|
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
45
1 physical therapists?
2 A. Yes.
3 Q. Do they also involve speech therapy?
4 A. Yes, they do. We have therapy and other level
5 of activities, but I'm just not aware of the details of
6 their program.
7 Q. Now, you became Terry's attending physician in
8 April of '98, correct?
9 A. That's correct.
10 Q. I want to direct your attention to bate number
11 Page 98 in Exhibit 12. It's further back, next to the
12 last page. The number 98 is within the middle of the
13 page. You got it?
14 A. Yes, I have it.
15 Q. Very good. The last entry is dated 4/20/98.
16 A. Yes.
17 Q. Is that your handwriting?
18 A. Yes, it is.
19 Q. I can almost read all of it, but would you
20 read it aloud?
21 A. Yes. "Chart review patient's condition.
22 Discussed with nursing staff and staff nurses.
23 Concerned about contractures of upper extremities and
24 elbows. Right worse than left, antecubital areas.
25 Yeast infection. No areas of cutaneous breakdown. No
46
1 respiratory symptoms. Patient stable. Lungs remain
2 clear. Cardiac examination regular; no murmur.
3 Neurologically unchanged. Impression: Anoxic
4 encephalopathy with residual persistent vegetative
5 state, contractures. Continue nursing home care.
6 Lotrimin cream to antecubital space to prevent yeast
7 infection. Husband declined physical therapy evaluation
8 for treatment of contractures."
9 Q. Have her contractures worsened since April 28,
10 1998, in your opinion?
11 A. I don't believe so.
12 Q. You don't believe so?
13 A. No.
14 Q. She was as contracted in April of 1998 as she
15 is today?
16 A. I believe so.
17 Q. Now, do you know why Mr. Schiavo was not
18 interested in physical therapy for his wife?
19 A. I didn't say that he declined. He declined
20 evaluation by the therapist. And his reason was that
21 she had had multiple evaluations and it seemed not to be
22 appropriate to call on someone else to make the same
23 evaluation.
24 Q. Well, it would be somebody right there on the
25 staff, wouldn't it?
47
1 A. Yes.
2 Q. So she gets no physical therapy?
3 A. Yes.
4 Q. And she has never had physical therapy while
5 under your care?
6 A. Yes. Treatment of the contractures is
7 something which is done as part of bedside nursing. And
8 we ask, you know, if there was anything more that could
9 be done. We asked the professionals who are on staff to
10 evaluate what work needs to be done, as Michael pointed
11 out to me at a particular point in time.
12 Q. So you deferred to his recount of his wife's
13 medical history?
14 A. Yes, I did.
15 Q. And you didn't search out a previous
16 evaluation?
17 A. I don't recall exactly what I did in April of
18 1998. Perhaps, he pointed out to me an evaluation
19 review and I was satisfied. I do remember discussing
20 with him, among other things that come up in the
21 records, but, then we have a limited amount information.
22 Q. And, well, aren't contractures normally
23 treated with physical therapy?
24 A. To a certain extent physical therapy can help,
25 yes.
48
1 Q. And, in fact, isn't physical therapy ordered
2 in order to prevent contractures or to prevent their
3 worsening?
4 A. Well, a physical therapist can help to a
5 certain point in which they provide a daily program for
6 the caregivers to maintain a level of flexibility.
7 Q. Do you work closely with Mr. Schiavo in taking
8 care of Terry?
9 A. Yes, I do.
10 Q. Are you in telephone contact with him?
11 A. Yes, I am.
12 Q. About how frequently?
13 A. If I notice that there are problems, I will
14 call him. But, certainly, if I notice anything that the
15 nurses raise or one of the nurse practitioners, I would
16 be in contact with Michael.
17 Q. So can you estimate how frequently that would
18 be that you would call?
19 A. I would say several times a year.
20 Q. Do you know when the last time you spoke?
21 A. Yes. I think the last time I spoke with him
22 was at the time of the examination in April. He
23 happened to be at the facility at that time.
24 Q. And Terry, in order to get the tube replaced,
25 you had to speak to him?
49
1 A. That's correct.
2 Q. Did she miss any feedings, do you know?
3 A. She gets fed 12 hours a day, so I don't think
4 that -- I couldn't tell you the exact time I had. There
5 was -- couldn't tell you. There was another physician
6 taking care of her.
7 Q. Who was that other physician? I thought you
8 were the main physician.
9 A. No. I do not -- I limit my practice to the
10 long-term care scope. Even though I have privileges at
11 the hospital, I prefer to have hospital specialists
12 attending in her care.
13 Q. So it's the staff physician or the attending
14 physician?
15 A. Yes. The physician on staff; that is correct.
16 Q. Do you know who it was?
17 A. Yes. Dr. Koletis.
18 Q. Do you know how to spell his last name for the
19 court reporter?
20 A. Yes. It's K-O-L-E-T-I-S. I don't think
21 it's Z.
22 Q. You did a good job.
23 Now, are contractures permanent, by the way?
24 A. They can be, yes.
25 Q. Are her contractures permanent?
50
1 A. Yes. As far as I know, yes.
2 Q. Now, when you accepted Terry as a patient, do
3 you remember who you accepted her from?
4 A. Yes, Dr. Mulroy.
5 Q. Dr. Mulroy?
6 A. Yes.
7 Q. And why did her care get transferred to you,
8 if you know?
9 A. I was told that Dr. Mulroy was concerned about
10 the conflict within the family and felt that -- he felt
11 better if he turned her care over to another physician.
12 Q. Did you speak with Dr. Mulroy before you took
13 over her care?
14 A. I believe I did, but I don't recall that
15 conversation.
16 Q. Did he give you his impression of her
17 condition?
18 A. Yes. He did forward the medical records to
19 me.
20 Q. Where do you maintain patient medical records,
21 by the way?
22 A. In the facility where the resident resides.
23 Q. Okay. So her medical records are all at
24 Hospice, as far as you know?
25 A. Yes, or Palm Gardens.
51
1 Q. But Dr. Mulroy's records of his treatment of
2 Terry came with her to Hospice; is that right?
3 A. I'm not sure if Dr. Mulroy's records have been
4 copied to Hospice. I couldn't tell you. They were at
5 Palm Gardens.
6 Q. Why did she get moved from Palm Gardens to
7 Hospice? You moved her, right?
8 A. Yes. That definitely wasn't my decision. I
9 feel there is a reason to move her from one medical
10 facility to another. It was just a decision that was
11 made by Michael.
12 Q. Mr. Schiavo?
13 A. Yes.
14 Q. And you conceded to that, once again?
15 A. Yes.
16 Q. Did you have reservations about putting her in
17 Hospice?
18 A. No, not in Hospice.
19 Q. Aren't patients admitted to Hospice Woodside
20 expected to die within six months?
21 MR. FELOS: Your Honor, I believe that
22 question calls for a legal conclusion by the
23 witness. I would object.
24 THE COURT: Overruled.
25 BY MS. ANDERSON:
52
1 Q. What's the answer to that question, Doctor?
2 A. I estimate that at Hospice -- Terry is the
3 resident who has been here the longest. They said they
4 have had no other resident that are in Hospice Woodside
5 a for longer period.
6 Q. Are the patients generally expected to die
7 within six months of their admittance? Isn't that a
8 Hospice policy?
9 A. No, it's not a Hospice policy. It's just a
10 guideline that is used to determine the prognosis for
11 Hospice.
12 Q. It's kind of a rule of thumb?
13 A. Yes.
14 Q. Now, do you remember when you first began
15 treating her?
16 A. In 1998?
17 Q. Yes.
18 A. Yes.
19 Q. What did you do at the time she came under
20 your care as far as clinical examination?
21 A. The examination was similar to the examination
22 that I made recently. It was a physical examination.
23 She was a new patient, so it took a longer period of
24 time to go through the records, talk to Michael and the
25 nursing staff.
53
1 Q. Now, what was her blood pressure at?
2 A. I do not take blood pressures myself. I rely
3 on blood pressure from the nursing staff. We
4 anticipated your question and I got that information
5 the. Systolic blood pressure range from 115 to 120.
6 Q. And diastolic?
7 A. Diastolic pressure -- you know, I forgot what
8 it was. It was in the low range. I think it was 70
9 plus or minus five.
10 Q. And what was the normal range?
11 A. I guess that would be considered within the
12 normal range.
13 Q. And these blood pressures are current as of
14 yesterday?
15 A. The blood pressures are current as of prior to
16 the beginning of the week.
17 Q. The beginning of the week?
18 A. Yes.
19 Q. Thank you for checking on that, Doctor.
20 Now, before the dialysis that was done in the
21 spring, the one that showed the colonization --
22 A. Yes.
23 Q. -- when was the timing for that that you
24 ordered the urinalysis?
25 A. In -- I don't have an answer on time, so I
54
1 have to read the records because I don't know exactly
2 when it was.
3 Q. If she is susceptible to urinary tract
4 infections, do you routinely order a urinalysis be done
5 on her?
6 A. No. We would not routinely do a urinalysis.
7 We would look for changes in condition, nursing
8 observations, foul odor to the urine, a fever, an
9 increased moaning. We would look for reasons to
10 investigate further. It might be something else besides
11 a urinary tract infection.
12 Q. Now, you've done two urinalyses this year on
13 Terry, correct?
14 A. Yes.
15 Q. And both of them were abnormal, also correct?
16 A. Yes.
17 Q. The first showed bacterial colonization, and
18 you ordered antibiotic therapy for her?
19 A. Yes.
20 Q. And then -- and that was in April?
21 A. Uh-huh.
22 Q. In September, she had a full-blown infection,
23 correct?
24 A. Well, I'm not sure of the term "full-blown,"
25 there was a urinary tract infection.
55
1 Q. I think you said it was significant.
2 A. Number of white cells, a number of significant
3 as opposed to insignificant, which would lead you in a
4 different direction.
5 Q. Well, I understand you are distinguishing it
6 from a colonization.
7 A. Okay.
8 Q. In the sense that she had progressed to an
9 infection as opposed to the colonization that she had
10 exhibited earlier?
11 A. Right.
12 Q. Okay. So two urinalyses, two abnormal
13 readings. Both times she got MRIs, right?
14 A. Yes.
15 Q. Is there any reason you didn't do a follow-up
16 urinalysis after April to make sure you killed off the
17 bacteria?
18 A. Yes. It's generally not recommended.
19 Q. How would you know that the antibiotic that
20 was given to her in April was ineffective and in fact
21 she has had an infection this whole time?
22 A. Along with the urine culture, you could order
23 an antibiotic study and that study tells you
24 specifically whether the antibiotic that you ordered is
25 bactericide, which kills the bacteria. Generally, these
56
1 antibiotics are in very high concentrations in the
2 urine.
3 Q. So you're confident that you killed off this
4 bacteria in April?
5 A. Yes, based upon that information. And I think
6 that you will find when you talk to experts that in
7 urinary tract infections, they would not recommend a
8 follow-up urine culture.
9 Q. When did you -- when did her most recent
10 urinary tract infection start?
11 A. I don't know if I could answer that question
12 to tell you what date that was. But the nurses did note
13 that there was some increase moaning, they were
14 concerned to be problems. So when you have changes like
15 this, it would be appropriate to check urine.
16 Q. Now, this urinalysis, this most recent one
17 that detected the infection, was pursuant to court
18 order, right?
19 A. Yes, it was pursuant to court order.
20 Q. All right. As far as her annual physical, do
21 you order a urinalysis usually?
22 A. Yes, we would perform a urinalysis. Not
23 necessarily for infection, but to look for other
24 problems or metabolic problems.
25 Q. Albumin is related to liver function, isn't
57
1 it, or kidney function?
2 A. Yes. Her albumin reading was abnormal.
3 Q. What would that abnormal reading indicate to
4 you?
5 A. The abnormal albumin?
6 Q. Yes.
7 A. Well, first off, it would be malnutrition, and
8 there was no evidence of malnutrition. And my thought
9 was that since it was borderline and had been borderline
10 in the past, that this was indicative of someone with
11 very low muscle mass, that she has. She has not moved,
12 so her muscles are all shriveled. They are essentially
13 scar tissue.
14 Q. Her muscles are scar tissue.
15 A. Well, they have atrophied.
16 Q. They have atrophied, haven't they?
17 A. Yes, they have.
18 Q. Would physical therapy help that?
19 A. If you continue to move the muscles.
20 Q. Would she --
21 A. If there's no innervation to the nervous
22 system through the muscles, it won't help.
23 Q. Did she get range of motion therapy?
24 A. She should have range of motion therapy. And
25 not having read the observation, I'm assuming it's been
58
1 done.
2 Q. What would range of motion therapy consist of?
3 Can you describe it for the court?
4 A. Well, I could describe it briefly. Physical
5 therapy consists of -- first, you very slowly move the
6 hands, wrist, shoulders to the point where it might
7 cause some discomfort and then relax it. And that's the
8 range of motion they're able to perform on Terry.
9 Q. Because of her contractures?
10 A. That's correct.
11 Q. You're not sure they are doing that though?
12 A. Yeah, they are.
13 Q. You do know that for sure?
14 A. Not how often and what extent. I would have
15 to review the records and the nurses' notes.
16 Q. How is it that you are sure she is receiving
17 range of motion therapy?
18 A. Because when I examined her, there would be
19 findings that would suggest, you know -- if you're not
20 moving them, as you might find in someone that is not
21 eating properly, that would be an indications that
22 suggesting that the care was taken in the proper matter,
23 that they were not moving the limbs in certain areas.
24 In Terry, you do not see that.
25 Q. Now, is it safe to say that the lab work Terry
59
1 has had done this year pursuant to court order is an
2 unusual amount of work in terms of your care of her?
3 A. There were tests which I wouldn't normally
4 order unless there was some suspicion. And, yes, I did
5 those tests in addition to routine care.
6 Q. So this year she has received more blood work,
7 urinalysis, and so forth, than in any other year under
8 your care?
9 A. I could tell you there were some additional
10 tests that were performed.
11 Q. Additional?
12 A. Yes. You know, the court order was, you know,
13 consistent with the time that I had. The interesting
14 thing was that I had just seen her and George called me
15 and told me that these are the tests we needed, and I
16 had no real problem ordering these extra tests because
17 it was just part of the examination. There was some
18 additional blood tests, endocrine tests, you know, which
19 I would not have requested.
20 Q. So twice a year you order blood work to be
21 done on her?
22 A. Yes.
23 Q. You do?
24 A. Yes.
25 Q. And twice a year you do a urinalysis?
60
1 A. I have been doing the urinalyses when there
2 are symptoms. So the urinalysis may be done more often
3 than twice a year.
4 Q. Is she anemic right now?
5 A. No, she is not.
6 Q. What's her hemoglobin reading on that test?
7 A. In the Exhibit 2, the blood count is not
8 recorded.
9 Q. Was the hemoglobin count not part of that?
10 A. It's not on the exhibit, so I could not give
11 you the exact number. The test was done but not
12 recorded in the exhibit. This shows that the report
13 says the test was completed. But flipping through, I
14 don't have the report, so I could not tell you exactly
15 her hemoglobin. But, I was told it was normal.
16 Q. So the report simply says that they did the
17 test?
18 A. The test. And I receive reports over the
19 phone, as I haven't been in this facility since. The
20 records are kept in the facility, so I received a report
21 over the phone. And the nurse told me that the white
22 count of the hemoglobin were within the normal range and
23 there was one very slight abnormality, which was of no
24 concern.
25 Q. And that's the albumin?
61
1 A. Yeah. That would be the albumin.
2 Q. Isn't her vitamin B-12 deficiency slightly
3 off, also, in that same report?
4 A. The vitamin B-12 is 1,515. It should be
5 somewhere under 200.
6 Q. Reference range is normal, 4.0, to, looks
7 like, 22 nanograms per milliliter.
8 A. It says in the -- okay. You may not be
9 familiar with this report, but on the top, the third
10 line laboratory it says "vitamin B-12 level." And if
11 you read across it says 1,515-H, H being high. If you
12 go a little further, it references "reference range 211
13 to 911."
14 Now, if you look down to the bottom of the
15 page, they explain it further. The normal range to
16 intermittent range is 106 and a deficient range of less
17 than 159. So she is ten times what someone would be if
18 they were deficient. The folic acid, also, is high. As
19 I mentioned earlier, I concluded the borderline albumin
20 was not consistent with a deficiency stated.
21 Q. I can't quite make out the readings under
22 vitamin B-12.
23 A. FHS is folate. And then, under that, FHS,
24 vitamin B-12, and then folic.
25 Q. And you order these tests twice a year?
62
1 A. I order these tests --
2 MR. FELOS: Objection, Your Honor. That's
3 been asked and answered.
4 MS. ANDERSON: Not as to these specifics
5 tests.
6 THE COURT: She's just following up on the
7 tests.
8 THE WITNESS: I order all of the tests twice a
9 year.
10 BY MS. ANDERSON:
11 Q. Not all of them?
12 A. Not all of them, no.
13 Q. Now, she also had an unusual number of imaging
14 tests done, has she not?
15 A. Yes. I would say that there were certainly a
16 number of tests done in the years that I have been
17 treating her.
18 Q. Have you ever ordered a CT scan be done on
19 Terry other than pursuant to the court order?
20 A. No.
21 Q. Did you review a CT scan when she first came
22 under your care?
23 A. A CT scan of the brain.
24 Q. Of the brain. Okay.
25 A. I did not review the actual films, but I was
63
1 given a report from Dr. Mulroy at the time, her prior
2 treating physician.
3 Q. Have you ever reviewed her film?
4 A. No, I have not.
5 Q. Did you look at the film from the CT scan that
6 was done recently?
7 A. No, I have not.
8 Q. She also had a spec scan done. You are aware
9 of that, right?
10 A. Yes.
11 Q. Did you schedule that?
12 A. No, I did not.
13 Q. You left that to Mr. Felos or Mr. Schiavo?
14 A. Yes. I was not involved with the scheduling
15 of those tests or the ordering of those tests, and the
16 copy of those reports would go to Mr. Felos.
17 Q. You were out of the loop on that?
18 A. That's correct.
19 Q. Do you consider yourself particularly
20 qualified to read a CT scan?
21 A. Absolutely not.
22 Q. When Terry initially came under your care,
23 what was her diagnosis?
24 A. Chronic persistent vegetative state.
25 Q. And did you accept that diagnosis?
64
1 A. Yes, I did.
2 Q. Tell me what you did, if anything, to confirm
3 the diagnosis in your own mind to your own professional
4 standards?
5 A. I read the reports of the other physicians,
6 Dr. Barnhill, who I have a lot of faith in him, and my
7 own examination. And the findings were such that I felt
8 she met those criteria.
9 Q. And what did you consider those criteria to
10 be?
11 A. Her brain studies and brain wave tests showed
12 that she has a brain which is predominantly replaced by
13 spinal fluid.
14 Q. Whose report says that?
15 A. That's the report of the scan that I saw.
16 Q. The written report?
17 A. Yes.
18 Q. So you relied on that and relied on
19 Dr. Barnhill's report?
20 A. Yes.
21 Q. What else did you do?
22 A. I performed an examination.
23 Q. Tell me your findings from that examination.
24 A. I found that Terry had no appreciation of her
25 environment or purposeful movement.
65
1 Q. How did you determine that?
2 A. By examination.
3 Q. What did you do specifically?
4 A. Well, I used my voice to see if I could get a
5 response. I used my hand to put over her eyes to see if
6 there was a response to vision or visual threats. These
7 were some of the things that I did to determine if there
8 was a response. I also discussed with the caregivers
9 who work with her day in, day out -- as you know, my
10 time with her short -- and no one felt they were able to
11 have any response from her as far as an appreciation of
12 her environment.
13 Q. What else did you do?
14 A. Also we want to look for metabolic or other
15 conditions that may influence the neurologic stats,
16 depress the neurologic stats. The blood studies that
17 were done might suggest there were other conditions,
18 like her drugs, for instance, that would depress her
19 neurologic condition.
20 Q. So you read labs reports on her?
21 A. Yes.
22 Q. Did you check her reflexes?
23 A. Yes, I did.
24 Q. And were her reflexes in tact?
25 A. She had some spinal cord reflexes, brain stem
66
1 reflexes.
2 Q. Have you ever observed Terry in presence of
3 her mother?
4 A. No, I have not.
5 Q. How much time did you spend with Terry to
6 initially satisfy yourself that she was in a persistent
7 vegetative state?
8 A. The first time I was there I was probably
9 there for an hour.
10 Q. One hour?
11 A. Yes.
12 Q. And part of that time was spent reviewing
13 reports?
14 A. Right. I have to tell you that sometimes I do
15 make my notes -- I have private rooms, so I can make my
16 notes and sit there and observe her, review some records
17 and observe her again. So I can have more and more
18 contact.
19 Q. Did that occur on that occasion? The very
20 first time you were in the presence of Terry Schiavo
21 when you first examined her, did you sit with her for
22 one hour and observe her?
23 A. That's correct. That's why, as I mentioned to
24 you, to satisfy myself that, you know, her condition was
25 what everyone said it was.
67
1 Q. Well, what Dr. Barnhill said it was.
2 A. Well, I don't think there was anyone else who
3 disputes Dr. Barnhill.
4 Q. And Mr. Schiavo told you that his wife was in
5 a vegetative state?
6 A. I don't think he actually came out and used
7 those words to describe his wife's condition.
8 Q. How was it that it came out that you, as
9 opposed to all of the other physicians in Pinellas
10 County, were chosen to be her attending physician?
11 A. Maybe you can ask Mr. Schiavo. He is the one
12 who selected me.
13 Q. Did he come to you because of Dr. Barnhill's
14 recommendation? You said that Dr. Barnhill consults in
15 some of your cases.
16 A. Yes. I don't think that that was the case.
17 But, again, you know, I don't know what criteria he used
18 to select me.
19 Q. Okay. So in addition to using your voice and
20 putting your hands over her eyes and checking her
21 reflexes and reading reports, what else did you do to
22 satisfy yourself that she was in a persistent vegetative
23 state?
24 A. I felt that I was satisfied from that point.
25 I examined reports, discussed with the staff, reviewed
68
1 the records. I felt that she was in a persistent
2 vegetative state. She has not changed during the four
3 years I have taken care of her.
4 Q. And that's based on your quarterly visit with
5 her and observation?
6 A. That's correct. I just mentioned the last
7 time that I testified, I consented to the same thing.
8 So someone who had spent a lot of time going through all
9 of her extensive box of records in detail. I found in
10 one of the notes somewhere where a recreational
11 therapist pointed out to me the only thing in the record
12 that would suggest that she could appreciate her
13 environment.
14 Q. So in your mind, the appreciation of the
15 environment would be the key factor in determining
16 whether she was in PVS.
17 A. I think that's part of the criteria.
18 Q. What else?
19 A. I'm just talking about what the caretakers
20 know, and that was my point. So I just want to point
21 out that I had asked many people. But someone who
22 actually spent a lot of time on your side with respect
23 to this, that's the only information they were able to
24 bring to me and say, look, we will you read this.
25 Q. And that's, of course, assuming that the
69
1 medical chart is totally complete, right?
2 A. From your side, this is the only thing that
3 was brought to me to say, look, here's somebody who has
4 a different opinion.
5 Q. Now, have you ever tried to evoke a smile from
6 Terry?
7 A. I treat her, you know, as I would any other
8 patient, you know. I speak to her when I'm there as
9 another person. And I -- you know, when you're
10 examining someone you say, "I'm going to turn you to the
11 side, listen to your heart." So I would treat her like
12 any patient; not as someone who would not be able to
13 respond. In all of my visits, I have not appreciated
14 any response.
15 Q. Has it always just been you and Terry and,
16 perhaps, a nurse in the room?
17 A. Yes, sir, that's correct. Michael has been
18 there a couple times.
19 Q. Michael has been there?
20 A. Yes.
21 Q. But you have never observed her in the
22 presence of her parents?
23 A. No, I have not.
24 Q. You have never seen her in the presence of her
25 brother or sister, either, right?
70
1 A. No, I have not.
2 Q. The last time you saw her, did she appear to
3 be in any imminent danger of dying; was she in crisis?
4 A. No.
5 Q. You say that her condition is basically the
6 same?
7 A. Yes.
8 Q. Not deteriorating?
9 A. No.
10 Q. And that's since April of '98?
11 A. Yes; that's correct.
12 Q. Is her saliva suctioned on a regular basis?
13 A. I don't think that's been a problem.
14 Q. When you are with her --
15 A. I haven't seen a suction machine. They
16 haven't brought that to my attention that saliva was a
17 problem.
18 Q. So when you have been with her and observed
19 her, she has been swallowing her saliva?
20 A. You could assume that she was swallowing her
21 saliva. Saliva is made from stimulation or food or
22 objects in the mouth. Nothing goes in her mouth, so her
23 saliva production is probably less than a normal
24 person's. So in reference to the amounts of saliva she
25 would make is different in reference to a person in a
71
1 different situation.
2 Q. But regardless of whatever it is, she is
3 swallowing?
4 A. Yes.
5 Q. What is that name of the swallowing test that
6 is done?
7 A. The video swallowing.
8 Q. Right. Has that ever been done on her?
9 A. I don't have that information for you.
10 Q. You have not ordered it, anyway?
11 A. That's correct.
12 Q. Now, assuming somebody has the time, could she
13 be fed by mouth?
14 A. Well, the nurses are very concerned even with
15 oral care because of aspirations.
16 Q. Now, speaking to oral care. A dentist
17 examined her this year, right?
18 A. Yes.
19 Q. When was that?
20 A. That was maybe in April. It was around the
21 same time as my examination.
22 Q. Was that pursuant to court order?
23 A. I don't know if it was court ordered or a
24 suggestion was made.
25 Q. Was it related to this litigation, these
72
1 proceedings?
2 A. Perhaps. You know, all I know is that
3 George Felos asked me if she had a dental examination
4 recently, and I said I will check it out.
5 Q. Now, was the dental examination in April of
6 2002 the first dental exam she had received since you
7 have been her attending physician?
8 A. Probably not. I don't know what the
9 regulations cite. We're not governed by the same state
10 regulations as a nursing home. But in a nursing home, a
11 dental examination is required. So Terry would have had
12 such examination unless there was a refusal to have an
13 exam done.
14 Q. She would have had an annual dental exam if
15 she would have been in a nursing home, right?
16 A. Yes.
17 Q. And you are saying you are not sure if that
18 same statement applies to Hospice?
19 A. Right.
20 Q. So you are not sure if that applies?
21 A. Right. But I didn't go back into the record
22 to Palm Gardens to see if she had one. I guess,
23 obviously -- I noted what the findings were from the
24 dentist and those findings were not of concern. So what
25 it showed last year or the year before were not of
73
1 concern.
2 Q. Well, you are assuming it wasn't done last
3 year or the year before?
4 A. I'm not assuming anything at all. I'm saying
5 if she was at Palm Gardens, unless there was a refusal
6 to have an examination, it should have been done.
7 Q. Were you present during the dental exam?
8 A. No, I was not.
9 Q. Did the dentist recommend a deep cleaning?
10 A. I don't recall reviewing his report. If you
11 have it.
12 Q. Do you know if her teeth were cleaned this
13 year?
14 A. Her teeth were not cleaned this year as far as
15 I know.
16 Q. They were not cleaned by a dental hygienist as
17 a part of normal routine care?
18 A. Right.
19 Q. I'm talking about a dental hygienist. So you
20 know that her teeth were not cleaned; is that what you
21 are saying?
22 A. They were not cleaned by a dental hygienist.
23 Q. I don't know if I have that copy with me right
24 now.
25 MS. ANDERSON: Judge, I'm perceiving some
74
1 restlessness. Would you like to take a break,
2 court reporter?
3 THE COURT: I was going to go to 11:30, which
4 would be two hours. But we can break now if you
5 would like. How much additional time do you
6 anticipate spending with this witness?
7 MS. ANDERSON: Several more hours. Probably
8 two, three more hours. Two hours.
9 THE COURT: Okay. Let's take ten minutes now
10 and, obviously, we will break for lunch.
11 Now, Dr. Gambone, I'm going to have to
12 instruct that you during this break you are still
13 on the witness stand, figuratively speaking.
14 Please, don't talk to anybody except for, perhaps,
15 a bailiff or other court personnel, if you have
16 questions of where to go and so forth. Okay. We
17 will stand in recess for ten minutes.
18 BY MS. ANDERSON:
19 Q. Dr. Gambone, has Terry moved in a Gerry chair.
20 Does she sit in a Gerry chair instead of her wheelchair?
21 A. She sits in a specialized chair. I don't use
22 the term "Gerry" chair.
23 Q. What is a Gerry chair?
24 A. A Gerry chair is a particular brand of chair
25 which has a table at the waist level.
75
1 Q. Is it mobile?
2 A. Yes, a Gerry chair has wheels on it.
3 Q. Have you ordered that Terry not be taken
4 outside for fresh air?
5 A. If there is an order on the chart from me, I
6 don't recall such an order.
7 Q. There is no medical reason she can't go
8 outside?
9 A. That's correct.
10 Q. Do you know if she's been taken outside for
11 fresh air during the entire time you have been her
12 attending physician?
13 A. I do not know that.
14 Q. Would it surprise you if Terry laughed at a
15 funny story?
16 A. Yes.
17 Q. That would be something new for you?
18 A. Yes.
19 Q. Would that be inconsistent with your
20 diagnosis?
21 A. Yes.
22 Q. Would you be surprised if Terry smiled and
23 vocalized and turned her head toward her mother's voice
24 and face?
25 A. Yes.
76
1 Q. Would that be inconsistent with your
2 diagnosis?
3 A. Yes, if it was a response and not just a
4 random act.
5 Q. Right. Assuming that she heard her mother's
6 voice and smiled and turned her head and began
7 vocalizing.
8 A. Yes.
9 Q. That's something you have never observed?
10 A. No, I have not.
11 Q. Would it surprise you if she, say, raised her
12 leg on command?
13 A. Yes.
14 Q. Have you ever given her a command to raise her
15 leg?
16 A. I have, during my examination, said move to
17 the side, but there is no appreciation of a comment or
18 cooperation.
19 Q. Would it surprise you if she laughed in
20 response to piano music?
21 A. Yes, it would surprise me.
22 Q. And that would that be inconsistent with her
23 diagnosis?
24 A. Yes.
25 Q. Would it surprise you if she visually tracked
77
1 an object, a moving object, in front of her face?
2 A. Yes, it would.
3 Q. That's because you are not able to evoke that
4 response from her?
5 A. That's correct.
6 Q. What did you move in front of her face? What
7 object was it?
8 A. Terry would generally look to the right. Most
9 of her eye movements, looking and twitching to the
10 right. So on the right side I think there is something
11 that you said or did cause her to look to the right. If
12 you do it on the left, you're not going to get that same
13 response.
14 MS. ANDERSON: Move to strike. That answer as
15 not responsive, Your Honor.
16 BY MS. ANDERSON:
17 Q. My question, Doctor, was what object did you
18 use to get her to visually track?
19 A. I was talking about moving your body from one
20 side of the room to the other side of the room or to use
21 your hand.
22 Q. Has Terry ever turned her head toward you,
23 toward your presence during your ten-minute examinations
24 of her?
25 A. Not at me.
78
1 Q. Would it surprise you if she did?
2 A. Yes, it would.
3 Q. Now, does Terry require special nursing care?
4 A. Yes. I would say so.
5 Q. And have you given any instructions in that
6 regard?
7 A. Yes, she has instructions for her care.
8 Q. Have you given it?
9 A. Yes. It's called "orders." Physician's
10 orders of her care.
11 Q. What is the nature of her special nursing
12 requirements?
13 A. She has a feeding tube.
14 Q. And that requires special nursing care?
15 A. I suppose that someone could be trained to
16 give those feedings. A lay person could be trained in
17 the medical requirements of a feeding.
18 Q. A lay person could be trained to give what
19 feedings, the tube feedings?
20 A. Yes.
21 Q. Would a lay person be trained to spoon-feed
22 her?
23 A. That's not something that I would recommend.
24 Q. What presently is the state of Terry's
25 gynecological health?
79
1 A. It appears that she has regular menstrual
2 periods. Her last lab showed that the FSH was in the
3 range of normal for someone her age.
4 Q. What is that, the estrogen level?
5 A. Yes.
6 Q. What does the last pap smear show?
7 A. Last pap sheer was done prior to my evaluation
8 of her. Michael told me that in 1996, that she had her
9 last examination and that examination was normal.
10 Q. So she hasn't had a pap smear since 1996?
11 A. That's correct, in six years.
12 Q. What did her last mammogram show?
13 A. I don't know.
14 Q. Do you know if she ever had a mammogram?
15 A. Allow me to look at my report.
16 Q. Absolutely.
17 A. It may be indicated on there. My report
18 indicates that she's never had a mammogram.
19 Q. Does she have kidney stones?
20 A. Excuse me?
21 Q. Does she have kidney stones?
22 A. My report shows there is no history of kidney
23 stones.
24 Q. Have you checked for them?
25 A. Blood in the urine would be an indicator of
80
1 kidney stones. You would not routinely do the test for
2 kidney stones unless someone came down with symptoms or
3 blood in the urine.
4 Q. And you found no blood in the urine on this
5 last test?
6 A. I do not have the report of the urinalysis
7 with me, but there are occasions that blood is found in
8 the urine in small amounts, microscopic amounts,
9 associated with the catheterization process, that is a
10 tube in the bladder to collect the urine. That could be
11 also related to infection.
12 Q. Has she had her gallbladder removed?
13 A. According to my records, the gallbladder was
14 removed in 1994.
15 Q. Are their after-effects of the gallbladder
16 removal that you can detect?
17 A. Not that I'm aware of. She has had multiple
18 blood studies on liver function.
19 Q. Is that the albumin, this test?
20 A. Yes. The albumin is not necessarily, you
21 know, an indicator of liver problems.
22 Q. It's relating to liver function?
23 A. It could be related to many things in the
24 body.
25 Q. I think earlier you said it was related to
81
1 liver function.
2 A. I said that albumin is made by the liver. But
3 if you were to look for a test of liver function,
4 abnormality of albumin would be down on the list of
5 tests that you would look at to diagnosis a problem.
6 Q. So albumin is related to what other bodily
7 condition?
8 A. Malnutrition.
9 Q. Malnutrition. That's what you said. No other
10 thing?
11 A. No, there are other conditions that albumin
12 can relate to.
13 Q. What other conditions?
14 A. Overhydration. If someone were to drink
15 excessive amounts of water, that could affect the count.
16 It's a delusional effect, so to speak.
17 Q. What else, what other condition might explain
18 lower albumin?
19 A. If the body was making immunologic proteins
20 instead of -- there was a diversion of metabolism to
21 make inflammatory proteins, hemoglobins, that would take
22 away from the synthesis, that is the building of the
23 albumin. So in that case you would find the total
24 protein would be higher because there are total proteins
25 that the albumin would be lower in proportion.
82
1 Q. Do you believe that either of those conditions
2 would account for the lower albumin?
3 A. No, I don't.
4 Q. How acute is Terry's hearing?
5 A. I don't know.
6 Q. Do you know how acute her eyesight is?
7 A. She has no reaction to visual threat that I
8 could detect. What I'm doing is taking your hand and
9 putting it over someone's eyes, their reaction would be
10 to blink in response to that.
11 Q. Which eye did you cover, by the way?
12 A. I checked both eyes.
13 Q. I realize that you don't take the blood
14 pressure. But have you observed the nurse taking her
15 blood pressure?
16 A. No, I have not.
17 Q. Do you know, given the state of her
18 contractures, how they do it?
19 A. Yes. The nurse takes her blood pressure in
20 the leg because of the contractures.
21 Q. They put the cuff on the calf?
22 A. Yes.
23 Q. Is there any indication that Terry cannot have
24 a bowel movement?
25 A. Not that I'm aware of.
83
1 Q. To what extent have you relied on Mr. Schiavo
2 for her medical history?
3 A. I think that he has been a part of the medical
4 history. And the history that I obtained and the
5 information that I have given you here are pieces of
6 information that might assist me, along with the medical
7 records.
8 Q. So to the extent that you have information
9 that's not in the medical records, it comes from
10 Mr. Schiavo, pretty much?
11 A. Yes. I think the information outside the
12 medical record comes from Mr. Schiavo, yes.
13 Q. Have you ever interviewed the parents?
14 A. No, I have not.
15 Q. Have you ever met them at all?
16 A. Just to shake hands at one prior hearing, yes.
17 Q. Okay. Do you think Terry feels pain?
18 A. I think the word "feel" -- there is a reflex
19 action at the brain stem level which shows a response to
20 pain. But I don't think the "word" feel is the right
21 word.
22 Q. So she reacts to pain?
23 A. Yes, a physiologic brain stem reaction.
24 Similar to if you were to touch your finger to a hot
25 stove, you would pull your hand away before you realized
84
1 that you were burnt.
2 Q. So it would be sort of instantaneous. It's a
3 reflex?
4 A. It's a reflex, yes.
5 Q. If she appears to be in pain, then, for longer
6 than a second or two, would it be more accurate to say
7 that she is feeling pain?
8 A. I would not use the word "feel" for someone
9 without recognizable cognition. I don't think that's
10 the proper term.
11 Q. Do you order pain medication for Terry?
12 A. Yes, I do.
13 Q. Why, if she doesn't feel?
14 A. The nurses state that she moans from time to
15 time and this seems to be associated with her menstrual
16 period. They asked me to prescribe medication for her
17 menstrual period pain.
18 Q. To relieve pain?
19 A. Yes.
20 Q. But it's not for their benefit, is it?
21 A. It's to their benefit and for Terry's benefit.
22 Q. How is it for the nurses' benefit to medicate
23 Terry for pain; so they don't have to listen to her
24 moan?
25 A. I think that's a good answer.
85
1 Q. Now, that little summary that you used that
2 the brain will protect her hand from being burned on a
3 hot stove by causing you to jerk it away before it even
4 registers --
5 A. Yes.
6 Q. -- that it's hot.
7 A. Right.
8 Q. So that would indicate a very instantaneous
9 pain reaction pain reflex, right?
10 A. Yes. I think we are talking about many
11 reflexes that occur. In light of the reflexes, I just
12 described one of those reflexes to give you an idea of
13 something in your own world how you can relate to a
14 spinal reflex or some reflex that's lower than your
15 actual willful movement. That's all my remark was.
16 Q. It's not a precise analogy, is what you're
17 saying?
18 A. No, it's not a precise analogy. And I think
19 we have many other experts who we know in this area that
20 maybe could delve into that further.
21 Q. So if it were proven to your satisfaction that
22 she has a cognizant awareness of her environment, you
23 would be more comfortable saying Terry feels pain?
24 A. Yes.
25 Q. Have you ever witnessed her moaning, appearing
86
1 to moan in pain?
2 A. No, I have not.
3 Q. Has she ever made any sounds in your presence?
4 A. I do not recall her making any sounds.
5 Q. Would you say that Terry has lived longer than
6 might otherwise be expected given her condition?
7 A. No.
8 Q. Do you have patients who live longer?
9 A. No.
10 Q. Can you reconcile those two answers for me?
11 A. Yes.
12 Q. Would you do it?
13 A. Yes. I guess she is otherwise a physically
14 healthy woman who receives very good care. And it
15 wouldn't surprise me that she has been medically stable
16 up until this period of time.
17 Q. So barring removal of the feeding tube, she
18 could be expected to be to live on, right?
19 A. Yes.
20 Q. Have you ever had a patient just give up the
21 will to live and die?
22 A. Yes.
23 Q. Do you think if Terry had given up her will to
24 live, she would be dead right now?
25 MR. FELOS: Your Honor, I want to object.
87
1 That's supposing that she does have an expressive
2 will, which is what we are here to determine.
3 MS. ANDERSON: He can express his opinion on
4 it.
5 THE COURT: I will allow him to answer the
6 question.
7 THE WITNESS: Could you repeat the question,
8 please?
9 BY MS. ANDERSON:
10 Q. Sure. If Terry had lost her will to live, do
11 you think she would be dead now?
12 A. I don't know.
13 Q. You're not sure?
14 A. I really didn't know her as the person she
15 once was.
16 Q. Well, the will to live is a documented medical
17 phenomenon, is not it?
18 A. A living will, did you say?
19 Q. The will to live, desire to survive.
20 A. Yes, it is.
21 Q. You have probably encountered it a fair amount
22 in your practice, have you not?
23 A. Yes, I have.
24 Q. When patients give up the will to live, what
25 do they do? How can you tell it's their position?
(Message over 64k, truncated.)
|
"Lisa Ruby" <Commissioned@...>
vesselofmerc...
 Offline
 Send Email
|
Having problems with message search?
Fill out this form to ensure your group is one of the first to be migrated to the new message search system.
