Terri Schiavo Trial Transcript October 11-22, 2002

pages 1-87
IN THE CIRCUIT COURT OF THE
SIXTH JUDICIAL CIRCUIT IN AND FOR
PINELLAS COUNTY, FLORIDA
PROBATE DIVISION


IN RE: THE GUARDIANSHIP OF File No.90-2908-
GD-003
THERESA MARIE SCHIAVO,
Incapacitated. APPEAL
___________________________________// VOLUME I

MICHAEL SCHIAVO, as Guardian of the
person of THERESA MARIE SCHIAVO,

Petitioner/Appellee,

vs.

ROBERT SCHINDLER and MARY SCHINDLER,

Respondents/Appellants.
________________________________________________//


BEFORE: The Honorable GEORGE W. GREER

PLACE: Pinellas County Courthouse
315 Court Street North
Clearwater, Florida

DATE: October 11, 2002

TIME: All day

REPORTED BY: TONYA H. MAGEE, RPR
Court Reporter and Notary
Public
Sixth Judicial Circuit

___________________________________________

HEARING
___________________________________________

Pages 1 - 143

ROBERT A. DEMPSTER & ASSOCIATES
OFFICIAL COURT REPORTERS
P.O. BOX 35
CLEARWATER, FLORIDA 34618-0035
(727) 443-0992






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



GEORGE J. FELOS, ESQUIRE
595 Main Street
Dunedin, Florida 34698

Attorney for the Petitioner/Appellee.





PATRICIA FIELDS ANDERSON, ESQUIRE
447 Third Avenue North, Suite 405
St. Petersburg, Florida 33701

Attorney for the Respondents/Appellants.







3
1 P R O C E E D I N G S

2 THE COURT: Morning everyone.

3 MS. ANDERSON: Morning, Your Honor.

4 THE COURT: We're here in the matter of

5 Teresa Marie Schiavo, 90-2908GD. We are here at

6 the direction of the Second District Court of

7 Appeals in its opinion handed down October 17,

8 2001.

9 Is the guardian ready to proceed?

10 MR. FELOS: Yes, we are, Your Honor. And

11 before the proceedings this morning, we had

12 scheduled on the Court's calendar a motion to

13 quash.

14 THE COURT: I understand that. Is Mr. and

15 Mrs. Schindler ready to proceed?

16 MS. ANDERSON: Indeed they are.

17 THE COURT: Mr. Felos, you filed a Motion to

18 Quash Subpoena of Mr. Schiavo?

19 MR. FELOS: Yes, Your Honor.

20 THE COURT: You faxed over a copy of that.

21 Here you are.

22 MR. FELOS: If it please the Court, both the

23 mandates of the Second District Court of Appeals

24 and this Court's case -- specifically this Court's

25 Case Management Order of February 25, 2002 and






4

1 Conference Order issued October 1 as a result of

2 our prehearing conference in August, all

3 contemplate and direct that the appointed have a

4 hearing limited in scope, in scope of witnesses to

5 the five doctors, two selected by each side and one

6 select by the Court, in lieu of the parties's

7 agreement. Which -- the court did have a

8 prehearing conference at the discretion of

9 Dr. Gambone to testify today.

10 Your Honor, this is not a retrial. It's a

11 rehearing on specific issues. This motion really

12 not only deals with Mr. Schiavo's testimony as

13 requested by the respondents, but I'm also informed

14 this morning that there are other witnesses,

15 specifically patients of Dr. Hammesfahr and another

16 physician which the respondents intend on calling.

17 It's our position that this hearing is limited

18 to five physicians and Dr. Gambone's testimony

19 today. The Second District, in its mandate, said

20 the Motion for Relief from Judgment alleges

21 evidence of a new treatment that could dramatically

22 improve Mrs. Schiavo's condition and allow her to

23 have cognitive function to the level of speech.

24 And they cited an affidavit of Dr. Webber and went

25 on to state "the Schindlers will need to support






5

1 similar evidence at the hearing to support their

2 claim for relief from the judgment." The Second

3 District said specifically "to control the scope of

4 the hearing, we're going to have the testimony of

5 these five selected doctors."

6 Your Honor, we've had this -- we've had these

7 proceedings back on remand for approximately a year

8 now from our -- from the first case management

9 order and the Court has scheduled a day of

10 testimony for each of the doctors. The Court

11 specifically ordered that at the conclusion of the

12 doctor's testimony we are going to have final

13 argument. It was not the intent of this Court, nor

14 is it the mandate of the Second District Court of

15 Appeal that this turn into an extended -- or more

16 extended proceeding.

17 If we are going to have additional witnesses,

18 Your Honor, I can call patients of Dr. Hammesfahr

19 who says this treatment is no good. I can call

20 witnesses -- I can call the Hospice staff who have

21 taken care of Terry the last two years. But that's

22 beyond the scope of this hearing.

23 And the Second District also said that after

24 you hear -- after the evidentiary hearing on the

25 question of is there new treatment that can help






6

1 her, after that evidentiary hearing is settled, the

2 Court has a number of options; it could affirm its

3 prior decision or it may then set a new trial. If

4 the Court finds this initial question is proved by

5 the respondents so the Court concludes there is

6 treatment available, then the Court might set it

7 for a new trial.

8 So I'd think it's extremely late in the game

9 here to say that -- it's against the rules set by

10 this Court and the Second District to say now we're

11 going to open this up open in this proceeding and

12 call all of the witnesses we would like. I don't

13 think that is what was intent of the order. So we

14 would ask that not only that the subpoena directed

15 to the petitioner be quashed, but the Court

16 reaffirm that the witnesses be limited to those

17 mentioned by the Court.

18 THE COURT: Thank you, Mr. Felos.

19 Ms. Anderson.

20 MS. ANDERSON: Morning, Your Honor, I have put

21 an exhibit book, it has copies of the exhibits and

22 exhibit lists for your convenience.

23 THE COURT: I did not move it there for any

24 other reason that just gave it away from blind

25 sight.






7

1 MS. ANDERSON: Your Honor, the Second District

2 is interested in her current medical condition. I

3 have a few questions for Mr. Schiavo related to

4 her current medical condition. That's all that I

5 want to show.

6 He has testified that he is responsible for

7 making all of her care decisions. And nowhere in

8 the Second District's opinion does it say you can't

9 call other witnesses that relate to these issues

10 they want to know about. They specifically say

11 one, two, three, four. That's all.

12 I'm not going into the whole rigmarole about

13 this marriage. I just have some questions that

14 relate to this number one issue, the current

15 medical condition. Also, Judge --

16 THE COURT: What can he add to what

17 Dr. Gambone would say?

18 MS. ANDERSON: He makes medical decisions for

19 her. He communicates with Hospice. My guess is

20 that Dr. Gambone is not aware of that. That would

21 help explain her condition. It would flush out the

22 picture of what her current medical condition is,

23 how we got to where we are.

24 THE COURT: Well, the reason the Court added

25 Dr. Gambone was for the very purpose of






8

1 establishing the current medical condition. I do

2 not want to get into a bunch of lay testimony and I

3 am not going to about her condition. The mandate

4 of the Second District speaks of taking the

5 testimony of the five doctors and limited

6 discovery. Limited hearing, that's their word, to

7 assess these things. And I think the doctors can

8 certainly tell me what her current medical

9 condition is.

10 Your doctors -- not your doctors. The doctors

11 you have selected, I know, have examined her. I

12 don't know for sure if the others have. And

13 Dr. Gambone has examined her. I think that's the

14 relevant testimony regarding her current medical

15 condition.

16 MS. ANDERSON: He has, Your Honor. And I'm

17 telling you. I will make a proffer, if you want.

18 But I am telling you that there is only some

19 information that Michael Schiavo knows about her

20 current medical condition. Don't prejudge this

21 issue, Judge. I am not going off the reservations

22 with my questions today.

23 THE COURT: But he has no more of that kind of

24 evidence than every nurse or every caseworker

25 that's ever seen her. If I open the door there,






9

1 the door is wide open for everybody that's ever

2 been in her hospital or Hospice room.

3 MS. ANDERSON: He is in charge of her medical

4 condition.

5 THE COURT: I am well aware of that.

6 MS. ANDERSON: There is nobody else who can

7 say that, not even Dr. Gambone. I am raising that

8 Dr. Gambone will prove that Mr. Schiavo controls

9 her medical condition. Now, there is going to be a

10 big gapping hole in this record if we don't have

11 his testimony.

12 THE COURT: The issue the Second District has

13 framed for this Court to consider is this, quote,

14 "new treatment" set forth in the affidavits. I am

15 going to reserve ruling on this motion.

16 If something develops after the testimony of

17 Dr. Gambone and after the testimony of your

18 physicians, I'll reconsider whether or not to let

19 Mr. Schiavo testify. But my previous position

20 based upon prior ruling is that I am going to hear

21 from six medical experts and I am going to hear

22 some excellent closing arguments. And I am going

23 to decide, based upon all of that, what the Second

24 District Court of Appeal left for me to decide.

25 So I'm going to take your motion, Mr. Felos,






10

1 under advisement, but I am not going to let

2 Mr. Schiavo testify until I have heard from the

3 first three medical doctors, anyway, just to see if

4 there is some efficacy to your statement that there

5 is a gapping hole.

6 MS. ANDERSON: Until the first three

7 physicians have testified; is that what you said?

8 THE COURT: Yes, ma'am.

9 MS. ANDERSON: So it would not be until next

10 week, is what you're saying?

11 THE COURT: Right.

12 MS. ANDERSON: Judge, can you point me to a

13 previous order? You said nobody other than these

14 three physicians can testify.

15 THE COURT: No. I don't recall an order like

16 that. We certainly discussed this. I said one

17 doctor per day. That's been set up. And we will

18 go until the doctor finishes and then we will

19 adjourn.

20 MS. ANDERSON: I don't that recall being put

21 into an order or that we ever even discussed that.

22 THE COURT: I will tell when you we

23 specifically discussed that is when Mr. Felos

24 wanted me to limit your examination of

25 Dr. Hammesfahr because he thought it might run






11

1 over.

2 MS. ANDERSON: Judge, I'm sorry. We haven't

3 discussed initial limiting this hearing only to

4 physicians. We talked about timing.

5 THE COURT: Well, I can't point you to book

6 and page, but I am satisfied it was discussed. If

7 push comes to shove, I guess we can transcribe

8 every hearing we have had in the last year and take

9 a look at it. But clearly, this hearing was set

10 forth to have one witness per day, i.e., a

11 physician.

12 We spoke about having your two physicians

13 testify first, then we turn to the other three.

14 Now, that, clearly to me, anyway -- if it was

15 unclear to you, I apologize you. But clearly, to

16 me it tells me you have two witnesses and three

17 other witnesses.

18 MS. ANDERSON: Actually, when you spoke to me,

19 you told me that my case in chief is today -- or is

20 Monday and Tuesday?

21 THE COURT: Yes, ma'am.

22 MS. ANDERSON: And that I can use that time to

23 best advance my client's cause as I see fit, which

24 includes the testimony of Dr. Hammesfahr and

25 Maxfield. I did not read anything that you have






12

1 ever said in this case or written to limit the

2 witnesses.

3 THE COURT: Well, I just don't see -- I don't

4 see how lay people can talk to me about this new

5 treatment. That is the medical issue and I need

6 medical experts to tell me about this, quote, new

7 treatment, closed quote. That's why we're here.

8 That's why the Second District directed that we be

9 here.

10 MS. ANDERSON: I thought it was about her

11 current medical condition and that's what I want

12 the testimony today to go to, but I understand your

13 ruling.

14 THE COURT: Well, I want to hear from not less

15 than three doctors who will tell me about her

16 current medical condition. And I can't imagine how

17 a lay person is going to add to that body of

18 knowledge.

19 Mr. Felos.

20 MR. FELOS: Your Honor, I thought the Court

21 already made a ruling. And if we are going to have

22 a debate here, then I want to participate, as well.

23 I think the appellate court was abundantly clear

24 about this type of proceeding. "The trial court

25 shall exercise its own judgment and discretion






13

1 concerning the resolution of any such motion." I

2 think the Court has made it abundantly clear in its

3 discussions with counsel in the comment that we

4 were having a hearing, and I don't think there is

5 any knowledge that's what the parties intended.

6 THE COURT: Well, I ruled on your motion and

7 we are just going to sit on it for a few days to

8 see if something develops, in fairness to

9 Ms. Anderson's clients, that we need to modify

10 that. But my understanding of why we are here and

11 how we're going to get the evidence before the

12 Court is that it will be done with six doctors

13 only, but I can change my mind, certainly, if

14 something develops.

15 MS. ANDERSON: Judge, will you continue

16 Mr. Schiavo's subpoena that I served on him

17 contingent upon your ultimate disposition of the

18 Motion to Quash.

19 THE COURT: I have taken the Motion to Quash

20 under advisement, so I haven't ruled on the Motion

21 to Quash. So if you have good service, you have

22 good service.

23 MS. ANDERSON: Very good. Thank you.

24 THE COURT: All right. Does either side

25 desire an opening statement?






14

1 MS. ANDERSON: Yes, I do, Your Honor.

2 THE COURT: Okay. Briefly.

3 MS. ANDERSON: Briefly. Would you like me to

4 proceed first?

5 THE COURT: Yes, please. I think we agreed

6 that it was your burden, so you would go first.

7 MS. ANDERSON: Judge, last month or the month

8 before, during a hearing, you told me that

9 Terry Schiavo wanted to die and that's what this

10 was about. But, in fact, I disagree with you. If

11 Terry wanted to die, she would already been be

12 dead. Common sense tells you that. She's 13 years

13 out.

14 The Second District has remanded the case

15 twice. The reason they remanded it is that they

16 have great concerns that her life is about to be

17 ended under circumstances that are not permitted by

18 Florida law. In the case of Christian versus

19 McGiever, the Florida Supreme Court has rejected

20 the position that is advanced now by Mr. Schiavo.

21 They rejected the position of suicide in a case

22 where the patient was fully competent and wanted to

23 choose the date of his death at some point in the

24 future because he was in too much pain and would

25 not want to live.






15

1 The court, after McGiever and Brownley came

2 down on the sideline and said, "We cannot permit

3 the physician-assisted suicide any more than we can

4 permit suicide." So Terry's wishes, if they reject

5 a competent person's wishes in the case of an

6 express desire to die, if that's not an overriding

7 consideration, then it cannot be in the case where

8 she have no advanced record. You have to focus on

9 what is her medical condition because the statute

10 has certain safeguards built in.

11 In order to end her life under these

12 circumstances, 765.305 says, "She must be in a

13 persistent vegetative state or terminal or an end

14 stage." You must have had the determination before

15 you even consider the issue of her wishes. So

16 that's why the Second District sent it back;

17 otherwise, people would say kill me please or I am

18 going to commit suicide. It runs against public

19 policy in Florida.

20 The overriding issue is not what Terry wants.

21 The preliminary issue, the first issue is does

22 Terry meet the statutory condition precedent to

23 even get to the point where you can look at that.

24 And that's where we are, that's why we're focusing

25 on these medical issues.






16

1 Terry has the right to reject the feeding tube

2 and that's why the Second District sent it back.

3 If she can regain sufficient cognitive ability to

4 tell us what she wants, then that comes into play.

5 But, only after we determine what her medical

6 condition is.

7 You have also said in the first, very first

8 hearing back in January after the remand of this

9 case, first or second, that we were not one to

10 relitigate the issue of PVS. You're quite right.

11 We are not going to talk about what condition she

12 was in in January of 2000 when you first heard

13 evidence. We are litigating what her current

14 medical condition is. That was then. This is
now.

15 So, Judge, that's why the Second District

16 has spoken. That's why they listed this as the

17 number one thing that they want to know about:

18 What is her current medical condition. We are not

19 relitigating her condition from two years ago. If

20 you look at Page 647 of the opinion where they list

21 their four items they're going to focus on, you'll

22 see that the number one item is what is her current

23 medical condition.

24 Now, during the course of this hearing you are

25 going to see and hear some remarkable evidence that






17

1 you have never been exposed to before. And I hope

2 that you can bring an open mind to it and an open

3 mind to this question of what is her current

4 medical condition, is there new treatment

5 available, will it work for her within any sort of

6 reasonable degree of medical probability. You

7 didn't hear before what you are going to hear in

8 this hearing, and that's why we're focusing on what

9 her current medical condition is.

10 I know that I can expect that you will

11 approach this with a fair and impartial mind

12 because, after all, this is a life or death case.

13 Feelings run high about this case. This case

14 represents a profound debate about the rights of

15 handicapped people in America.

16 I hope, Judge, that you can listen to this new

17 evidence. I hope that you can set aside any

18 preconceived notions that stem from the prior trial

19 two and a half years ago because we're here to

20 focus on today and tomorrow, not yesterday.

21 Thank you, Judge.

22 THE COURT: Thank you.

23 Mr. Felos, do you wish an opening statement?

24 MR. FELOS: Yes, Your Honor.

25 Your Honor, the case we had and the trial we






18

1 had in January of 2000 was a case of life and death

2 which was affirmed through the appellate court

3 system and which judgment still stands. What we

4 are here this week to do is to dispel the lingering

5 doubt that the Second DCA expressed in its opinion.

6 In Schiavo III, even they said, in their words,

7 they expressed scepticism over the claims raised by

8 the Respondents' physicians.

9 This is not a case to change the law in

10 Florida or profound debate on the law in Florida.

11 The law in Florida is settled. It was settled in

12 the Brownley case in 1990 that says that "competent

13 Floridians, as a part of their liberty, interest,

14 and control of their own body, has the right to

15 refuse unwanted medical treatment. And if they

16 have the treatment, they have the right to

17 discontinue it and that it's irrespective of their

18 medical condition or their prognosis or their type

19 of treatment."

20 If somebody can't communicate that decision

21 for themselves, then a close family member, friend,

22 or guardian may make the decision based upon clear

23 and convincing evidence. And this Court has

24 already found clear and convincing evidence. It's

25 been upheld on appeal, so that's not an issue in






19

1 this proceeding.

2 This is obviously not the case of statutory or

3 legal authority to remove life support. That's

4 been settled. The Second District has found that

5 Terry Schiavo was in terminal condition pursuant to

6 Florida statute. This proceeding is about whether

7 the fantastic claims of the parents' physician, to

8 which the Second District has already expressed

9 scepticism, have merit. And that's a burden which

10 the respondents will have to prove in this case and

11 they will be unable to meet.

12 Just briefly on the evidence, Your Honor.

13 One, obviously, would be the testimony of five

14 expert physicians in this case. Credibility -- and

15 just -- this is not a hearing of numbers, but the

16 evidence will show the physicians selected by the

17 guardian and the independent physicians selected by

18 the court all conclude that Terry Schiavo is in a

19 persistent vegetative state and there is no

20 treatment that can help her recover. But it's not

21 just a matter of a quantity, it's quality of

22 evidence that I think is even more persuasive
here.

23 Who are these physicians that are going to be

24 testifying before the court? The physicians are

25 part of the -- the physicians on the part of the






20

1 husband are affiliated with major universities.

2 Dr. Cranford, a professor of neurology at the

3 University of Minnesota. Dr. Greer, the former

4 head of the Department of Neurology up at Shans

5 Hospital for over 20 years. Well respected, well

6 offered physicians, as is Dr. Bambakids. The

7 physicians select by the parents don't even have

8 hospital privileges, let alone affiliations with

9 universities of this type.

10 Another piece of evidence, Your Honor, would

11 be medical testing, new medical testing ordered by

12 this Court. A new CT scan, which confirms what

13 this Court already concluded two years ago, there

14 is a small lump of brain cells still remaining in

15 the cerebral hemispheres, two EEGs with no evidence

16 of cerebral activity, flat, a spec scan that

17 shows -- severely abnormal spec scan that shows

18 reduced levels of activity in the brain, which you

19 would expect.

20 Also, we are going to see in this hearing, I

21 gather, approximately four hours of videotapes from

22 examinations of Terry Schiavo. And that, Your

23 Honor, I think deserves special mention. We

24 contend that those videotapes will show a patient

25 that you would expect to see in a persistent






21

1 vegetative state. Those tapes will show a patient

2 that at moments and occasions has reflex actions to

3 painful stimuli, that has a primitive auditory and

4 visual reflex but shows no cognitive ability.

5 I think it's extremely important to note --

6 and I make these comments in a broader sense

7 because the appellate court certainly said, "these

8 open proceedings are essential to the issue of

9 public understanding of this process", and the

10 public should have access to these videos and with

11 that comes responsibilities.

12 There are certain physical movements that

13 Terry Schiavo has. She opens her eyes. She closes

14 her eyes. She blinks her eyes. Now, these tapes

15 will show numerous attempts to have her do those,

16 "open your eyes, Terry. Close your eyes, Terry.

17 Blink your eyes, Terry." Now, there may be on

18 these four hours of videotape -- sooner or later a

19 command is going to correspond with a random

20 action, so there may be a time when someone says,

21 "Terry, blink your eyes," and her eyes blink. And

22 if the media broadcasts that ten second segment out

23 of context --

24 MS. ANDERSON: Your Honor, Mr. Felos has

25 strayed into closing argument, actually.






22

1 MR. FELOS: Your Honor, I am almost concluded.

2 THE COURT: Okay. Thank you.

3 MR. FELOS: So in viewing -- as the court

4 views these tapes and the public views these tapes

5 as they are, Your Honor, it's important when you

6 see something, to also take into account what you

7 are not seeing at that moment. I think that this

8 court, as you peruse these videotapes very

9 carefully and hears testimony, will be convinced at

10 the end of this hearing that Terry Schiavo is in a

11 vegetative state and also that these treatments

12 will not possibly help her.

13 THE COURT: Thank you. With respect to the

14 later point Mr. Felos mentioned, the only

15 constraint this Court has placed upon the media is

16 that the filming of those videos may only be

17 utilized in the ordinary dispensing of the news.

18 The Court is certainly not going to tell the news

19 or media what portions of those tapes they should

20 or should not use. They are the pros at it and

21 they will do what they think they need to do.

22 Okay. Are we ready for Dr. Gambone?

23 MR. FELOS: Yes, Your Honor. At the Court's

24 instruction, I call Dr. Gambone.

25 THE COURT: Thank you. Solemnly swear this

23

1 testimony you are going to give in this cause will

2 be the truth, the whole truth, and nothing but the

3 truth so help you God?

4 THE WITNESS: Yes, I do.

5 THE COURT: Thank you, Doctor. Have a seat,

6 please. Doctor, if you need water, just ask the

7 bailiff. It's available right here.

8 DIRECT EXAMINATION

9 BY MR. FELOS:

10 Q. Morning, Dr. Gambone.

11 A. Good morning.

12 Q. Could you state your name and profession for

13 the record?

14 A. Victor Gambone. I am a physician practicing

15 in the state of Florida. My specialty is internal

16 medicine and geriatric medicine.

17 Q. Doctor, are you board certified in any of

18 those fields?

19 A. Yes. I am board certified in internal

20 medicine and geriatric medicine.

21 Q. And how long have you been licensed to

22 practice medicine in Florida?

23 A. Since 1976.

24 Q. And, sir, you are the primary treating

25 physician for Teresa Schiavo?






24

1 A. Yes, I am.

2 Q. Approximately how long have you acted in that

3 capacity?

4 A. Since 1978.

5 Q. Dr. Gambone --

6 THE COURT: What year did you say?

7 THE WITNESS: Excuse me. 1998.

8 THE COURT: Thank you.

9 BY MR. FELOS:

10 Q. Dr. Gambone, you were ordered by the court to

11 perform a comprehensive medical evaluation of

12 Teresa Schiavo earlier this year. Did you perform such

13 a medical evaluation?

14 A. Yes, I did.

15 Q. And approximately when did you do that?

16 A. That was in April.

17 Q. Of 2002?

18 A. Yes.

19 Q. I would like to show you what's been marked as

20 Petitioner's Exhibit 1 for identification at this time

21 and ask you if you can identify it?

22 A. Yes. It's a copy of the examination that I

23 made on April the 9th of this year.

24 Q. And in conjunction with that examination, did

25 you order any tests to be performed?






25

1 A. Yes, I did. I ordered tests.

2 Q. What type of tests are those?

3 A. These tests were blood tests of the blood

4 chemistries, the hematologic evaluation, blood counts,

5 and also tests of the urine.

6 Q. Now, Dr. Gambone, pursuant to the court's

7 order of, I believe, a week or so ago, did you order any

8 further blood work?

9 A. Yes. Recently, I did repeat additional blood

10 tests.

11 Q. Were there any added tests on your most recent

12 blood work that were not done the first time?

13 A. Yes. At the court's request, they included

14 some tests of the hormone functions.

15 Q. That would be in connection with the blood

16 screen?

17 A. That's correct.

18 Q. Dr. Gambone, I would like to show you

19 Petitioner's Exhibit 2, which has been marked for

20 identification purposes. And, please, tell me if you

21 recognize that.

22 A. Yes. These are the blood tests which were

23 performed on October the 3rd on Terry Schiavo.

24 Q. Okay. Dr. Gambone, first, can you describe to

25 the court, please, the procedure that you followed in






26

1 conducting your medical examination back in October --

2 excuse me, back in April of this year.

3 A. Yes. The examination consisted of a review of

4 the medical record since my prior examination, a

5 discussion with the nursing staff and review of their

6 notes on Terry's condition, and a physical examination.

7 Q. And, please, describe your physical

8 examination of Terry.

9 A. The physical examination was performed,

10 including examination of the skin, body ordinances,

11 organs, the heart and lungs. It's the usual examination

12 that one would do.

13 Q. Okay. All right. And on the basis of the --

14 well, let's move to the blood tests, as well, that were

15 taken back in April. Was there anything unusual or out

16 of the ordinary in the blood work performed back in

17 April?

18 A. No, there was nothing abnormal.

19 Q. And how about in the urine screen?

20 A. Yes. There were some bacteria in the urine

21 specimen.

22 Q. Okay. And what did that indicate to you,

23 Doctor?

24 A. Terry has had a history of urinary tract

25 infections. And this is something which one might






27

1 expect with someone in her condition, not able to care

2 for herself and move bowels and urinate in the normal

3 manner. She is more susceptible to such infections than

4 the normal person. The bacteria come from fecal

5 material, which they can spread into the bladder. And

6 that's how this occurs.

7 Q. Now, you mentioned that there was bacteria

8 found in her urine. Were you able to conclude whether

9 she had a urinary tract infection?

10 A. Yes. Because of bacteria on the skin, which

11 can get into the bladder, we often find someone in this

12 condition will have bacteria in the bladder. If the

13 bacteria invades the bladder tissue, it would cause

14 infection.

15 Q. So you could have bacteria in the urine

16 without an infection; is that correct?

17 A. That's correct. We use the term

18 "colonization" to describe that condition as opposed to

19 infection.

20 Q. How do you tell the difference between a

21 colonization or an infection in a patient?

22 A. In general, white cells or puss cells, if I

23 might use that vernacular, are cells that are found in

24 the urine specimens in large numbers in nursing home

25 patients.






28

1 Q. And are white cells something that would show

2 up on a blood screening?

3 A. The test of the urine, I'm speaking of the

4 blood cells in the urine, we find numerous white cells.

5 Q. Was there an elevated white blood cell count

6 in Terry's urine?

7 A. In examination in April, there was not an

8 elevated count. But more recently, she did have an

9 infection that we treated.

10 Q. I want to say, first of all, to the April

11 examination, based upon the -- did you form an opinion

12 as to whether or not Terry had an infection or

13 colonization back in April?

14 A. My opinion was that she had a colonization at

15 that time.

16 Q. By the way, you mentioned that Terry, in the

17 past, has had urinary tract infections. Have they been

18 associated with elevated white blood cell counts?

19 A. Elevated white blood cell counts. You know, I

20 would have to review the record to come to that

21 conclusion.

22 Q. Okay. What, if anything, did do you in

23 response to your conclusion that she had a colonization?

24 A. I went ahead and treated her with a short

25 course of mild antibiotic to eradicate the bacteria from






29

1 the urine.

2 Q. Now, Dr. Gambone, as a result of your

3 examination in April of this year, did you find that

4 Terry's physical condition had appreciably changed since

5 1998 when you started treating her?

6 A. No. There was no absolutely no change in her

7 condition in my examination.

8 Q. Now, in the -- as a result of your April

9 examination and the testing that you did, did you find

10 any evidence of heart problems with Terry?

11 A. No, I did not.

12 Q. Did you -- other than the colonization of

13 urine, did you find any other neurological problems?

14 A. No, I did not.

15 Q. Any sinus problems?

16 A. No.

17 Q. Any problems with her ears?

18 A. There was a buildup of wax in the ear.

19 Q. Was that an extraordinary buildup of the ear

20 wax?

21 A. No. Something that would you expect to

22 find --

23 Q. You have to speak up a little bit.

24 A. Yes. That would be an everyday finding upon

25 examining.


30

1 Q. Did you -- I gather you listened to her lungs.

2 A. Yes, I did.

3 Q. Did you use a stethoscope?

4 A. Yes.

5 Q. Did you notice any pulmonary abnormalities?

6 A. No, I did not.

7 Q. Now, did you notice -- as a result of your

8 examination and testing, were there any problems you

9 noticed with Terry's liver, liver function?

10 A. No. There were no abnormalities there.

11 Q. With her kidneys?

12 A. No.

13 Q. With her bladder?

14 A. No.

15 Q. Other than the colonization you were talking

16 about.

17 A. That's correct.

18 Q. Now, in your -- I would like to bring you to

19 the blood testing that was recently done.

20 First, let's take the specific question about

21 the endocrine blood screening. What hormones did you

22 request be tested?

23 A. The testing included tests of the pituitary

24 hormone. The pituitary gland is a natural gland in the

25 brain. This mic is bad.


31

1 THE COURT: It's better than it used to be.

2 Court administration has done a great job with this

3 PA system.

4 THE WITNESS: I did a thyroid blood test, the

5 pituitary gland. I checked the thyroid stimulated

6 hormone, and also the volatile stimulated hormone,

7 which is the hormone important in illiciting

8 production of estrogen by the ovaries. It's an

9 important test of her normal menstrual function.

10 BY MR. FELOS:

11 Q. Any other hormones?

12 A. Yes. I tested the cortisol, this is a hormone

13 made by the adrenal gland, and also aldosterone, a

14 hormone made by the adrenal glands which is important in

15 the regulation of blood cells.

16 Q. Did you find -- what were the results,

17 Dr. Gambone, of the blood screening for these hormones?

18 A. All of these tests were within the normal

19 range.

20 Q. Okay. Regarding the balance of the testing,

21 of the recent blood testing, did you find anything out

22 of the ordinary?

23 A. No, I didn't.

24 Q. Now, I did notice in the -- they have columns

25 in the blood tests for normal, abnormal. And there's






32

1 two, albumin and total protein, that appear in the

2 abnormal category. First of all, could you tell me what

3 those are and what those measure?

4 A. Yes. It's a measure of the protein found in

5 the blood. The protein in the blood would come from

6 albumin, from proteins that transport various chemicals

7 and hormones throughout body and also through the immune

8 system. Her total proteins were borderline low.

9 Q. And what significance, if any, did you give

10 that finding?

11 A. I didn't investigate it any further.

12 Q. Why not?

13 A. Because my feeling was that with her lack of

14 muscle mass, that she would not have as much protein in

15 the blood as someone who was --

16 Q. I believe -- excuse me?

17 A. The other concern when there is low protein is

18 their malnutrition situation. And her body weight has

19 been very stable and she has been receiving a formula

20 which has very high nutrition. We also checked other

21 vitamins, B12, Folic Acid. Those levels were extremely

22 high suggesting that it was not a situation of lack of

23 nutrition.

24 Q. You used the word "borderline." How close

25 were the blood protein results to the lower end of the






33

1 normal range?

2 A. The normal is 3.0 and her test was 2.9. And

3 the other test was 6.0 and she was a 5.8.

4 Q. What's the high range for those tests?

5 A. 5.0 on the albumin and 8.0 on the total

6 protein. And the results of the high protein could

7 indicate a chronic inflammatory state or a chronic

8 infection, so she was on the other end of the results.

9 Q. All right. Dr. Gambone, when is the -- let me

10 backtrack. You mentioned something about a subsequent

11 urinary tract infection that Terry had since April; is

12 that correct?

13 A. That's correct.

14 Q. When did that occur?

15 A. Within the past two weeks.

16 Q. And how was that addressed?

17 A. That was treated with an antibiotic. In this

18 case, a urinalysis revealed a large number of white

19 cells along with significant bacteria. So it was clear

20 there was infection.

21 Q. Okay. When is the last time you saw

22 Mrs. Schiavo, Dr. Gambone?

23 A. September 26 of this year.

24 Q. And what was the reason for that?

25 A. A routine visit. I had her on my schedule to






34

1 visit. I would like to see her every three to four

2 months.

3 Q. And did you notice any appreciable changes in

4 her physical condition as compared to your examination

5 in April?

6 A. No, I didn't see any.

7 Q. Since your examination in April, has Terry

8 been in the hospital?

9 A. Yes, she was in the hospital.

10 Q. What was she in the hospital for?

11 A. Her gastrostomy tube malfunctioned. The bulb,

12 which is an inflatable bulb that holds the tube in place

13 in the stomach, had ruptured, so the tube came out.

14 Q. I see. And she was hospitalized to repair

15 that?

16 A. Yes. Usually you can replace it at bedside,

17 but the nurses had some difficulty and we felt it would

18 be best to have her in the hospital setting.

19 Q. Is the tube becoming dislodged an uncommon

20 event when someone is tube fed?

21 A. Tube problems are wonderful to manage that we

22 have to deal with, so this could be a common occurrence.

23 MR. FELOS: I have no other questions, Your

24 Honor.

25 THE COURT: Thank you. Cross-examination?






35

1 MS. ANDERSON: Give me a moment, Your Honor.

2 THE COURT: Certainly.

3 CROSS-EXAMINATION

4 BY MS. ANDERSON:

5 Q. Dr. Gambone, I could not quite hear you when

6 you said you were board certified in internal medicine

7 and something else?

8 A. Geriatric medicine.

9 Q. And you said you see Terry about every four

10 months or so?

11 A. Yes.

12 Q. About how long do you spend when you see her?

13 A. Twenty minutes.

14 Q. What do you do in those 20-minute exams?

15 A. Review the medical record, discuss any ongoing

16 problems with the staff, including Hospice in this case,

17 and do a physical examination.

18 Q. You take her vital signs?

19 A. I have the nurses take vital signs. I do not

20 do it myself.

21 Q. You say that you spend 20 minutes with her.

22 Do you spend 20 minutes in her room examining her?

23 A. No, I wouldn't say 20 minutes examining her.

24 Q. You confer with the nurses and review her

25 prognosis?






36

1 A. That is correct.

2 Q. How much of the 20 minutes is actually spent

3 with your spending time with Terry in her room?

4 A. I would say half of that. Maybe ten minutes.

5 Q. Ten minutes?

6 A. Uh-huh.

7 Q. And you did that about every four months?

8 A. That's correct.

9 Q. Dr. Gambone, does -- you began being her

10 attending physician when she was still in the nursing

11 home, correct?

12 A. Yes.

13 Q. So you oversaw her movement to Hospice?

14 A. Yes.

15 Q. Now, does both the nursing home where she was

16 and Hospice keep medical records in the ordinary course

17 of business?

18 A. Yes, they do.

19 Q. Is it those records that you review when you

20 make the rounds?

21 A. Yes, they're the records that I review.

22 Q. Well, would you recognize those records if you

23 saw them?

24 A. Yes, I would.

25 Q. All right. Very good.






37

1 MS. ANDERSON: May I approach, Your Honor?

2 THE COURT: Yes, you can.

3 BY MS. ANDERSON:

4 Q. Dr. Gambone, I have handed you Composite

5 Exhibit 12 for identification and ask you to flip

6 through those briefly and tell me if you can recognize

7 those documents.

8 A. Yes. They are copies of records from

9 Terry Schiavo.

10 Q. And some of those records contain notations

11 that you, yourself, have signed, correct?

12 A. Yes, they do.

13 MS. ANDERSON: Your Honor, I would move

14 Respondents' Exhibit 12 into evidence at this time.

15 THE COURT: Any objection?

16 MR. FELOS: Your Honor, I just want to make

17 sure. If we're going to be introducing medical

18 records - we don't have a record custodian - that

19 there would be no objection to my introducing a

20 portion of medical records at a later time.

21 MS. ANDERSON: Well, Your Honor, that's why I

22 ask the foundation questions of Dr. Gambone. He

23 recognizes them and knows that they're business

24 records. That falls under the business record

25 exception of the hearsay rule.






38

1 MR. FELOS: Your Honor, he is not the records

2 custodian.

3 THE COURT: Is there any question as to the

4 legitimacy of these records, Mr. Felos?

5 MR. FELOS: Well, Your Honor, also, there are

6 hearsay matters in the records. I don't have an

7 objection to the introduction of a portion of the

8 medical records if we are afforded the same

9 opportunity.

10 MS. ANDERSON: Well, you see, I have taken the

11 opportunity to have Dr. Gambone answer the

12 foundation questions that are necessary to

13 establish a hearsay exception. Mr. Felos has not

14 done that in this case. I haven't seen what

15 medical records he wants to introduce. I'm not

16 saying I will stipulate to them. I don't think

17 it's an issue to be addressed in my case in chief.

18 I would like to ask my witness a question about

19 these medical records. We are taking care of a

20 housekeeping matters in the middle of the

21 examination of my witness.

22 THE COURT: This is not your witness, is it?

23 MR. FELOS: This is not your case in chief.

24 THE COURT: I'm going to allow them to come

25 in. They have been identified and they can be






39

1 identified by Mr. Felos.

2 MS. ANDERSON: You will allow Exhibit 12 to

3 come in, correct? You are accepting Exhibit 12

4 into evidence.

5 THE COURT: That's what I thought I said.

6 MS. ANDERSON: Very good.

7 THE COURT: Now, these are coming in on cross.

8 Is there technically -- is there an objection to

9 having them come in out of order, Mr. Felos?

10 MS. ANDERSON: Well, Judge. I can move them

11 into evidence. If you would like to withhold and

12 treat them as merely marked for identification, I

13 can move them in on Monday and it may be actually

14 more proper.

15 THE COURT: Well, I'm just trying to find out

16 if there is a problem. Is there problem with the

17 exhibits coming in, Mr. Felos?

18 MR. FELOS: No, Your Honor.

19 THE COURT: All right. They will be so

20 received as Exhibit Number 12. How are they

21 designated?

22 MS. ANDERSON: Respondents.

23 THE COURT: Respondents' Exhibit 12. That's

24 how they would be received.

25 MS. ANDERSON: Thank you, Your Honor.






40

1 (Whereupon, the documents referred to were

2 received in evidence as Respondents' Exhibit 12.)

3 BY MS. ANDERSON:

4 Q. Dr. Gambone, if you go through these records,

5 you will see that on each page there's what we call a

6 "bate stamp" number.

7 A. Yes. Yes, I see that.

8 Q. I may have some questions for you and refer

9 you to specific pages, and I will refer you to by

10 number. I also want to ask you, Dr. Gambone, your

11 opinion on some matters. And can we understand when you

12 express an opinion that's it's within a reasonable

13 degree of medical certainty?

14 A. Yes.

15 Q. Now, are you medical director at Hospice where

16 Terry is?

17 A. No, I am not.

18 Q. Do you have other patients at Hospice?

19 A. Not at this time.

20 Q. Have you had in the past?

21 A. Yes, I have.

22 Q. Are you a medical director at nursing homes in

23 the area?

24 A. Yes, I am.

25 Q. How many?






41

1 A. Five.

2 Q. Are you also responsible for the care of the

3 patients there?

4 A. I have patients under my care in those nursing

5 homes, yes.

6 Q. For which you are the attending physician?

7 A. That's correct.

8 Q. What is your patient load, all total, of

9 patients in the nursing home?

10 A. Two hundred and eighty two.

11 Q. Plus Terry at Hospice, are you including her?

12 A. Yes, I am including her.

13 Q. And you get around to see each one of them

14 about every four months or so?

15 A. Different patients have different levels of

16 medical needs and I would treat my schedule accordingly.

17 Q. And sometimes, as in Terry's case, people in

18 Hospice have called you about some question or another,

19 haven't they?

20 A. Yes.

21 Q. Have you given any special standing

22 instructions to Hospice nurses about how they are to

23 record their chart notes?

24 A. No, I have not.

25 Q. Do you know if Mr. Schiavo has?






42

1 A. No, I am not aware of any instructions for

2 Hospice notes.

3 Q. Have you ever attended a meeting at which this

4 topic was addressed?

5 A. No, I have not.

6 Q. Would it be unusual for only two nurses, for

7 example, to make entries on her Hospice chart?

8 A. I don't think I would be able to answer that

9 question.

10 Q. Whether or not it would be unusual?

11 A. Yes, I couldn't answer that question.

12 Q. When you go to see Terry and review the chart,

13 have you noticed that it seems to be the same two nurses

14 over and over again making chart entries?

15 A. If you brought it to my attention. You may be

16 correct.

17 Q. Are there nurses with whom you consult at

18 Hospice on a routine basis about Terry?

19 A. When I arrive, I ask for the nurse that is

20 caring for Terry and that's the nurse that I communicate

21 with. I'm sorry. I don't know their names, so I don't

22 remember who they were.

23 Q. So it may be a different person depending on

24 what time of day you arrive or shift you arrive?

25 A. And I have seen Terry during regular business






43

1 hours, so it would be the day nurse.

2 Q. The day nurse?

3 A. Yes.

4 Q. Incidentally, do you maintain an office

5 practice in addition to your nursing home practice?

6 A. I no longer have an office practice. I sold

7 my office practice in 1995.

8 Q. So a typical day for you consists of going to

9 nursing homes?

10 A. Yes. I am also employed as a medical director

11 with United Health Group, and that's 20 hours a week.

12 Q. Twenty hours a week?

13 A. Yes.

14 Q. In what facility are you assigned?

15 A. It's an administrative position. It's not a

16 facility.

17 Q. I see. So you have an administrative office

18 somewhere?

19 A. Yes, I do, in Tampa.

20 Q. In Tampa?

21 A. Yes.

22 Q. Give me the address.

23 A. 9009 Corporate Lake Drive, Suite 200, Tampa,

24 33614.

25 Q. And what's entailed in that position?






44

1 A. In that position, I work with nurse

2 practitioners in a demonstration project for the

3 center's Medicare and Medicaid services.

4 Q. So it, too, focuses on geriatric care?

5 A. Yes, long-term care.

6 Q. Now, is Terry your youngest patient?

7 A. No.

8 Q. Is she one of your youngest?

9 A. Yes, she is.

10 Q. Now, what kind of therapy have you ordered for

11 Terry, if any?

12 A. I don't believe that I have order any therapy

13 in the period of time that I have been taking care of

14 her.

15 Q. Have you ever suggested that she be evaluated

16 for therapy and have Mr. Schiavo overrule you?

17 A. No. There are periodic evaluations done in

18 the nursing home and at Hospice, and those evaluations

19 show she would not benefit. At least at Palm Gardens,

20 we could periodically evaluate Terry.

21 Q. Does Hospice have licensed therapists on the

22 staff?

23 A. They do, and I am not exactly sure of their

24 level of activity.

25 Q. Do you know whether a -- are we talking


Continued in PART 2




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