Maxfield's testimony.

12 THE COURT: Yes, she did.

13 MS. ANDERSON: Oh, she did? You did

14 take it?

15 THE COURT REPORTER: Yes, ma'am.

16 THE COURT: She was here.

17 MS. ANDERSON: The other reporter Tonya

18 took the first two days.

19 THE COURT: Dr. Gambone and

20 Dr. Hammesfahr.

21 MS. ANDERSON: Right. My recollection

22 is the same as the Court's which is that he

23 testified and made an analogy the brain

24 tissue in that one particular place was

25 similar to the difference between the




464



1 smoothness, the more homogeneous appearance

2 of this lecturn compared to the carpet in

3 the courtroom.

4 MR. FELOS: We could have the court

5 reporter read the segment, but the question

6 of counsel that I'm moving to strike is on

7 the basis of her statement that no doctor

8 testified that the brain could regenerate.

9 And I believe that's exactly what

10 Dr. Maxfield did testify to as reflected in

11 the portion the court reporter has found.

12 THE COURT: Mr. Felos, I don't know if

13 he corrected himself. I don't know what he

14 said before or after what the excerpt is.

15 It's such a collateral matter. Is it really

16 that important?

17 MS. ANDERSON: The record is what it

18 is, Your Honor.

19 THE COURT: Why don't we just move on.

20 MR. FELOS: If the Court feels it's

21 collateral and not worth further mention

22 then let's move on, Your Honor.

23 THE COURT: The court reporter has

24 asked for us to give her a half a minute to

25 get out of that mode and get into the




465



1 current mode. Let's do that.

2 (Thereupon, there was a brief pause.)

3 THE COURT: You all set?

4 THE COURT REPORTER: Yes, sir.

5 THE COURT: Okay. Ms. Anderson, you

6 may proceed.

7 BY MS. ANDERSON:

8 Q. Dr. Greer, during the break did you

9 review your notes some more?

10 A. No.

11 Q. Okay. Now, I asked you, I think, how

12 many patients were diagnosed as being in PVS you

13 are presently the attending physician for and you

14 said none, correct?

15 A. That's right.

16 Q. How many patients do you have in a

17 long-term care facility?

18 A. I'm not the responsible physician for a

19 patient in long-term care facility. I will go as

20 a consultant from time-to-time in patients

21 brought from a long-term care facility where

22 there's a concern about a change in the patient's

23 neurologic status. The patient who may have

24 increasing weakness or seizure or something of

25 this nature.




466



1 Q. Patients present at Shands in an acute

2 state; do they not?

3 A. Often.

4 Q. And a stroke team, if it's a stroke

5 involved, responds to that crisis, correct?

6 A. After the emergency room physician sees

7 the patient the neurologist is called.

8 Q. And then once the patient stabilizes

9 and reaches maximum medical improvement the

10 patient is then put in the care of other

11 physicians, correct?

12 A. After the patient is treated for the

13 acute problem that happens to be a stroke, and

14 after the patient is being treated with whatever

15 is necessary to be treated after the patient then

16 stabilizes there is no progression and hopefully

17 an improvement with regard to the patient's

18 status, the patient is characteristically

19 discharged either to go home or to another type

20 of facility.

21 Q. A long-term care facility?

22 A. It depends upon the patient. By and

23 large most of our patients go home afterward.

24 Q. And those patients who do not go home

25 are sent to a long-term care facility such as a




467



1 nursing home or a rehabilitation center, correct?

2 A. Usually initially they'll go to

3 rehabilitation facility so everybody could be

4 taught on how to help the patient. Then the

5 patient may then go home. Or if the patient has

6 gross impairment to the extent the patient needs

7 continual care and observation then it's a

8 long-term facility.

9 Q. And in rehabilitation, those physicians

10 and those therapists take the patient's deficits,

11 brain deficits into account and teach the patient

12 new ways of living, correct?

13 A. The patient is taught that while

14 in-housed by our rehabilitation staff at the same

15 time under the guidance of me, if I'm the

16 attending physician, and then this continues with

17 a rehabilitation facility. If the patient can't

18 walk, the patient is taught how to stand and

19 stabilize the trunk.

20 The patients are given some orthotic

21 device whether it be a walker or a cane. These

22 are things that evolve after the acute process

23 and will continue in the rehabilitation facility.

24 Q. And so if a patient, for example, is

25 aphasic, that is cannot speak, the patient is




468



1 taught alternative means of communication; would

2 you not agree with that?

3 A. In an aphasic patient where the problem

4 is not speech, it's language in where the patient

5 may have an inability to understand or an

6 inability to provide information, in that type of

7 a situation the hope is, as most often happens,

8 is that the patient will recover function to an

9 extent.

10 And the way of helping such an

11 individual is to be patient, be with the patient,

12 continue to stimulate the patient, and by and

13 large the patient who has aphasia, which is a

14 left hemisphere problem, still has an intact

15 right hemisphere which means that the patient can

16 understand gestures and facial expression and be

17 able to react in that way. And that's the way we

18 try to help a patient who has aphasia to

19 communicate.

20 Q. And there are a variety of devices such

21 as rehabilitation, physicians and therapists use

22 such as a communication board, correct?

23 A. In a circumstance of a patient who has

24 a problem with regard to speaking the patient who

25 has a stroke in the brain stem and cannot




469



1 enunciate, if they have a problem with their

2 hands and they cannot write, yes, one uses the

3 communication board where the patient will nod

4 with a particular letter and then spell out a

5 word. It's not the most common approach that is

6 used.

7 Q. Perhaps the most famous example, I

8 suppose, the best known example of adaptive

9 communicating skills would be Stephen Hawkings,

10 the great British physicist; would you not agree?

11 A. I'm afraid I don't know the details of

12 that gentleman's problem.

13 Q. You ever seen him on television?

14 A. No.

15 Q. Very severely disabled in a wheelchair?

16 A. No, I'm afraid not.

17 Q. If a patient cannot see after a brain

18 injury or is partially blind the rehab specialist

19 likewise has to adapt ways to that particular

20 patient to help that particular patient learn to

21 live with that disability, correct?

22 A. Once again, it depends upon how long

23 the blindness, if you're talking about that

24 particular topic, exists. If the patient who

25 comes in with an acute blindness, whether it be




470



1 multiple sclerosis or a stroke in the occipital

2 lobe, after the patient stabilizes then there are

3 many people and many services that are involved

4 with helping the patient.

5 If the individual's brain is otherwise

6 well and the patient can see, we teach the

7 patient house how to use Braille. The patient

8 still can communicate. So it depends upon the

9 degree of the disability.

10 Q. Exactly. What is the state of Terri's

11 vision?

12 A. From my perspective, the patient Terri,

13 that is, Ms. Schiavo, does have an anterior brain

14 function with regard to reaction to light

15 stimulus, the pupils do react. And then there's

16 an inconstancy with regard to her following large

17 objects like a big balloon. Sometimes she can

18 follow it.

19 Is's not a persistently evident process

20 in terms of her visual function. When I checked

21 her she had no reaction to stimulation on the

22 side of her vision or in front, nor did she have

23 an ability to follow an optical kinetic tape

24 where I passed a bunch of lines on a tape across

25 the vision.




471



1 This is what you and I might do if we

2 are riding in a car and looking at the trees as

3 they go by. That's the way the brain ordinarily

4 will pick up visual images and you can perceive

5 it.

6 But I did see with the balloon trick

7 that from time to time the patient did follow it,

8 but that is, again, the issue of consistency. Is

9 it there all the time? The answer is no.

10 Q. And how far away did you hold the

11 object, the balloon?

12 A. I didn't use the balloon object. The

13 others who used the balloon object included

14 Dr. Cranford and Dr. Hammesfahr. And I

15 believe -- I'm blocking on the name of the

16 radiologist who may have used it.

17 Q. Dr. Maxfield?

18 A. Yes. Now, I used, as I say, my finger

19 as well as the optical kinetic tape. This is

20 what is important to the determine the perception

21 of responses from periphery and how the patient

22 will follow.

23 Q. Now, when you examined Terri you

24 examined her at Hospice, correct?

25 A. I examined her what, ma'am?




472



1 Q. At Hospice? While she was at Hospice.

2 A. Yes.

3 Q. And did you speak with her husband?

4 A. Yes, I briefly spoke with her husband

5 after I had done my examination.

6 Q. Was he present during the examination?

7 A. No, the nurses were.

8 Q. Did you call him on the telephone?

9 A. I didn't speak to him. Mr. Felos might

10 have. Mr. Felos made arrangements for me to see

11 the patient. I came early and the nurses

12 assisted me in doing my examination.

13 Q. I thought you just said you spoke with

14 the husband?

15 A. After I had completed the examination.

16 Q. That's what I'm asking you.

17 A. Yes.

18 Q. Did you call him?

19 A. Mr. Felos might have. I didn't call

20 him.

21 Q. Did you speak to him in person?

22 A. Yes, in the presence of Mr. Felos.

23 Q. At Hospice?

24 A. Yes.

25 Q. Is that the only time you've spoken




473



1 with Mr. Schiavo?

2 A. Yes.

3 Q. And how long did that conversation

4 last?

5 A. I shouldn't think it lasted more than

6 10 minutes or so.

7 Q. Did you take a history from him?

8 A. No. The history that I had was in

9 response just to general questions, his visiting.

10 But by and large, I had the history that was

11 available to me from Mr. Felos and I had asked

12 the nurses a great deal of information about her

13 current status or at least while I had seen it.

14 Q. Right. So the history that you relied

15 on came from Mr. Felos?

16 A. No, it came from the records and it

17 came from the nursing staff.

18 Q. The information that you received from

19 Mr. Felos was confined to medical records?

20 A. That which I described before it was,

21 in essence, the medical records and then there

22 was certain records that reflected Judge Greer

23 making commentary of the physicians who had made

24 commentary.

25 Q. So he sent you the summaries. I think




474



1 you said he sent the admission and discharge

2 summary?

3 A. No, the entire records, I believe. I

4 did review a very extensive pile of records, for

5 example, in Palm Garden when she was there

6 between 1994 at least through 1997. I reviewed

7 all the nursing notes.

8 Q. Can you show the Court with your hands

9 how high the stack of records was that you

10 reviewed?

11 A. Not only that, but if I can get the

12 person who drove me to bring the car around the

13 front I could bring you a suitcase full of

14 records. That high (indicating.)

15 Q. Probably, what?

16 A. Four feet or three feet.

17 Q. That's about two-and-a-half to me.

18 Three feet of records?

19 A. Yes. Three to four feet of records.

20 Q. And they started in 1990?

21 A. This was the Humana Hospital Northside

22 records beginning on 2/25/90.

23 Q. And they continued through Hospice,

24 correct?

25 A. Yes.




475



1 Q. Was the history of this patient as

2 reflected in those records supplemented in any

3 way by any other medical records?

4 A. Just that which was contained in the

5 records. I did review the evaluations of

6 Dr. Gambone, Dr. Barnhill's comment, Dr. Karp's

7 comment. A portion of the report of Ellen

8 Delante (phonetic) Diane Nomez.

9 The affidavit of Dr. Hammesfahr. The

10 affidavit of Dr. Maxfield. These are things

11 which I've read in addition, as I've stated, to

12 the reports of those three physicians who had

13 examined the patient, actually four. Three of

14 whom had their video performed.

15 Q. Anything else?

16 A. No. All the other material reflected

17 my research review and there are a bunch,

18 obviously, of laboratory studies that have been

19 done which were sent to me. Dr. Gambone had

20 requested studies, evidentially there were

21 additional tests that had been done in September

22 of 2002 which I have reviewed.

23 Q. So you read those reports?

24 A. Yes.

25 Q. Did you look at the films themselves




476



1 for the CT scans?

2 A. I saw the reports. I don't remember

3 seeing the actual scans, but those are the scans

4 that you're talking about?

5 Q. Right. Did you look at the tracings

6 for the EEG?

7 A. I saw the report of that as well.

8 Q. Did you see the tracings for the EEG?

9 A. No.

10 Q. Typically would you rely on the

11 neuroradiologist's interpretation of a scan?

12 A. A neuroradiologist's responsibility is

13 to make a report of the scan. I have a habit of

14 evaluating scans on most of my patients who I see

15 and the official report will come from the

16 radiologist if there's a difference of opinion or

17 I need some clarification or something of this

18 nature, then I'll speak to the neuroradiologist.

19 Q. That's the nature of the collegial

20 relationship, correct?

21 A. Yes. In an academic environment this

22 is particularly the case because this is a

23 learning place. And I go down with the students

24 and the residents and we look at it and if

25 there's a question the radiologist is nearby and




477



1 we talk about it.

2 Q. About how many hours a week do you

3 spend in teaching?

4 MR. FELOS: Your Honor, that's been

5 asked and answered.

6 MS. ANDERSON: Actually it was asked.

7 It wasn't answered.

8 THE WITNESS: My teaching activity --

9 THE COURT: Let's see. He did not give

10 a number.

11 MS. ANDERSON: Right, that's the number

12 I'm looking for.

13 THE COURT: I sense that he couldn't

14 because everything is commingled, but let's

15 see if he can come up with a number now.

16 THE WITNESS: The Judge is correct,

17 it's commingled. So if I'm going to be

18 teaching a student involved with a patient

19 care where I'm the senior attending having

20 to do with the patient I will speak to the

21 patient. The student will listen to me talk

22 and that's an educational experience for the

23 student.

24 We're talking about not just the

25 practice of medicine from the scientific




478



1 perspective, but the art of medicine is

2 having the patient be helped by what I'm

3 saying, at least we hope he's being helped

4 or she is, and the student understands the

5 principle. So that's teaching at the same

6 time I'm rendering patient care.

7 BY MS. ANDERSON:

8 Q. So we have at least three different

9 activities. We have pure teaching. We have

10 clinical contact with patients without any

11 teaching involved and then we would have a

12 combination of the two, correct?

13 A. Well, there are other types of teaching

14 that goes on; the students make a report. I

15 review the report. I give the student some

16 feedback. Talk to the student. The student will

17 come and speak to me to get clarification on

18 disease X, Y or Z or what I meant by that.

19 These are things that happened all the

20 time. I can't break it down other than to state

21 it is an ongoing activity where I come in the

22 office before seven and leave six-ish or so.

23 Q. Okay. And do you do that five days a

24 week?

25 A. Actually I'm in on Saturdays and




479



1 Sundays also in the morning, particularly. I'm

2 on services this month so I go in and make rounds

3 on Saturdays and Sundays as well as do office

4 work like dictation.

5 Q. And, in addition, you work on cases

6 like this, for example, that takes time away from

7 your duties at the university?

8 A. Actually this is university time.

9 Q. Is it?

10 A. Yes. This is a case where the

11 university is billing Mr. Felos for my time.

12 Q. I see. And you also have a P.A., don't

13 you?

14 A. No, I have a different corporation.

15 It's not a P.A.

16 Q. Well, don't you have a corporation and

17 a medical practice P.A.?

18 A. No. I don't have a medical practice

19 P.A. My medical practice in terms of activity is

20 all undertaken in the Shands Hospital and its

21 clinic. I do see patients from time to time or

22 if an attorney or some other person wishes me to

23 evaluate. And I will travel ten times a year,

24 for example, after getting permission to do what

25 is called outside work.




480



1 Q. And the university owns that income

2 stream?

3 A. No. When I get permission to do

4 outside work and in those instances where I

5 review records or give an opinion after I

6 evaluate a patient, that permission is given and

7 I can keep that money.

8 Q. And is your corporation called Medical

9 and Literary Professional Consultants, Inc. that

10 bills that type of time?

11 A. Yes.

12 Q. About how much money did you make last

13 year?

14 A. With the Court's permission I decline

15 to answer that. That's an invasion of privacy.

16 I will tell you that on all this activity it

17 constitutes about 25 percent of my total income.

18 Q. Your total income?

19 A. Yes.

20 Q. So about 25 percent of your time, then,

21 is spent on non-university billed activities?

22 A. I can't break it down to time activity

23 because I do this work particularly when I get

24 permission to go outside activity at night and on

25 weekends.




481



1 Q. How many other cases right now are you

2 getting outside income on or expect to get

3 outside income on?

4 A. Well, on the average it's about five

5 cases or so per month where I will get permission

6 and do it. These may just be reviews of records

7 and give an opinion. Or, as I say, about 10

8 times a year I may travel someplace and evaluate

9 a patient, which is more extensive. But we're

10 talking about, you know, maybe one hour or it may

11 be more than 10 hours.

12 Q. Sometimes it involves deposition,

13 doesn't it?

14 A. Yes. It may even involve a court

15 appearance. I haven't done it that frequently.

16 Only one time this year have I been to court, but

17 that was a case for the university. It wasn't a

18 case involving a patient where I've done outside

19 employment activity.

20 Q. Did you know that the secretary of

21 state's database shows Melvin Greer, M.D. P.A. as

22 active?

23 A. Well, it shouldn't. That was

24 discontinued back in 1988.

25 Q. How is it that this is a




482



1 university-billed activity?

2 A. Because this was a case that I felt

3 and, as I do this often enough, should be under

4 the purview of the university where I'm

5 representing the university as a professor of

6 neurology.

7 Q. How is that to be distinguished then

8 from those other cases in which you evaluate a

9 case or testify or appear in court?

10 A. I don't use my title. I'm not

11 presenting information on these other cases where

12 I'm using my academic position to lend credence

13 to my opinions necessarily.

14 I'm just another doctor who does have

15 neurological credentials. That's the way I

16 construe it in my own mind. Now, could it have

17 been private? Yes, it could have been, but this

18 one is not.

19 Q. Have you used Terri's case as a

20 teaching tool?

21 A. No.

22 Q. Do you intend to?

23 A. No. However, I will say that as a

24 consequence of my reading material from time to

25 time information is gleaned where in the course




483



1 of my discussion with students and residents on a

2 different case I may have remembered reading

3 something about a particular issue and I'll bring

4 out some of my reading knowledge. For example,

5 the hyperbaric oxygen and the issue of using it

6 in patients with bends when we have a patient

7 with that problem.

8 Q. Now, when you conducted a literature

9 search, did you do that before you went to

10 examine Terri?

11 A. This is an ongoing type of issue. I

12 have my own files that date back to the time I

13 was first a resident and actually a student.

14 That's many years ago. And to supplement this I

15 may ask our library, the health center library,

16 to give me a listing of circumstances where X, Y

17 or Z condition is being discussed and they will

18 give me a listing. I will then pick out some

19 articles I want to photocopy and take it from

20 there.

21 Q. Are you computer literate?

22 A. No.

23 Q. Are you resisting it?

24 A. Yes.

25 Q. Are you proud of that?




484



1 A. No.

2 Q. Do you give the librarian the search

3 parameters?

4 A. Yes, over the past five years or 10

5 years or something like this giving me all the

6 articles that are in English on topic A, B, C and

7 D.

8 Q. Do you review the abstract before you

9 go to the articles?

10 A. Yes, but then again, as I say, I have

11 my own catalog of articles that I have extracted

12 and I do subscribe to the journals. And we have

13 our own department library where I can easily

14 look things up that I have identified prior.

15 Q. For patients who are neurology

16 patients, primarily neurology patients at Shands,

17 is some member of your department going to be the

18 attending physician, at least in that acute

19 phase?

20 A. If the patient is admitted to the

21 hospital, yes, one of our faculty is the senior

22 attending responsible.

23 Q. And what role would you play?

24 A. It depends. If it's a patient who I

25 had seen before where I knew the patient's




485



1 problem I would go up and speak to the resident

2 and say hello to the patient. And say to Dr. X

3 who is the attending responsible I'll keep track

4 of what's going on, but he's the guy or she is

5 the person who is going to direct traffic.

6 Q. Over the course of the last 12 months,

7 how many patients have you been the attending

8 physician for?

9 A. Well, I'm on service approximately

10 three-and-a-half months a year. We admit

11 patients on the average of let's say one a day.

12 Just calculate that.

13 Q. So when you say you're on service that

14 means that you would be on-call to be the

15 attendee if someone came in with a neuro problem?

16 A. That's right, or I'm also the senior

17 person who is involved with consultation.

18 Q. Right.

19 A. So during that period of time the lady

20 in obstetrics or a man in surgery is the man that

21 I would see where there's a neurological concern.

22 That's in addition, of course, to my activity in

23 clinic which goes on, as I've mentioned, three

24 days a week in addition also to my going to Lake

25 Butler to evaluate prisoners twice a month.




486



1 Q. In addition to your contract with the

2 State of Florida, do you also have a contract

3 with any insurance companies to do any

4 neurological reviews?

5 A. No.

6 Q. Now, what time of day does your

7 examination of Terri begin?

8 A. In the middle of the day. Noon.

9 Q. Before lunch?

10 A. Well, that's a tricky thing because I

11 don't eat lunch. It's a matter of sometime

12 around noon.

13 Q. When did it conclude?

14 A. I would suspect about 12:45. About 45

15 minutes was the total sum and substance of my

16 hands-on activity. Of course, that was

17 supplemented with what the nurses were telling me

18 where I had them involved also when I evaluated

19 the patient.

20 Q. So there were two nurses in the room

21 with you?

22 A. There were two nurses. One is a senior

23 nurse.

24 Q. What's her name?

25 A. I'm sorry?




487



1 Q. What's her name? You don't remember --

2 A. Well, I've got it written down.

3 Q. You can't remember without those notes?

4 A. Well, I guess not.

5 Q. Okay. You take magnesium --

6 A. Darlene -- I'm sorry, ma'am?

7 Q. Are you taking a dose of magnesium

8 or --

9 A. Magnesium?

10 Q. Yes.

11 A. Why would one take magnesium?

12 Q. I gather you don't prescribe it either?

13 A. Well, the only time I might prescribe

14 magnesium is if I had a pregnant lady who was

15 eclampsia and I had to reduce her blood pressure

16 to help prevent seizures. That's when one uses

17 magnesium sulphate. It has no other value or any

18 other purpose.

19 Darlene and Dawn were the two nursing

20 staff people.

21 Q. Were they present during the entire 45

22 minutes?

23 A. I don't know. They may have wandered

24 out from time-to-time to assume other

25 responsibilities. They are the folks, however,




488



1 who did supply me with information as well of

2 Ms. Schiavo's current status.

3 Q. What did they tell you?

4 A. That is included in my report where I

5 do describe what she has to eat, how she responds

6 to them and so forth.

7 Would you like me to read it?

8 Q. Read the report?

9 A. Yes.

10 Q. No, I don't want you to read the

11 report. Do you have an independent recollection

12 of what Darlene and Dawn told you?

13 A. That which is in the report encompasses

14 that, but I remember asking things specifically

15 about spontaneous activity. And they mentioned

16 that she may laugh. Nobody is in the room, but

17 she will laugh for a period of time and startle

18 everybody.

19 They also described something which I

20 recognize and that is that she does have a type

21 of auditory sensitivity. So if one does

22 something that makes a sound she will startle.

23 This is something that I observed.

24 I asked them about her bladder and

25 bowel function. I asked them about temperature.




489



1 I asked about blood pressure and things of that

2 nature.

3 Q. Did you observe the startled reflex?

4 A. Yes.

5 Q. And that's because you clapped your

6 hands?

7 A. Yes.

8 Q. Did you observe her laughing?

9 A. I heard her make sounds, so I don't

10 remember whether laughter was one of them, but I

11 heard her make sounds.

12 Q. What were you doing when she made those

13 sounds?

14 A. Nothing.

15 Q. Where were you? In the room?

16 A. Right adjacent to her.

17 Q. You didn't have your hands on her or

18 asking her to do anything?

19 A. No.

20 Q. Were you asking her to speak or

21 anything?

22 A. No, I didn't ask her to speak. I did

23 talk as I do to all my patients, even those who

24 do have major problems such as she has to see

25 whether the tone of the voice had any soothing




490



1 influence. And I didn't recognize any change

2 that existed when I watched her face as I spoke

3 to her.

4 Often I will sing to my patients as

5 well to see what kind of reaction will occur in

6 those circumstances.

7 Q. Did you sing to Terri?

8 A. I don't remember. I didn't put it

9 down, I don't believe.

10 Q. Typically what do you sing when you

11 sing to your patients?

12 A. Well, I'm sorry to bring some levity

13 into this, but I sing old songs. And one of my

14 nurses who was asked by an 80-year-old patient

15 whether Dr. Greer was a young doctor my nurse

16 said, Well, I don't know, but his favorite song

17 is Come to Me My Melancholy Baby. That's the

18 type of song that I would sing.

19 Q. All standards from the '20s and '30s?

20 A. That's right.

21 Q. But you're not sure if you sang to her?

22 A. That's correct.

23 Q. Did you play music for her?

24 A. I would have sung, but I don't have any

25 musical instruments that I would have played.




491



1 Q. Did she appear sleepy when you were

2 there?

3 A. No. She was awake and much as I saw in

4 the videos that were sent to me with regard to

5 the assessments undertaken by other physicians

6 her eyes were open, blinking repetitively, moving

7 the eyes about, mouth open, making lip movements

8 from time to time, keeping head to one side

9 although it was also able to go to the other

10 side. These were observations that I made and

11 they were affirmed by the subsequent videos that

12 showed her picture.

13 Q. Now, when did you apply noxious stimuli

14 during your exam?

15 A. Noxious stimuli were applied during the

16 time that I was doing my sensory component of the

17 examination. A noxious stimulus, for example,

18 for Terri or Ms. Schiavo was when I took a tuning

19 fork which is made of metal and I pressed the

20 cold tuning fork on her skin and she reacted to

21 it. That's a noxious stimulus.

22 Q. And did you do that in the first part

23 of the exam?

24 A. I can't tell you. Usually it's not the

25 very first part.




492



1 Q. Typically when you do an exam like

2 this, do you proceed in a certain order?

3 A. Yes. If there is a patient who is

4 present and has a localized process like the

5 right leg or the left arm rather than to see the

6 patient with the rest of the examination I will

7 go right to the area of major involvement.

8 A patient like Ms. Schiavo who has

9 diffuse profound deficits throughout I will start

10 cranial nerves and usually work my way down,

11 which means I will look at the eyes, the pupil

12 area reaction. I will look to the back of the

13 eye with my opthomoscope and then go down. I

14 will listen to her chest to be sure that she

15 doesn't have evidence of pneumonia or congestion.

16 I will feel her belly and look at the gastrostomy

17 site. All of these things are done.

18 Q. And did you examine her legs?

19 A. The same thing; I would look at the

20 legs first. I would palpate the leg to recognize

21 the tone. I would move the leg.

22 Q. My question is not what would you do,

23 but did you do it in this case?

24 A. Yes. This is what I do. There's no

25 reason why I wouldn't have done it in this case.




493



1 Q. So while you were testing her cranial

2 nerves in her head -- you start with the head and

3 basically work down?

4 A. Yes.

5 Q. While you were testing her cranial

6 nerves in her head, that's when you applied the

7 tuning fork?

8 A. That was the component of sensory

9 function in the face.

10 Q. Is that a yes?

11 A. That's a yes.

12 Q. I mean, in other words, you didn't go

13 back to her face?

14 A. I don't believe I did that, no.

15 Q. So the noxious stimulus was applied

16 early on in your examination?

17 A. Yes, just as the hand clapping was

18 applied early on also.

19 Q. And you said she reacted to the tuning

20 fork on her face?

21 A. She reacted to the cold stimulus.

22 Q. She flinched?

23 A. She made a movement, yes.

24 Q. Did that have any significance for you

25 as a neurologist?




494



1 A. It implied that she did react to a

2 stimulus giving me a reflexive response, yes.

3 Q. Did you notice whether Terri was

4 perspiring?

5 A. No, I didn't notice any change that

6 would apply to me that she was perspiring. She

7 had some acne on her, but nothing in terms of

8 perspiration.

9 The feel of her skin which I palpated

10 had the normal features of autonomic function

11 implying that there was insensible perspiration.

12 In other words, you could feel the way she -- her

13 skin felt.

14 Q. Did you see any on her face?

15 A. Insensible perspiration?

16 Q. Yes.

17 A. Yes. She has a similar type of

18 softness that implied that there was sweating

19 that was going on at a low level.

20 Q. During the examination did you notice

21 any cyanosis?

22 A. No, she had no blueness or other

23 features of cyanosis.

24 Q. Did you look at her toes?

25 A. Yes, and she had one toe missing.




495



1 Q. Now, when you looked at the videotape

2 of Dr. Hammesfahr's examination did you notice

3 whether she appeared to have quite a bit of sweat

4 on her face?

5 A. His was a rather extensive type of

6 assessment. I don't remember. It might have

7 been that she had increasing sweat.

8 Q. I'm asking you what your memory is of

9 the tape?

10 A. I don't remember it.

11 Q. Okay. Did you notice whether she was

12 cyanotic in her feet or her toes?

13 A. She had acrocyanosis which means a

14 coloration that implies a lack of mobility. It

15 does not have any significance.

16 Q. And what -- how could you tell by

17 looking that she has acrocyanosis?

18 A. Adjusting the limb posture will make

19 the acrocyanosis disappear.

20 Q. So you can tell by the color?

21 A. Well, the color is still a duskiness

22 and it implies that the limb is maintained in a

23 posture like that so the return of blood flow

24 from the limb is not optimal for change in the

25 color. And moving the limb will make that go




496



1 away. It's not an uncommon problem, just

2 reflects a lack of mobility.

3 Q. Did you make a note of that?

4 A. No.

5 Q. Do you have an independent recollection

6 that that's what you observed?

7 A. Yes.

8 Q. Did you move her legs?

9 A. Yes.

10 Q. Were her legs rigid?

11 A. They were held in extension. There was

12 rigidity and spasticity.

13 Q. Was there -- was her knee rigid?

14 A. Her knee was kept in extension, yes.

15 Q. Did you pick her leg up?

16 A. Yes, I picked the leg up. I moved the

17 knee. I moved the foot up. I moved it lateral

18 and a menial manner.

19 Q. When you picked her leg up tell me

20 where you put your hand or your hands?

21 A. My hand is kept behind the leg.

22 Q. Okay. So you put your hands under the

23 backs of her thighs?

24 A. Yes, and hold the other portion of the

25 leg as I attempted to move the knee.




497



1 Q. I didn't follow you on that.

2 A. I held her in the thigh and the distal,

3 that is the lower limb portion, and moved the leg

4 to see what the knee would do and I felt the

5 reflex response.

6 Q. So the knee was rigid?

7 A. The knee was extended and I was able to

8 move it. And then the leg moved up as one

9 typically sees in a patient who has increased

10 reflex.

11 Q. Did you observe the portion of

12 Dr. Hammesfahr's exam where he examined her legs?

13 A. Yes.

14 Q. Did you observe that he gave her a

15 command to press her lower leg against his hand?

16 A. He gave lots of commands. I don't

17 remember that one in particular.

18 Q. I see. Now, did Terri smile at you?

19 A. Terri had a smile intermittently

20 throughout the examination just as she looked at

21 me, looked away from me, looked up, looked to the

22 side. There was no consistent reaction

23 regardless of whether I stood on her right side

24 or her left side.

25 Q. And did you speak with her in a




498



1 soothing tone?

2 A. Yes.

3 Q. Did you speak to her in a harsh tone?

4 A. No.

5 Q. Do you know how acute her hearing is?

6 A. The fact that she is able to respond to

7 the clap implies that her hearing is intact.

8 Q. Did you pinch her Achilles tendon?

9 A. Did I pinch her Achilles tendon?

10 Q. Yes.

11 A. No.

12 Q. Did you have your reflex hammer with

13 you?

14 A. Yes.

15 Q. Did you check her tendon reflexes?

16 A. Yes.

17 Q. Are they intact?

18 A. Those areas where I was able to elicit

19 a tendon reflex where there was not severe

20 contractures that precluded, yes, and there were

21 increased reflexes.

22 Q. Did you attempt to release any of her

23 contractures while you were there?

24 A. As I said, I moved her leg. I can't

25 eliminate a contracture. That's a fixed process




499



1 by and large with regard to the tendon and the

2 other tissues of the joint.

3 Q. And are contractures permanent?

4 A. By and large once a contracture forms

5 and it's been there for a while it is permanent.

6 Q. So, is it important to the patient to

7 avoid the formation of contractures?

8 A. If it's at all possible. Most commonly

9 with severe insult such as Ms. Schiavo has,

10 contractures are inevitable and it's not

11 something that can be relieved with ongoing

12 physical therapy. It's something that is a

13 component of the spasticity and the rigidity that

14 reflects what the brain discharge is doing.

15 Q. How long does it take contractures to

16 develop?

17 A. It depends upon the severity of the

18 insult. A patient that comes in with an acute

19 large stroke, the patient will have tone that

20 will emerge over a period of weeks and then the

21 limb will assume a contracted posture within

22 months.

23 Q. Within months?

24 A. Within months one will get the evidence

25 of contractures in this hypothetical patient with




500



1 a large stroke.

2 Q. Would the combination of sweating,

3 facial rashes and cyanosis in the extremities

4 alert you as a neurologist that there might be a

5 spinal cord involvement?

6 A. No.

7 Q. It would not?

8 A. Under the circumstances of the rest of

9 what we're talking about.

10 Q. I'm asking you a more general question.

11 A. I see. In a hypothetical patient, if

12 the patients has, what, sweating on the face?

13 Q. Sweating on the face, cyanosis in the

14 extremity and facial rashes?

15 A. No. Why should I think about a spinal

16 cord problem?

17 Q. You've never seen any literature that

18 suggests that that cluster of symptoms is

19 indicative of a spinal cord injury?

20 A. That's not something that I would teach

21 our students as being a primary process of a

22 patient who has an acute spinal cord injury.

23 There are autonomic discharges that are

24 recognized and in such a patient you will see as

25 a manifestation of a paraplegic or quadriplegia




501



1 other elements that includes sweating, and

2 changes with regard to the patient having

3 involuntary shivering, problems with regard to

4 the heart rate and so forth. These are elements

5 of an autonomic discharge that may be seen in a

6 spinal cord injury.

7 Q. Now, did you palpate her neck?

8 A. Yes.

9 Q. Did you notice anything unusual?

10 A. No, just that she maintained the head

11 usually in one direction or the other, but I was

12 able to correct it. There was no evidence of any

13 deformity.

14 Q. Did her neck seem rigid to you?

15 A. Everything was rigid. Ms. Schiavo was

16 stiff. This is part of the features of what she

17 had. This is a decerebrate posture. Her head

18 has a tendency of going backwards. That's called

19 opisthotonus. Again, it's not the bone. It's

20 the muscle that goes in this position as a

21 consequence of severe brain injury.

22 Q. And you're telling the Court that

23 physical therapy would be of no benefit?

24 A. That's right. Physical therapy is not

25 a benefit in this circumstance.




502



1 Q. Would it have been a benefit in the

2 past?

3 A. No, the only thing that would have been

4 helpful is if she had a different problem which

5 led, unfortunately, to her being admitted in this

6 terrible state. No, the die was cast when she

7 was found in this anoxic ischemic state and the

8 evolution of the problem was going to be coming.

9 Her doctors did a great job in being able to

10 maintain adequate nutrition and control infection

11 and so forth, but there would be no difference in

12 terms of the outcome.

13 Q. So you're saying that therapy would

14 have had zero effect on her over the years?

15 A. That's right.

16 Q. But this is an inevitable progression?

17 A. Yes, this is an inevitable progression.

18 Q. Is she going to inevitably progress

19 into a more contracted state?

20 A. Well, she's pretty well contracted

21 right now.

22 Q. When do you think that would have

23 occurred?

24 A. I'm sorry?

25 Q. When do you think that would have




503



1 occurred?

2 A. Over the course of her first year or

3 two.

4 Q. So she would have been in The state of

5 contracture that she is in today by two years out

6 from the injury?

7 A. No, the contracture continues to become

8 more prominent, but she was in decerebrate

9 positioning. I mean, the contractures were

10 continuing to emerge as a consequence of the

11 joints being maintained and the posturing. And

12 regardless of what one does to try to extend the

13 joint, the contracture will occur because of the

14 input from the brain.

15 Q. And if you saw Dr. Hammesfahr extend

16 her left arm over the course of 35 minutes, would

17 that cause you to change that testimony?

18 A. No, I saw him do that. That's

19 something that can be done just as I moved the

20 leg and watched it go. That's a reflex response.

21 One can't do that. The contracture is still

22 there. It's something that can be overcome. It

23 doesn't change the course of what's going on,

24 however.

25 Q. And did her arms spring back into the




504



1 contracted position?

2 A. They came back into this posture, yes.

3 Q. It did?

4 A. I don't remember the sequence, but this

5 is what I recognize when I extended her arm and

6 her arm came back.

7 Q. Now, are you very familiar with her

8 medical records that Mr. Felos gave to you?

9 A. You can ask any specific question and

10 if I don't have the detail, I could try to state

11 otherwise. I will state otherwise.

12 Q. Is there any reason you chose not to

13 have your examination videotaped?

14 A. No. I told him that I would be able to

15 evaluate the patient and he said okay, we'll do

16 it when you're in the neighborhood. I was in

17 Tampa at the time and came across and that was

18 it.

19 Q. Just do it on a spur of the moment

20 thing? Just coincided with your travel schedule?

21 A. It coincided, yes.

22 Q. Now, in relying on the medical records

23 you are relying on the competency and

24 thoroughness of the physicians who are seeing

25 Terri over the years, correct?




505



1 A. All the health care providers that were

2 involved with her care, yes.

3 Q. And do you have any acquaintance with

4 any of her previous doctors?

5 A. Well, I know one of the doctors who had

6 seen her, but I guess this was after the fact.

7 That is Jim Barnhill.

8 Q. How do you know Dr. Barnhill?

9 A. Jim was one of our residents many years

10 ago.

11 Q. Any other physicians with whom you're

12 associated?

13 A. No. I just know them by name.

14 Q. I think I asked that question wrong. I

15 should have said, Are there any other physicians

16 in this case with whom you are acquainted?

17 A. No. I'm acquainted with Ron Cranford.

18 Q. And how is that?

19 A. Well, I was president of the Academy of

20 Neurology and Ron was one of the members and he

21 was involved with the issue of persistent

22 vegetative state, as I remember, where he was in

23 a committee member or a chairman on a committee

24 that was investigating, understanding, discussing

25 these issues. That's as far as I remember Ron.




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1 Q. When you have a patient with a

2 traumatic brain injury do you typically order

3 rehabilitation therapy for them?

4 A. Yes, if it's a patient who can be

5 rehabilitated.

6 Q. Do you typically order physical

7 therapy?

8 A. Yes, if physical therapy is indicated.

9 Q. And do you typically order speech

10 therapy?

11 A. If speech therapy is indicated I might.

12 Q. And you're saying that you can tell

13 right upfront whether a patient would be

14 benefitted by therapy?

15 A. Yes. In a patient who has a severe

16 brain injury with gross evidence of impairment I

17 can recognize that there is a need of nursing

18 care which will provide gentle types of passive

19 movement to prevent evidence of maceration of

20 tissue, but in a patient who has a severe insult

21 to the brain from whatever cause I can make a

22 judgment decision and save the family a lot of

23 grief if not expense.

24 Q. By doing what?

25 A. By having an understanding of the




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1 overall problem and giving the patient a chance

2 in terms of a period of say a couple of months in

3 a rehabilitation facility to see what can be

4 done. But by and large, in a patient who has a

5 very profound deficit the hope is not great,

6 hence the matter of giving the patient a chance

7 to see what happens, but don't hold out hope

8 forever and ever because it's not going to help

9 the patient, unfortunately.

10 Q. Well, the fact is there have been

11 recorded instances of patients emerging from a

12 persistent vegetative state; have they not?

13 A. There have been instances perhaps of a

14 different diagnosis of a patient who did have a

15 problem which is diagnosed as a persistent

16 vegetative state as improved, yes.

17 Q. So it's not a foolproof diagnosis?

18 A. Nothing in medicine is foolproof. It's

19 a matter of a judgment decision.

20 Q. In fact, those clinical observations

21 are really quite subjective, aren't they?

22 A. No. I'm doing objective types of

23 testing in addition to observing the patient and

24 using my subjective knowledge with regard to what

25 the patient has.




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1 Q. Now, do you have any treatment

2 protocols that you used to help PVS patients get

3 better?

4 A. The persistent vegetative state patient

5 fits in the category that you just mentioned,

6 somebody who has an acute insult given a chance

7 for a few months and see what happens while you

8 balance the issues with regard to what the

9 deficit is and seeing what the responses are and

10 then making a decision about how valuable it is

11 to continue doing things to try to rehabilitate

12 the patient and make the patient independently

13 functional.

14 Q. You don't believe, do you, that a

15 patient in this condition lacks personhood?

16 A. I don't know what the word is that

17 you're talking about.

18 Q. It's a word that Dr. Cranford has used

19 in some of his writings; did you know that?

20 A. No.

21 Q. You are not suggesting, are you, that

22 she is not a person?

23 A. No.

24 Q. Are you familiar with the International

25 Working Parties Statement on persistent




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1 vegetative state?

2 A. I don't have anything written on the

3 International what, ma'am?

4 Q. Working Party.

5 A. No, ma'am, I'm not familiar with that.

6 Q. Have you ever visited the Royal

7 Hospital for Neuro Disability in London?

8 A. I don't remember whether I did visit

9 it. I've visited Queens Square, but I don't know

10 whether I went to the rehab facility or not.

11 Q. Let me ask you if you agree with this

12 statement: There are no tests which can confirm

13 whether the patient has any inner awareness?

14 A. Yes, there are no tests that will

15 determine whether the patient has an inner

16 awareness.

17 Q. Would you agree with this statement:

18 Assessments are best based on a series of

19 behavior patterns?

20 A. Would you mind repeating that, I missed

21 the first few words?

22 Q. Assessments are best based on a series

23 of behavioral patterns.

24 A. Assessment is best based on a series of

25 behavioral observations is what you're saying?




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1 Q. Yes.

2 A. Yes, in general.

3 Q. Would you agree with this statement:

4 The diagnosis of the cognitive status is time

5 dependent and cannot be made in a short single

6 assessment even by competent and experienced

7 clinicians?

8 A. No, I think that has to be qualified.

9 If you're dealing with somebody who is very

10 sleepy and not responsive then you cannot do

11 cognitive assessment at that time and get a valid

12 result.

13 If you have a patient who is on a

14 medication that obfuscates the patient, makes

15 them poorly functional, that's another reason why

16 you cannot do it, but a cognitive assessment is a

17 part and parcel of what I do with my patients who

18 present with any kind of neurological problem,

19 particularly that relating to changes in the

20 brain functioning. And I'll stand by my results.

21 I don't need to have the patient come back

22 repeatedly for purposes of testing memory or

23 abstract reasoning or language or what have you.

24 Q. With regard to diagnosing persistent

25 vegetative states given that qualifier would you