1 STATE OF WISCONSIN CIRCUIT COURT WINNEBAGO COUNTY ----------------------------------------------------------- 2 LOYAL L. BERG and CASE NO. 00 CV 376 CHERYL A. BERG, 3 Plaintiffs, 4 DEPOSITION OF and JAMES E. CAULEY, M.D. 5 20th of November, 2000 MIDWEST SECURITY ADMINISTRATOR, 6 INC., and EMPLOYERS HEALTH INSURANCE COMPANY, 7 Subrogated Plaintiffs, 8 -vs- 9 JAMES E. CAULEY, M.D., ABC INSURANCE 10 COMPANY and WISCONSIN PATIENTS COMPENSATION FUND, 11 Defendants. 12 ----------------------------------------------------------- DEPOSITION OF JAMES E. CAULEY, M.D., otherwise 13 than as a witness upon the trial, before COLLEEN REED, a Registered Professional Reporter and Notary Public, in 14 and for the State of Wisconsin, under and pursuant to Section 804 of the Wisconsin Statutes and the acts 15 amended, at the offices of SAGER, COLWIN, PAVLICK & ASSOCIATES, S.C., 201 South Marr Street, Fond du Lac, 16 Wisconsin, on the 20th day of November, 2000, commencing at 2:00 p.m. and concluding 4:30 p.m. 17 A P P E A R A N C E S 18 LAW OFFICES OF JOHN C. CABANISS, by 19 JOHN C. CABANISS, ATTORNEY AT LAW 250 East Wisconsin Avenue, Suite 725 20 Milwaukee, Wisconsin 53202-4205 appeared on behalf of the Plaintiffs. 21 HALE & WAGNER, S.C., by 22 CHRISTOPHER T. HALE, ATTORNEY AT LAW 205 East Wisconsin Avenue, Suite 300 23 Milwaukee, Wisconsin 53202-4207 appeared on behalf of the Plaintiffs. 24 25
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1 SAGER, COLWIN, PAVLICK & ASSOCIATES, S.C., by STEVEN P. SAGER, ATTORNEY AT LAW 2 201 South Marr Street Fond du Lac, Wisconsin 54935 3 appeared on behalf of James E. Cauley, M.D. 4 I N D E X 5 EXAMINATION BY: PAGE Mr. Cabaniss 3 6 7 EXHIBITS: MARKED REFERRED 1 - photocopy of office folder 52 52 8 2 - Office chart 52 52 9 3 - Letter to Dr. Cauley from Dr. Segura 52 52 10 4 - Drawing 61 61 11 12 MATERIAL REQUESTED: PAGE None 13 14 QUESTIONS FOLLOWED BY INSTRUCTIONS NOT TO ANSWER: None 15 16 (Originals of Exhibits 1-4 are attached to the original transcript and photocopies are attached to copies of the 17 transcript) 18 (Original transcript supplied to Mr. Cabaniss) 19 20 21 22 23 24 25
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1 TRANSCRIPT OF PROCEEDING 2 JAMES E. CAULEY, M.D., having been first duly 3 sworn, was examined and testified as follows: 4 E X A M I N A T I O N 5 BY MR. CABANISS: 6 Q. What is your name, please. 7 A. James Edward Cauley. 8 Q. Dr. Cauley, would you describe for me what happened 9 when Mr. Berg's ureter was severed on 10 September 10, 1999? 11 A. In the process of pulling the stone down from his 12 kidney, it became obvious the basket would not come 13 out, that something was amiss in terms of sliding the 14 fragment out of the ureter. In an attempt to visualize 15 it, I could see it or come close to seeing it, but I 16 couldn't get it to move. At that point I put some 17 contrast back through the scope and the contrast would 18 leak into the area around the outside of the ureter and 19 I knew the ureter had been separated. 20 Q. Now, I notice that your operative note for that 21 procedure, which took place on September 10th, '99 was 22 actually dictated on September 26th, '99. 23 A. I have forgotten. When was it done? 24 Q. If you want to take a look at any of these. 25 A. That's okay. It was dictated after the operation. It
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1 wasn't dictated immediately at the end of the 2 procedure. It was dictated on a different day. It's 3 not uncommon I will do that, particularly if I'm tired 4 or it's busy or it's late, I will just dictate then off 5 the hospital chart. 6 Q. Do you have your office chart or chart record? 7 MR. SAGER: I don't know your statement was 8 correct. I think it looks like the surgery -- Oh. 9 Yes. 9-10. 10 MR. CABANISS: Right. 11 MR. SAGER: Dictated 9-26; is that right? 12 MR. CABANISS: Correct. 13 Q. You indicated, I believe, and I'm not going to try to 14 put words in your mouth at all, Doctor, so if I 15 misstate something, just stop me, but is that a typical 16 amount of time for you between surgery and when you 17 dictate? 18 A. It can vary. I have had them -- I don't think they can 19 go much longer than a month because we have to have 20 them done by the end of the month according to the 21 hospital bylaws. 22 Q. Any particular reason why in this case you waited from 23 September 10th until September 26th to dictate -- 24 A. No. 25 Q. -- that note?
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1 A. I just waited until I was near suspension on hospital 2 records and I went in and did all the charts I had to 3 do. 4 Q. Did you discuss how you were going to dictate that 5 particular note with anyone? 6 A. No. 7 Q. Are there any other prior versions of it that were 8 written out or created in any form? 9 A. No. 10 Q. As I understand what you said, you actually dictated it 11 at the hospital on the 26th; is that correct? Yes? 12 A. Yes. 13 Q. Say yes for the court reporter. 14 A. I'm sorry. 15 Q. Not for me. If you don't want to say yes, but if you 16 want to say yes, you have to say it. 17 Was that into the hospital dictating system? 18 Did you have your own dictaphone? 19 A. Hospital dictating system. 20 Q. How does that work -- 21 A. Probably. 22 Q. -- at Mercy? 23 A. At that time they were in the old hospital, it would 24 have been dictated in the medical records department 25 on line 2675.
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1 Q. Would you describe for me the instruments that you were 2 using during the operative procedure on September 10th? 3 A. One is a set of cystoscopes, straight medical scopes, 4 probably a 21 French in size with a 30-degree lens. A 5 flexible grasping forceps and then a flexible 6 ureteroscope, along with the stone basket and a laser 7 fiber. 8 Q. What type of stone basket did you use? 9 A. Oh, gosh. I have forgotten the technical name of it. 10 I should know that. Let me think a minute, see if I 11 can come up with it. It has a specific name. 12 MR. SAGER: Are you asking manufacturer or are 13 you asking -- 14 MR. CABANISS: The specific name of the 15 basket. I mean as I understand it, these things have 16 medical -- 17 A. They all have different names. 18 MR. CABANISS: -- names, so however he would 19 describe it in describing it to another doctor. 20 A. There is a very specific name for it. I can't remember 21 it off the top of my head. 22 Q. Do you know whether it was Dormia? 23 A. It wasn't Dormia, no. When that textbook was written, 24 this basket didn't exist. This basket has been 25 developed I think within the last year, actually within
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1 the last two years, because this operation was a year 2 and a half ago now. 3 Q. Do you know who the manufacturer of the stone basket 4 was? 5 A. I think it's manufactured by Cook. I could find out. 6 I could call. 7 Q. If you would let your attorney know, Mr. Sager. 8 A. It's a fair question. I apologize. It's not in the 9 operative report, I suppose. 10 Q. Go ahead and take a minute. 11 A. I should know that. 12 MR. SAGER: Off the record. 13 (Discussion held off the record.) 14 MR. SAGER: Go back on. 15 MR. CABANISS: Sure. 16 MR. SAGER: Wait for a question before you 17 answer. 18 Q. You don't have to. No, I'm just kidding. I'm going to 19 be learning to say some of these words today or 20 hopefully trying, so forgive me if I'm mispronouncing, 21 but the flexible ureteroscope? 22 A. You have got it. 23 Q. How would you describe that? I mean does it have a 24 name or a manufacturer? 25 A. One is made by Stuarts. Another is made by Olympus.
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1 Q. Do you know which one you were using on that day? 2 A. Probably the Stuarts. There were 7 French 3 ureteroscopes. 4 Q. What is the diameter of that scope that you used on 5 September 10? 6 A. Seven French. 7 Q. And what does 7 French mean? 8 A. Seven millimeters in circumference. 9 Q. So when it's seven millimeters in circumference, what 10 does that translate into in terms of diameter? Pi B? 11 Is that right? I've forgotten my math. 12 A. I don't know. 13 Q. Okay. You indicated that this stone you were 14 attempting to remove -- Let me start over. I don't 15 want to testify, but where was the stone when you 16 placed it or snared it in the basket? 17 A. The lower pole of the renal pelvis. The bottom of the 18 kidney. 19 Q. Did you visualize it before you snared it or basketed 20 it? 21 A. Yes. Yes. 22 Q. Would you describe your recollection of your 23 observations about the stone when you observed it? 24 A. It was a fragment off a larger stone we had already 25 broken up. We could easily see it, slip it into the
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1 basket. Could visualize a stone out of the end of the 2 scope, and then start to slide the scope backwards 3 along the ureter. 4 Q. The type of basket that you were using, once you snare 5 a stone, can you unsnare it? 6 A. Yes. 7 Q. What observations did you have of the stone that you 8 snared regarding its size relative to the size of the 9 scope? 10 A. I thought it was the same size as the scope. 11 Q. At some point did you realize that it was larger than 12 the scope? 13 A. Only after the ureter had been damaged when I 14 physically had the stone so I could see it. 15 Q. Describe for me your physical observations of the stone 16 that was involved in the ureter's being severed. 17 A. It was a nice smooth, round fragment. When I first saw 18 it, it was at the time -- when I could physically hold 19 it was after we made the incision to repair the 20 ureter, and it was still in the basket at that point. 21 Q. Did you ever measure that stone? 22 A. No. 23 Q. You have reviewed the medical records and there is a 24 pathology report of a stone that indicates it was 25 1.9 centimeters?
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1 A. Correct. 2 Q. Is that the stone that was involved in this? 3 A. Correct. 4 MR. SAGER: .9 centimeters? 5 THE WITNESS: 9 millimeters. 6 A. .9 centimeters is the same as 9 millimeters. 7 Q. .9 centimeters. 8 MR. HALE: If it was nine centimeters, we're 9 going home right now. 10 MR. SAGER: I would agree. 11 Q. If you had, when you first visualized the stone, had 12 observed that it was larger than the scope, would you 13 have tried to remove it? 14 A. No. 15 Q. Why not? 16 A. I don't think I could get it out if it was larger than 17 the basket. I wouldn't want to try. 18 Q. What was your understanding as of September 10th, 1999 19 of the potential risk in removing a stone from the 20 kidney through the ureter? 21 A. Either not getting the stone out, causing 22 infection, causing bleeding or damaging the ureter. 23 Q. What are the ways that you understood the ureter could 24 be damaged? 25 A. Can either have a hole poked into it, be perforate.
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1 You can have a tear down the side of it. You can have 2 a linear tear. It can be separated. 3 Q. Would you have attempted to remove that stone from 4 Mr. Berg if you had known it was 9 millimeters? 5 A. No. 6 Q. Before you attempted to remove the stone that severed 7 Mr. Berg's ureter, had you removed any other stones 8 that day? 9 A. We had taken out I think four or five stone fragments. 10 Q. Were all those stone fragments sent to pathology? 11 A. I don't know. 12 Q. One of the reasons I ask, I don't know if you are 13 familiar, but in the chart I see two reports from 14 pathology on stone fragments, but I don't see any 15 others, and I guess do you know why that is? 16 A. The fragments we had taken out may have been lost, if 17 you will, in the heat of battle in trying to repair 18 Mr. Berg's torn ureter. I would not -- it would not 19 have been important to me to save fragments I had 20 already removed for analysis later on. We already knew 21 his stone composition. 22 Q. When you say stone composition, what do you mean? 23 A. What is was made out of. It was a calcium oxalate 24 stone, I believe. 25 Q. How did you know that?
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1 A. I think he has had an analysis done. 2 Q. When you do the type of endoscopic procedure you were 3 performing on Mr. Berg on September 10th, can you film 4 that? 5 A. It could be filmed. It could be videotaped. 6 Q. Did you film it? 7 A. No. 8 Q. Have you filmed any -- 9 A. No. 10 Q. -- such procedures? 11 A. No. There's not a VCR. There is no technology in the 12 cysto room to do it. 13 Q. Have you ever worked at a facility where you did have 14 that technology? 15 A. No. Yes. Yes. I guess I have. When I was at 16 Froedtert in training. Not this specific 17 procedure, but we did make a videotape on doing them 18 percutaneously. 19 Q. When you say you were visualizing the stone fragments, 20 would you describe for me mechanically how that worked? 21 A. There's a camera on the end of the scope. There's a TV 22 screen that we can see the video image on and right 23 next to that video image is also a fluoroscopic image. 24 An x-ray image. 25 Q. Is that x-ray image recorded in any way?
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1 A. Yeah. There are records kept of it depending on which 2 ones the x-ray technologist chose to develop, and I was 3 not able to review those ahead of time. The x-rays are 4 not in the hospital. They are signed out to Dr. Otto 5 in Milwaukee. 6 Q. Dr.? 7 A. Otto -- Dr. Boxer. 8 Q. Dr. Boxer. And he does have those films. 9 A. I wish he'd send them back. He's been asked to 10 repeatedly. 11 Q. Before you removed the 9-millimeter stone fragment, did 12 you look at the fluoroscope image of that fragment? 13 A. We look at it as we are removing it, during the process 14 of removing it, before and after. 15 Q. Did you look at it before you snared the stone in the 16 basket? 17 A. Sure. We are watching it continually almost throughout 18 the case. Not all the time, because we don't want too 19 much x-ray time, but we are taking spot films 20 continuously to see what's left and where it is. 21 Q. Does that x-ray reveal the exact size of the stone? 22 A. No. There's magnification involved in the x-rays. 23 Q. How did you on that day use the x-ray or fluoroscope to 24 evaluate the size of the stone before you attempted to 25 remove it?
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1 A. I would compare it on the video image with the size of 2 the scope as well as I could, but they are fuzzy. They 3 are not pictures like you get with a 35-millimeter 4 camera. Just looking at it and where we started at and 5 where we were in that process, how small the piece was 6 that we ended up with. 7 Q. I'm sorry. 8 A. That doesn't make sense, does it? 9 Q. No. I don't mean to tell you it doesn't, but I don't 10 understand. If you could explain. 11 A. Well, having in your mind the size of the stone that 12 you started with and the stone is getting smaller and 13 smaller and smaller as the case progresses, what are 14 the size of the pieces related to what you started with 15 and the size of the scope, and that's how I decided it 16 was small enough to remove. 17 Q. So as I understand it, the specific 9-millimeter stone 18 that severed Mr. Berg's ureter, what you were doing, 19 first of all, you would look at the TV screen and you 20 were comparing on that screen the size of the scope 21 versus the size of the stone. Correct? 22 A. Somewhat, yeah. It would be the size of the scope 23 versus the size of the stone versus the size as we 24 started and how much we have knocked off of it and how 25 much we have broken it up.
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1 Q. How did you factor in what the size of the stone was 2 initially and how you had broken it into your decision 3 that that particular stone was of appropriate size to 4 remove? 5 A. I guess I don't understand. It would just be a 6 judgment. 7 Q. What judgment were you attempting to make? 8 A. We are going in circles. 9 Q. Yeah. 10 A. The judgment I would make is the size of the stone 11 compared to the end of the scope. 12 Q. And what I'm asking is, what does its prior size before 13 you fragmented it have to do with making your judgment 14 that that particular stone -- 15 A. Trying to take into account how much magnification is 16 there on the x-ray. What are we really starting with 17 when we started this procedure. 18 Q. Can you vary the magnification? 19 A. I cannot, no. All I can do is turn it off and on. 20 The technologist can, but I can't. 21 Q. Did you know what the magnification was on that day? 22 A. No. 23 Q. Who was the technologist who was in the room -- 24 A. I don't know. 25 Q. -- during this procedure?
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1 A. I don't know. I cannot recall. 2 Q. What is the role of the technologist here in this 3 procedure? 4 A. The x-ray technologist? Protects the equipment. Make 5 sure we don't hurt the patient by giving too much 6 x-rays or inappropriate fluorotypes. 7 Q. Did you have any discussion with the x-ray technician 8 or technologist about what the magnification was for 9 the -- 10 A. No. 11 Q. For either the fluoroscope or TV? 12 A. No. 13 Q. It would have been the same magnification on both, I 14 assume? 15 A. Um-hm. 16 Q. You have to say yes. 17 A. Yes. 18 Q. If that's correct. 19 Did anyone in the room at the time you were 20 doing this procedure voice any concerns about the size 21 of the stone you were going to attempt to remove? 22 A. Not that I can recall. 23 Q. What's the largest stone you would attempt to remove? 24 A. Seven-millimeter. 25 Q. Now, where does that number come from?
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1 A. Size of the stent that we had in Mr. Berg before we did 2 the procedure. Hopefully that would be the size his 3 ureter was dilated to and the stone could come easily 4 out. 5 Q. Now, as I understand it, the scope's smaller in 6 diameter than seven millimeters? 7 A. I imagine it's larger than seven millimeters. 8 Q. Oh. 9 A. They are advertised as 7 French ureteroscopes. But I 10 think if you measure them, they measure closer to 8 or 11 8 1/2. 12 Q. Have you ever measured them? 13 A. No. I have never measured them. 14 Q. Why do you think that? I'm not saying you are wrong or 15 meaning to imply that. Why do you think that is so? 16 A. I have it in the back of my head a conversation with 17 someone one time that they may be slightly larger than 18 what's been advertised. 19 Q. What's the size of the ureter before it's dilated? 20 A. Probably about two or three millimeters. 21 Q. How does the size vary from the proximal to the distal 22 ureter? 23 A. It's close to the same size through its whole length. 24 Q. What did you or how did you dilate Mr. Berg's ureter? 25 A. Originally Mr. Berg -- This is the second of Mr. Berg's
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1 operative interventions, as you know. Originally we 2 placed a wire up the ureter to push the stone out of 3 the way and placed a 7-inch French stent into the renal 4 pelvis. That was prior to his first procedure. His 5 first procedure was undertaken. The stone wasn't 6 completely fragmented. The same stent or very similar 7 stent was put back in. 8 Q. Why do you think the stone that severed Mr. Berg's 9 ureter was larger than you had previously thought? 10 A. I made a mistake. I misjudged the size of the 11 fragment. 12 Q. Why do you think you did? 13 A. It was just an error in judgment. 14 Q. After it happened did you have a conversation with 15 Mr. and Mrs. Berg where you told them what happened? 16 A. Certainly. 17 Q. And you told them you had made a mistake? 18 A. Told the family in the waiting room exactly what 19 happened. The stone fragment I tried to remove was too 20 large and I told Mr. Berg after he recovered from his 21 anesthesia. 22 Q. And you told Mr. Berg you shouldn't have tried to take 23 out that stone? 24 A. I told him it was too large. If I had known it was 25 that large, I wouldn't have tried to pull it out.
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1 Q. You referred to the ureteroscope as a 7 French, I 2 believe. Does that tell me who manufactured it? 3 A. I think Stuarts is the manufacturer. 4 Q. Oh. You did mention that. So if I went to another 5 urologist and described it as a 7 French Stuarts, they 6 would be able to show me what it is? 7 A. Yes. 8 Q. That's all I want to make sure is that I have the 9 terminology down. 10 A. When you ask that urologist -- 11 MR. SAGER: Only answer questions when they 12 are asked. 13 THE WITNESS: I was going to tell him -- 14 Q. Do you have any guidance for me on how to ask for it to 15 make sure I get it? 16 MR. SAGER: Now you can answer. 17 A. It's not a rigid scope, it's a flexible scope. 18 MR. SAGER: One of the rules is that you 19 answer questions that are asked. He can expand if he 20 wishes to. He may not have wanted to know that. 21 Okay. That is all right that you helped but -- 22 Q. Do you use rigid scopes to do this type of -- 23 A. Certainly. 24 Q. -- endoscopic procedure? 25 A. Not this particular. Actually I have, yes.
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1 Q. When would you use a rigid scope versus a flexible? I 2 would want a flexible scope used. I want that. 3 Clear, but when would you use a rigid scope? 4 MR. SAGER: If you will stick around, we may 5 have a rigid scope. 6 MR. CABANISS: I'm sure you would offer one. 7 A. If I can easily get it up into the kidney. 8 Q. Now, if I understand it from the records, this 9 particular stone before you started was a centimeter 10 and a half? 11 A. I can't recall. I don't know. 12 Q. But it was a large stone? 13 A. It was a fairly large stone. 14 Q. As you know, I believe the first operative procedure 15 you undertook was on September 3rd? 16 A. I would have to refer to the records. 17 Q. Or was it August 26th? Why don't you refer to the 18 records and take me through in a general sense the 19 operative procedures that were undertaken in treating 20 Mr. Berg's stone or stones that led up to the 21 September 10th procedure. 22 A. I don't know if they are all here. 23 (Discussion held off the record) 24 MR. SAGER: Take a minute. Review those. 25 You can get them in order. Those are records I have.
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1 They aren't very well put together in chronology. That 2 is the way they came from Mercy and they may not have 3 bothered to put them in order. 4 Q. Do you have a chart in your office, Doctor? 5 A. Yes. 6 Q. At some point -- 7 A. Here's a copy of mine. 8 Q. That is a copy of yours. 9 A. Yes. Do you have that? So we all have the same piece 10 of paper we are talking about, it's two pages. 11 Q. No. Or I don't recall. We will take a break at some 12 point and I will have that marked. 13 MR. SAGER: Can I look at it? 14 MR. CABANISS: We must have it, if Chris 15 submitted it. 16 MR. SAGER: Can I see it for a second? 17 Q. But I didn't know that was your office chart probably. 18 So -- 19 MR. SAGER: Off the record. 20 (Discussion held off the record.) 21 MR. CABANISS: Let's go back on the record. 22 Q. Go ahead. 23 A. August 27th, 1999 he had his original procedure. 24 During that time we placed a cystoscope into his 25 bladder, put some contrast back into his kidney so we
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1 could identify where the stone was. Manipulated a wire 2 past the stone and then over the wire placed a 7 3 French, 24-centimeter stent. Then after soft dilating 4 him with a stent, he was brought back to the operating 5 suite on September 3rd, 1999 where we removed the 6 double J stent, placed two wires into the kidney. Over 7 one of the wires placed a flexible ureteroscope. 8 Removed the wire and placed a laser fiber up and 9 attempted to fracture the stone. However, we got into 10 a little bleeding and some cloudiness from stone 11 fragments and we terminated the procedure because I 12 could not see exactly what I was doing through the 13 ureteroscope. So we removed the ureteroscope over a 14 wire, placed his stent back in place and said wait and 15 come back another day. Then on September 26th, 16 1999 -- 17 MR. SAGER: I think the date is wrong. 18 THE WITNESS: Sorry. 19 MR. SAGER: That's the date of the 20 transcription. 21 A. September 10, 1999, a week later, we returned, removed 22 the double J stent, replaced the ureteroscope along 23 with the second safety wire and fragmented the stone 24 with the laser again, if that's what you are -- 25 Q. On the 3rd, why was it that you discontinued the
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1 procedure on that day? 2 A. It was cloudy with stone dust. Saw laser fragmentation 3 of the stone. Some is vaporized, some is broken into 4 small particles, and also there was bleeding. It 5 mentions a clot. So there was a small clot. So we 6 didn't have a complete field of view. We couldn't tell 7 exactly what was going on, so we discontinued the 8 procedure. 9 Q. Before you undertook to treat Mr. Berg's kidney stones 10 in the way that you did, were there any other 11 alternative procedures that you considered or discussed 12 with him? 13 A. He could have had lithotripsy, see if you can spell 14 that, but it was contraindicated because of his 15 hemophilia. We could have placed then a percutaneous 16 nephrostolithotripsy, which is placing the telescope 17 directly into the kidney through the flank, but again, 18 the risk of bleeding was too great with a hemophilia. 19 We could have made an open incision and removed the 20 stone. We decided not to do that because of the pain, 21 discomfort, and the time off work, and the hemophilia, 22 the risk of bleeding with an open incision. We felt 23 that this approach had the least amount of 24 complications associated with it. 25 Q. Did you discuss Mr. Berg's hemophilia with anyone
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1 before these procedures were undertaken? 2 A. Dr. Bill Weber, his internist. 3 Q. Anyone else? 4 A. No. 5 Q. What, if any, guidance or recommendations did Dr. Weber 6 have? 7 A. He recommended that we give, I can't remember the name 8 of the product, we can find it if we have the entire 9 medical record available to us, but we gave him an 10 injection of a substance to help prevent bleeding. I 11 can't remember what it is. I would have to see the 12 chart in order to pull it up. 13 MR. SAGER: Off the record. 14 (Discussion held off the record.) 15 MR. SAGER: Go ahead. 16 Q. Had you prior experience removing kidney stones from 17 people who were hemophiliacs? 18 A. I think only once or twice in my career. Not very 19 often. 20 Q. Other than, you know, prescribing whatever medication 21 it was that you prescribed -- 22 MR. SAGER: Off the record. 23 (Discussion held off the record.) 24 Q. Were there any other precautions that you took or 25 steps that you took because of Mr. Berg's hemophilia?
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1 A. Just to inform his internist ahead of time. 2 Q. Did you discuss with Mr. Berg the fact that there was a 3 risk that removing a stone you could sever the ureter? 4 A. Sure. 5 Q. What did you tell him about that? 6 A. I would tell him in that case we would have to make an 7 incision to repair it immediately. We would not have 8 an option to wait. 9 Q. Did you discuss with Dr. Weber the fact that there was 10 a possibility of severing the ureter and discuss with 11 him the potential impact that Mr. Berg's hemophilia 12 might have? 13 A. No. 14 Q. Did you have any discussion with Mr. Berg about how his 15 potential hemophilia might factor in if his ureter was 16 to be severed? 17 A. I probably would not have gone into it in that detail. 18 Q. At that time did you give any thought or consideration 19 to that? 20 A. It's always in the back of your mind during your first 21 or the second operation. And the third because of the 22 bleeding we stopped because of the hemophilia. We 23 stopped the operation because of the bleeding that 24 occurred for fear of the hemophilia. I kind of flamed 25 out there. What else?
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1 Q. Did you have any thoughts as to how Mr. Berg's 2 hemophilia might factor in if you were to make a 3 mistake and sever the ureter in terms of potential 4 complications? 5 MR. SAGER: I object to the form of the 6 question. 7 You can answer. 8 A. Well, I knew if we had a problem, if we had to do 9 something, we would have to -- we would have to take 10 into account his hemophilia. We would have to give 11 fresh frozen plasma, cryoprecipitate, get his internist 12 involved as the expert in terms of how to take care of 13 the hemophilia. 14 Q. Any other thoughts that you had about Mr. Berg's 15 hemophilia before the procedure? 16 A. No. 17 Q. How far down the ureter were you when it was severed? 18 A. Mid portion. Maybe -- It's five or six centimeters 19 below the kidney. I'll say it that way. 20 Q. How long is the ureter? 21 A. About 24, 28 centimeters. 22 Q. I think we have somewhere in the record that it was 23 severed what, five to six centimeters? 24 A. That is what I recall. 25 Q. I hate to misspeak, since it's in the record. If you
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1 could find that for me. I certainly don't want you 2 going by my recollection. 3 MR. SAGER: If you can direct him to the part 4 of the record. 5 MR. CABANISS: Yeah. 6 Q. Here's the description in your operative report, 7 Doctor. I will ask you to assume this is in the 8 report. We visualized the last fragment. As we were 9 sliding it down the ureter, the ureter was separated 10 four centimeters distal -- 11 A. Thank you. 12 Q. -- to the left ureteropelvic junction. 13 A. Um-hm. 14 Q. So that would be four centimeters down from the kidney. 15 A. Essentially. 16 Q. And the entire length is about 24 to 28 centimeters? 17 A. Yes. These aren't exact distances. These are just 18 eyeballed. 19 Q. I understand. You would agree that is in the upper 20 one-third? 21 A. Certainly. Would not argue with that assessment. 22 Q. How common was it for you to remove kidney stones from 23 the kidney in the general way that you did with 24 Mr. Berg? 25 A. It's not that common. We would prefer to use the
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1 lithotriptor if we could. We do it when the 2 lithotriptor is ineffective or doesn't work. 3 Q. Describe for me the lithotriptor. 4 A. A lithotriptor is a machine that generates a shock wave 5 or pressure wave that fragments the stone. The 6 pressure wave is generated outside of the body, and 7 then focused on the stone fragment. 8 Q. How many times in a year would you estimate that you 9 remove a stone from the kidney? 10 A. Probably half a dozen. Eight, nine at most. 11 Q. What other circumstances lead you to try to remove them 12 from the kidney with the basket? 13 MR. SAGER: I'm sorry. I didn't understand. 14 Q. What other kinds of factor would lead you to -- I think 15 you indicated with Mr. Berg because of the hemophilia, 16 the judgment was that the shock wave treatment would 17 not be a good way to go, and I'm just trying to in a 18 general sense get a handle on what other clinical 19 indications there would be for removal from the kidney 20 of stones with a basket, as opposed to using the 21 lithotripsy or another method. 22 A. Some stones are too hard. The composition of the 23 stone, the stone won't break if the pressure waves 24 aren't hard enough. Sometimes there is too large a 25 stone volume, if that makes sense to you. There is too
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1 much stone within the kidney for the lithotriptor to be 2 able to break it all up in one or two or three 3 resettings. You can go in, remove more material with 4 the laser. You can only give so many shocks with the 5 lithotriptor, but the laser you can continue to go on 6 as long as you are not damaging the kidney. 7 The medical condition such as Mr. Berg's 8 hemophilia or other various bleeding disorders or 9 medical conditions that lead to bleeding disorders so 10 we can't use a lithotriptor. Pregnant women, you can't 11 do lithotripsy on. People that have a body habitus 12 that is too big. 13 Q. What is body habitus? 14 A. Too fat. Too heavy. They won't fit on the machine. 15 The hydraulics won't support them. And we run into 16 that. That's probably the major ones. 17 Q. And I understand you are just giving me an estimate of 18 the number of times you will go into the kidney per 19 year. When you gave me that estimate, were you giving 20 me that estimate of times where you actually would 21 snare the stones in a basket and remove them or are 22 there times when you go to the kidney, you use the 23 laser, but don't try to remove fragments with the 24 basket? 25 A. It would be a combination. We would go to the kidney.
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1 If the stone is small enough, we would pull it out with 2 the basket. If the stone is too large before the laser 3 we would use another instrument called an 4 electrohydraulic lithotriptor. Now with the laser we 5 use the laser technology because it's a little easier 6 to use. 7 Q. Prior to your experience with Mr. Berg, had you ever 8 had a similar experience where you had severed 9 somebody's ureter by removing a stone that was too 10 large? 11 MR. SAGER: Objection. Form and relevancy, 12 because of the innumerable comparisons that would have 13 to be made before there was some way to lead to a 14 discoverable answer. 15 But you can answer, if you can. 16 A. I one time doing rigid ureteroscopy got a stone 17 fragment hung up. I couldn't move it up or down. The 18 ureter wasn't damaged, but I couldn't move the stone in 19 or out. I had to make an incision and remove the stone 20 fragment. That's the only time. That I can recall, 21 that's the only time I can remember right now. 22 Q. And in that instance the ureter wasn't severed. 23 A. No. 24 Q. So this would be the only -- 25 A. This is the only time I have separated a ureter.
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1 Q. Doctor, I kind of skipped over it. I don't know if you 2 have a copy of your resume. 3 A. I haven't had a resume in ten years. 4 Q. Or Mr. Sager has it or has one. I'm going to go over 5 for a minute your background. 6 MR. SAGER: I think he is correct. The best 7 way to deal with it -- 8 A. I'm not going out looking for jobs. I would have no 9 reason to keep a resume. 10 MR. SAGER: Ask him his experience. I don't 11 think he provided one for me. 12 Unless you recall one. 13 A. I have had one. It would be 10, 12, 13 years old. 14 Q. That is okay. Where did you grow up? 15 A. My father was in the Navy. We moved constantly. Most 16 of where I grew up was Fort Wayne, Indiana. 17 Q. How did you get there in the Navy? 18 A. He retired. That is where we settled. 19 Q. I can tell you I was born in San Diego, grew up in 20 Norfolk, so I bet you can't guess what my dad did. 21 A. Born in San Diego. Lived in Norfolk for a while. 22 Lived in Cuba for a while. Lived in Great Lakes for a 23 while. Lived in Illinois for awhile. Wisconsin for a 24 while. 25 Q. Where did you graduate from?
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1 A. R. Nelson Schneider High School, Fort Wayne, Indiana. 2 Q. What year? 3 A. I don't know. I have no idea. 4 Q. Where did you go to college? 5 A. Cumberland College, which is Williamsburg, Kentucky. I 6 have a problem with remembering specific dates when I 7 graduated or remembering the names of streets. I 8 apologize, but I can't tell you. 9 Q. I'm just trying to get a general idea. What was your 10 degree in from Cumberland? What year did you graduate? 11 Sorry. I'm going to keep the heat on. 12 A. B.S. in mathematics and chemistry, and I can't tell 13 you what year I graduated, I'm embarrassed to say. 14 Q. What is your date of birth? 15 A. 2-4-55. 16 Q. Did you work anywhere between high school and going to 17 college? 18 A. No. It was continuous. 19 Q. Where did you go to school after Cumberland? 20 A. Indiana University School of Medicine. 21 Q. What year did you graduate from IU? 22 A. I'm going to guess 1976, but it may be 1975. 23 Q. Then where did you go for your -- 24 A. Medical College of Wisconsin in Milwaukee. 25 Q. For an internship and residency?
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1 A. Internship and residency. 2 Q. In? 3 A. The internship was in general surgery. The residency 4 was in urology. 5 Q. What year did you finish your residency in urology? 6 A. 1986. At least I remember that one. 7 Q. Do you have any board certifications? 8 A. I'm a fellow of the American College of Surgeons and 9 certified by the American Urologic Society. 10 Q. So that is two boards, if I understand? 11 A. Just one board. 12 Q. So -- 13 A. Just one board. 14 Q. Essentially you are board certified in urology. 15 A. In urology. 16 Q. Did you pass those boards the first time? 17 A. Yes. 18 Q. Do you know what the effective date of your board 19 certification was? 20 A. Gosh. I can't tell you. You can't take the boards the 21 first year you are in practice. You have to be in 22 practice 18 months before you can take them. So it 23 probably would be 1987. You are board eligible but 24 you're not certified until you take the written. 25 Q. Who did you train under at the Medical College? Who
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1 was the chief? 2 A. Russell Lawson. 3 Q. How many residents were there in urology? 4 A. Each year there were two residencies five years long. 5 Q. What did you do after your residency? 6 A. Came to Oshkosh, Wisconsin, and went into practice with 7 Dr. William Roberts. 8 Q. Are you still in practice with Dr. Roberts? 9 A. Dr. Roberts retired two or three years ago. 10 Q. What is the name of your practice? 11 A. We are currently the -- Let me think of it. Affinity 12 Medical Division. That's it. 13 Q. How do you practice in terms of your business form? 14 Are you a sole proprietor or service -- 15 A. We are employed by the Affinity Medical Group, which 16 is -- it involves the ownership of two hospitals and a 17 number of physician practices and a large 18 multi-specialty group. 19 Q. Are there any other urologists that work in the group? 20 A. I have essentially two close partners, Dr. Tuveson and 21 Dr. Jim Wright. 22 Q. How long have you been partners with Dr. Wright and 23 Tuveson? 24 A. Tuveson, two years. Dr. Wright, four or five years. 25 Q. What hospitals do you have privileges at?
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1 A. Theda Clark and Mercy Medical Center. 2 Q. How would you describe how much time you spend at each 3 of those hospitals? 4 A. All of the time spent at Mercy. 5 Q. What is the address for your office? 6 A. 2700 West Ninth Avenue, Suite 305, Oshkosh, Wisconsin, 7 54904. 8 Q. What is your home address? 9 A. 4491 South U.S. Highway 45, Oshkosh, Wisconsin, 54902. 10 Q. Are you married? 11 A. Yes. 12 Q. And what's your wife's first name? 13 A. Sheila. 14 Q. Do you have children? 15 A. Three children. 16 Q. How old are your children? 17 A. Nineteen, seventeen and fifteen. 18 Q. A fun age, huh? 19 (Discussion held off the record) 20 (Break taken) 21 Q. Doctor, I want to clarify a couple of things. Number 22 one, in terms of this particular stone that severed 23 Mr. Berg's ureter, that stone was breaking fine with 24 the laser, wasn't it? 25 A. Yes.
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1 Q. You referred to the fact before that some stones are so 2 hard that in essence you can't break them with the 3 laser. This wasn't one of those stones. 4 A. No. The stone would break. 5 Q. If you had realized when you were visualizing the stone 6 in the kidney that it was nine millimeters and larger 7 than the scope, what would you have done? 8 A. Released it from the basket, replaced the laser fiber 9 and broke it into smaller fragments. 10 Q. There was nothing unique about Mr. Berg's ureter that 11 predisposed him to have a tear of the ureter, was 12 there? 13 A. No. 14 Q. No kind of lesion or anomaly in the ureter that made 15 him more susceptible to a tear? 16 A. Not that I'm aware of. 17 Q. To your knowledge, is the reason his ureter tore the 18 size of the stone? 19 A. Yes. 20 Q. Any other reason that you can think of that the ureter 21 was torn, other than the size of the stone? 22 A. No. 23 Q. I want to go back for a moment. You visualized the 24 stone in the kidney. It's in the basket. You have 25 made the judgment that it is the same size as the
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1 scope, I believe you said. And then what do you do? 2 A. Slowly start to pull the stone in the basket and the 3 scope back all in unison while watching through the 4 scope, intermittently watching on the x-ray screen. 5 Q. And what's the first thing that happened that led you 6 to believe there was a problem? 7 A. It's hard to recollect that far ago. I guess just the 8 fact that the stone wouldn't move anymore. The basket 9 and the stone wouldn't move anymore. 10 Q. Before the basket and the stone wouldn't move, did you 11 have any indication there was a potential problem? 12 A. No. 13 Q. Describe for me the amount of effort or, if that is the 14 right way to ask it, that it takes to remove a stone. 15 A. Somebody told me, this may be hard to quantitate, but 16 somebody told me you shouldn't pull any harder than you 17 are going to pull on a four-pound test line and not 18 break it. Fishing line. 19 Q. Fishing line. 20 MR. SAGER: Sounds like there must have been 21 a urologist who was a fisherman. 22 Q. Before the stone got stuck and you couldn't pull it 23 anymore, did you exercise any greater effort than the 24 four-pound test? 25 A. Not that I can recall.
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1 Q. You don't recall thinking wow. This is difficult 2 pulling or there is something unusual, before you 3 became aware the stone was stuck? 4 A. No. 5 Q. How did you become aware the stone was stuck? 6 A. Again, because the scope and the basket wouldn't move. 7 Q. What is in your field of vision from the scope when you 8 are pulling the stone out, down? 9 A. You can see a short segment of the stone -- or the 10 stone basket. You can see the stone because it's right 11 against almost the length of the scope and a little bit 12 of the lining of the ureter. We would call it the 13 mucosa. 14 Q. Who was watching the scope with you? 15 A. Probably no one. 16 Q. The only reason I ask, you referred to we were watching 17 in some of your earlier testimony. That is why I just 18 asked. But to your knowledge it was just you? 19 A. The nurses could have been looking at it. They may not 20 have been looking at it. 21 Q. There were no other physicians in the room? 22 A. Not at that time, no. 23 Q. The only other physician in the room had been an 24 anesthesiologist? 25 A. He would have been in and out of the room
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1 intermittently. 2 Q. Do you know, was this a general anesthesia? 3 A. Yes. 4 Q. Did the anesthesiologist intubate Mr. Berg? 5 A. I'm sure they did. 6 Q. Or did the nurse anesthetist? 7 A. I can't tell you. 8 Q. Do you know what the general practice is? 9 A. Generally the nurse anesthetist would intubate him with 10 the anesthesiologist standing there. 11 Q. You don't recall specifically in Mr. Berg's case what 12 happened? 13 A. No. 14 Q. Describe for me again, I'm not trying to be repetitive, 15 I just want to make sure I understand it. When you 16 realized the stone was stuck, what did you do next? 17 A. I may not have the right order. I think I have the 18 right order. When I couldn't -- when I couldn't move 19 the stone, I injected contrast through the scope to do 20 a retrograde pyelogram. At that point I could see the 21 contrast was leaking out around the outside. I 22 attempted to get the scope back up the ureter and could 23 not. Then I did on the table an intravenous urographic 24 study. 25 Q. You have to slow down for her. I'm sorry.
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1 A. She is going pretty good. 2 Q. She's good. Slow down for me. Sorry. 3 A. I did an IVP on the table to try to define what was 4 going on with the kidney and the tube from the kidney 5 down to where the laceration and the separation was. 6 Q. Now, the first thing you did was inject the contrast? 7 A. I can't recall. It's been a little while since I did 8 it all. I may have tried to manipulate the scope up a 9 little bit, too. I'm not sure. I'm sure I tried to go 10 back up, see if I could get the stone to go up. If it 11 wouldn't come down, I would probably try to get it to 12 slide back up. 13 Q. That is what I wanted to ask. Do you know whether you 14 tried to slide it back up before you injected the 15 contrast? 16 A. I'm sure I would have. If it hung up, I'm sure 17 probably I would try to. 18 Q. When you say back it up, would that be pushing the 19 basket with the stone in it back up? 20 A. Yes. Back up to the kidney. 21 Q. Why did you do that? 22 A. I have had instances where stones have hung up where 23 you can't get them out, so I put it back in the kidney 24 to break it up into smaller pieces, to re-orient it, 25 try to get it tipped so it's a different direction.
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1 Try to get an advantage on getting the stone out. 2 Q. Where did the stone hang up relative to the tear? 3 A. Right at the site of the tear, when I made the incision 4 to repair it. 5 Q. When the stone hung up, and I know this may be 6 difficult because we are going back a couple years, did 7 it cross your mind that the stone might be too large? 8 A. Oh, sure. 9 Q. Describe for me what you recall about what you were 10 thinking when it hung up relative to the possibility of 11 the stone being too large. 12 A. I have either got part of the lining of the ureter 13 stuck in the basket and I have to release that, the 14 stone's too big, the size of the ureter won't permit 15 the stone to slide down through it, the scope is hung 16 up, there's a kink in the wire of the basket. That 17 would be about it, I suppose. 18 The stone could have tipped in the 19 basket, too, losing its orientation. Try to bring them 20 down so their smallest diameter is coming down. 21 Q. Do you agree that there's a greater likelihood of 22 injury to the ureter in removing the stone from the 23 proximal ureter rather than from the distal? 24 A. Yes. 25 Q. Why is that?
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1 A. The technology to get up to the proximal ureter, the 2 ureter near the kidney is harder to come by, number 3 one. You are working over longer distances. Why they 4 are not very far, if you would see it, if you would lay 5 it out on the table, you would say geeze. That is four 6 or five inches. 7 It's a long way to go inside. I tell people 8 it's like trying to tie your shoe laces with two 9 yardsticks. It's more finesse the higher you go. Less 10 room for mistakes. Structurally there is nothing 11 different about the ureter higher or lower. 12 Q. Were you trained in endoscopic procedures during your 13 residency? 14 A. I was trained so long ago that term was not around very 15 much. 16 Q. That is what I'm getting to. 17 A. Certainly. 18 Q. I'm not trying to imply you weren't trained. When 19 did -- 20 A. We were doing -- 21 Q. -- the endoscopic procedures come into being in terms 22 of as treatment? 23 A. We were doing these things during residency. At that 24 time flexible ureteroscopes did not exist. There were 25 only rigid scopes.
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1 Q. When did the flexible ureteroscopes come into being? 2 A. They have really come into their own over the last six 3 or seven years. They have gotten small enough to be 4 practical to work with. 5 Q. Have you been to any continuing medical education 6 seminars that related in any way to endoscopic 7 procedures? 8 A. Yes. 9 Q. Describe for me what you have been to. 10 A. The last one related to this that I can recall was in 11 Indianapolis, Indiana, Dr. Lingerman's course which 12 dealt specifically with this particular laser that we 13 used. It was probably three or four months before 14 Mr. Berg's procedure. 15 Q. Do you have any written materials from that course? 16 A. I may or may not. I would have to look through the 17 office. 18 Q. We are going to ask you to look for that. 19 A. I'll be happy to look for it. I don't know if I still 20 have it or not. I will take a look for it. 21 Q. Any other seminars, medical education programs you 22 recall having participated in that would have related 23 to endoscopic procedures? 24 A. Just the general urologic, the Wisconsin urologic, 25 Montana urologic I go to every year.
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1 Q. Why do you go to the Montana urologic? 2 A. I like to ski at Big Sky. 3 Q. At any of these programs have they discussed techniques 4 for removing kidney stones from the upper third of the 5 ureter or the kidney? 6 A. I cannot recall. I'm sure they have, because 7 Dr. Lingerman talked to one of them, one of the Montana 8 urologics he talked to. 9 Q. Who is Dr. Lingerman? 10 A. He is a urologist at Methodist Hospital in 11 Indianapolis. 12 Q. I assume he is well regarded in the field? 13 A. He is one of the stone gurus. Yes. 14 Q. Have you ever been involved in any other medical 15 negligence cases? 16 A. Yes. 17 Q. Tell me about that. 18 A. The one other time I was involved was at Froedtert 19 Hospital with Russell Lawson separating a ureter, 20 almost identical to this case, on an Iranian three 21 months after the hostages were taken at the U.S. 22 Embassy. 23 Q. Was that a kidney stone? 24 A. Yes. 25 Q. How was the ureter severed there? I'm not asking for
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1 details so much. 2 A. I think he tried to pull out -- I wasn't there during 3 the actual operation, I was -- had gotten the consent 4 and I did the H and P and went on vacation. Dr. Lawson 5 did the operation. I think he tried to pull out too 6 large a stone fragment. 7 Q. Was that with the rigid? 8 A. With the rigid scope, yes. Possibly 1985, I would 9 guess. But I can't recall what year the hostages were 10 taken. 11 Q. Well, I can just orient you. I can ask you to assume 12 that was about '79. 13 A. Maybe. 14 Q. Because it kind of did in Mr. Carter. 15 A. I may have the timing wrong. 16 Q. That's okay. 17 A. I just know he was an Iranian. We tried to be very 18 gentle with him. 19 Q. Is it recognized in the field of urology that poor 20 endoscopic visibility can lead to injuries? 21 A. Certainly. 22 Q. Are you aware of any urologists that have recommended 23 either in print or in any presentations you have 24 listened to not using endoscopy to remove stones from 25 the upper third of the ureter or the kidney?
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1 A. It is -- it would be in all the standard urologic 2 textbooks that are more than five years old. Five 3 would just be a general number. 4 Q. So I take what you're saying is that up until a certain 5 point the recommendation was not to use endoscopy to 6 remove stones from the upper third of the ureter or the 7 kidney. Correct? 8 A. Correct. 9 Q. That practice changed at some point? 10 A. When the technology for the flexible scopes came into 11 existence and the laser fibers were developed, 12 the risk versus benefit shifted. 13 Q. Do you know when that was? 14 A. I can't tell you specifically. It's still in the 15 process of shifting. 16 Q. How did you become aware of that shift and when did you 17 first become aware? 18 A. Dr. Tuveson, my newest partner, has educated me. In 19 fact his opinion is that -- 20 Q. What has Dr. Tuveson told you? 21 A. His opinion is that some, some authors nationally are 22 recommending stones be taken out endoscopically as the 23 primary method, avoiding lithotripsy. 24 Q. I believe you said Dr. Tuveson joined you two years 25 ago?
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1 A. Two or three. I can't remember which. 2 Q. Before he joined you were you using endoscopy to remove 3 stones from the upper third of the ureter or the 4 kidney? 5 A. Not very often. Only when I had to. 6 Q. When you say only when you had to, what do you mean? 7 A. Only when I was forced into a situation where I 8 couldn't get it out with lithotripsy, extracorporeal 9 lithotripsy, percutaneously. 10 Q. Could Mr. Berg, and I know you talked about this a 11 little bit, could his stone have been removed 12 percutaneously? 13 A. Certainly. 14 Q. And I believe you mentioned this, but why was it that 15 initially you opted for the endoscopy? 16 A. We felt the risk of bleeding from the percutaneous 17 procedure and gaining access to the kidney by the 18 radiologist or the risk from bleeding from me putting a 19 fairly large bore scope in his kidney was greater than 20 the risk of bleeding or injury from the ureteroscopic 21 procedure. 22 Q. Now, is that your analysis or did somebody else have 23 input into that? 24 A. No one else would have had input. 25 Q. So Dr. Weber wasn't involved in making a recommendation
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1 on endoscopy versus percutaneously? 2 A. No. 3 Q. Have you testified in any other medical negligence 4 cases other than perhaps the one you told me about with 5 Dr. Lawson and today? 6 A. What is the name of the thing we did. The medical 7 mediation. 8 MR. SAGER: No. That doesn't count. 9 Q. No. I mean testifying under oath -- 10 A. No. 11 Q. -- in any other matters. 12 A. No. 13 Q. You indicate in your Answers to Interrogatories that 14 you have had discussions with your partner, 15 Dr. Wright -- 16 A. Yes. 17 Q. -- about facts and circumstances surrounding Mr. Berg's 18 severed ureter. If you would tell me about your 19 discussions with Dr. Wright. 20 A. Dr. Wright was given a general outline of what occurred 21 to Mr. Berg so Dr. Wright could cover call I think the 22 weekend after Mr. Berg's -- Immediate weekend after 23 Mr. Berg's operation I was not on call. I think 24 Dr. Wright was. I could be in error, but Dr. Wright 25 had to cover call.
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1 Q. Anything else? How about Tuveson? 2 A. He would have been informed so he could cover call also 3 on Mr. Berg. 4 Q. Did you have any discussions with them about the stone 5 being too large and details or was it just that the 6 ureter got severed so here's the current status? 7 A. Just the ureter got severed. Here's the current status. 8 Q. Dr. Segura? 9 A. Um-hm. 10 Q. Who is that? 11 A. Joe Segura is a urologist at the Mayo Clinic. He is 12 also one of the stone gurus across the country. 13 Q. Tell me about your discussion with him. 14 A. I called Dr. Segura, outlined the specifics of the case 15 in terms of Mr. Berg having residual stone fragments, 16 the ureter had been severed and reapproximated and the 17 need for additional surgery in order to remove the 18 stone fragments. 19 Q. Did you have any discussion with him about how or why 20 the ureter was severed? 21 A. No. 22 Q. Same question of Dr. Weber. Any discussions with him 23 about how or why the ureter got severed? 24 A. Only in generalities. I would not have discussed that 25 with him.
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1 Q. Who is Dr. Lundberg? 2 A. Joel Lundberg is a hematologist, oncologist who we 3 asked to help with the hemophilia also. 4 Q. That was after? 5 A. I can't recall. To be honest, I can't recall. 6 Q. The operative procedure on August 27, '99, why was that 7 terminated? That was the initial. 8 A. We can't really do anything more than get him out of 9 the acute situation because the ureter is not dilated. 10 We really can't go up and manipulate the stone or try 11 to fragment the stone or remove the stone. We are 12 working through a small system. 13 Q. I'm just going to hand you this. This is a radiology 14 report and I will indicate for the record this is Bates 15 stamped 190. 16 When was that x-ray taken relative to the 17 endoscopic procedure being undertaken? 18 A. This says the exam date was 9-10-99. 19 Q. Right. Was that before you started the procedure? 20 A. Yes. Let me read this a second. This would have been 21 before we started. 22 Q. Would that have been before you used the laser on the 23 stone? 24 A. Yes. 25 Q. So we know that before you used the laser, we had a
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1 12-millimeter by 5-millimeter stone, approximately? 2 A. I would not have measured it -- 3 Q. Right. 4 A. -- to those specific sizes but approximately. 5 Q. How would you describe that size stone? Is that a 6 large stone? 7 A. It's a fairly -- it's not -- I would not call it a 8 large stone because stones that are large, 9 three-and-a-half, four centimeters in the kidney when 10 we deal with these. It's a fairly large stone. For a 11 ureteral stone it would be a big stone. 12 Q. When you say ureteral stone, one that has to come 13 through it? 14 A. Yes. 15 Q. For example, I believe on the August 27, '99, your 16 operative note, you referred to there being a large 17 stone in the left renal pelvis. When you use large 18 stone in that context, do you mean relative to being 19 able to take it out through the ureter? 20 A. Yes. 21 Q. Do you know how many fragments you broke that stone 22 into on September 10th? 23 A. No. 24 Q. Did you make any effort to try to visualize all the 25 fragments before you began taking them out?
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1 A. Quite honestly, I thought this was the last stone 2 fragment. I thought we were almost done except for 3 some very small pieces I could see in the bottom. 4 Q. By this being the last one, you mean the one that 5 severed the ureter? 6 A. Yes. 7 Q. One thing I want to make sure and do is have marked 8 your office notes, and perhaps if I can look at what 9 you're looking at, Doctor, and indicate for the record 10 your office notes that relate to -- 11 A. Previous -- No. Must be back. 12 Q. That relate to Mr. Berg are Bates Nos. 15 and 16; is 13 that correct? 14 A. I don't know what Bates number means. 15 Q. These stamped numbers down here. 16 MR. SAGER: I don't want to represent those 17 are the only two pages of his notes, Counsel. They are 18 part of your exhibit that was submitted. 19 MR. CABANISS: One of the things, just so 20 we're clear, one of the things I asked for in my 21 document request is Dr. Cauley's office charts and the 22 response was I will bring it to my deposition. 23 MR. SAGER: I thought he was going to do it. 24 THE WITNESS: I have it, if you want it. 25 MR. SAGER: Sure.
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1 MR. CABANISS: I want to take a look at it. 2 We want to make sure we have everything. 3 MR. SAGER: Okay. 4 (Exhibits 1-3 marked for identification) 5 Q. So Dr. Cauley, we marked as Exhibit 1 to your 6 deposition a photocopy of the folder that your office 7 chart is in. Correct? 8 A. Correct. 9 Q. Exhibit 2 are the notes within your office chart that 10 detail office visits? 11 A. Correct. 12 Q. And Exhibit 3 is a letter you received from Dr. Segura 13 at Mayo Clinic related to Mr. Berg. Correct? 14 A. Correct. 15 Q. I believe you indicated that when you were removing the 16 stone that severed Mr. Berg's ureter, you thought that 17 was the last fragment? 18 A. I did think it was the last fragment, yes. 19 Q. In the medical records later, I believe it indicates 20 there were some other stones that were found or 21 located? 22 A. Later on, yes. 23 Q. When was that? Were those found before he went up to 24 Mayo or was that after? 25 A. Before he went to Mayo.
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1 Q. Where were the stones? 2 A. At the level of where the repair of the torn ureter 3 occurred. 4 Q. How and when did they get there? 5 A. I can't tell you when. I don't know exactly. Other 6 than when we took the x-ray, that's where they are. 7 When they migrated down, I don't know. I'd have to 8 refer to the date on the x-ray. Again, I don't have 9 the x-rays. They are not available to us nor are all 10 the reports probably available to me right now. That's 11 the when. 12 How? They would just move down to the 13 area, the most narrow parts of the ureter and would 14 stop. 15 Q. From the kidney? 16 A. From the kidney. 17 Q. Do you believe those stones were in the kidney at the 18 time you did the procedure on September 10th? 19 A. Yes. They were existing stones. 20 Q. I guess that's what I was trying to ask. Were those 21 from the original stone -- 22 A. Yes. 23 Q. -- that you hit with the laser? 24 A. You would call them residual stone fragments. 25 Q. At any time after September 10th did you look at the
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1 x-rays that were taken during the procedure? 2 A. No. 3 Q. So -- 4 A. I don't think I have seen his original x-rays since his 5 operation. 6 Q. Did you look at the original x-rays during the 7 operative procedure? 8 A. I'm the one that took them, so I would have looked at 9 them. 10 Q. I guess I wasn't sure, since you referred to there 11 being an x-ray -- 12 A. Technician. 13 Q. -- technician there. 14 A. The way that machine -- Excuse me. I know you don't 15 want me to -- 16 MR. SAGER: That is all right. 17 Q. Explain how it worked. 18 A. The machine has a memory within it. The technician 19 will come back and print off selected films, whichever 20 he or she thinks is of value for radiographic 21 interpretation. It will keep fairly much a memory of 22 every time I step on the fluoroscopy pedal. Those 23 images aren't permanently saved. Whichever ones she 24 thinks the radiologist needs to interpret. Does that 25 make sense to you?
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1 Q. I think so. 2 A. It's kind of like her memory in her transcription 3 machine, except they don't save all the words. 4 Q. During the procedure you are not really using the 5 x-rays per se, you are going by what's on the actual 6 scope that you are looking at? 7 A. What is on the TV monitor, fluoroscopy. We're not 8 taking hard x-rays. Not taking films. 9 Q. The machine saves images whenever you hit the pedal, in 10 essence? Steve is shaking his head. 11 MR. SAGER: I don't think that is what he 12 said. 13 A. No. The machine saves the images. The technologist 14 will return to print the images on films that again she 15 thinks the radiologist needs to interpret. 16 MR. SAGER: My reason for shaking my head is 17 she might not print every one the machine saved. 18 THE WITNESS: She definitely won't. 19 A. The idea is to cut down on the cost of films. Now in 20 the future it will all go digital. There will be no 21 films at all. It will be saved to the hard drive in 22 the computer. 23 Q. Was it a she that was the x-ray technologist? 24 A. I have no idea. 25 Q. Did you have any discussion during or after this
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1 operative procedure with the x-ray tech about what 2 x-rays were going to be printed? 3 A. I cannot recall specifically. I may or may not have. 4 Sometimes we would give them guidance on which ones to 5 print. Oftentimes I will tell them print No. one, 6 print No. five, print No. ten. In this one I cannot 7 recall. 8 Q. You don't recall going back to look at any of those 9 x-ray images after the procedure. 10 A. I don't recall. 11 Q. If you had realized there were residual stones in the 12 kidney, would you have removed them on September 10th? 13 A. I would try to, yes. 14 Q. At any time after Mr. Berg's ureter was severed did you 15 look at any of the x-rays for the purpose of evaluating 16 whether or not any of them depicted the stone that 17 severed his ureter relative to the scope? 18 A. Can you -- I don't understand. 19 Q. I will rephrase that. 20 At any time after Mr. Berg's ureter was 21 severed, did you look at any of the x-rays to see what 22 they depicted in terms of the relative size of the 23 stone that severed the ureter compared to the scope? 24 A. No. 25 Q. To the best of your recollection, though, when you were
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1 doing the operative procedure, you did not observe that 2 the stone that severed Mr. Berg's ureter appeared to be 3 bigger than the scope. 4 A. No. It wasn't bigger than the scope that I can recall. 5 Q. When you are making that judgment, are you comparing 6 diameter? 7 A. Yes. Yes. 8 Q. Just to clarify, your observation was that the diameter 9 of the stone that ended up severing Mr. Berg's ureter 10 was the same diameter as the scope. 11 A. As best as I can recall from looking on the TV monitor 12 it was the same diameter as the scope. I should, I 13 guess I should qualify, say it's not specific. 14 MR. SAGER: Okay. 15 Q. When you say it's not specific, what do you mean? 16 A. It's a long time ago. These are x-rays I haven't seen 17 since his operation. And then I only saw them on a TV 18 monitor. If one were to hold them up, say it's 19 slightly larger than the scope or slightly smaller than 20 the scope, I couldn't argue. It's a judgment. 21 Q. Would you describe for me just in general what 22 Mr. Berg's care was from the time Mr. Berg's ureter was 23 severed until his care was transferred up to Mayo. 24 A. I have to refer to the office notes. Of course, we 25 took care of him while he was in the hospital to get
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1 him through the acute event and then discharged him 2 home. He had returned to see us in the office. I have 3 to sort through the date. It has September 8, but 4 there must be a digit missing from this photocopy. 5 MR. SAGER: Let's look at the original, if 6 that helps you. 7 A. September 28th. There is a digit missing from this. I 8 don't know if there is on yours or not. He returned to 9 the office September 28, 1999. We looked at his 10 incision. It was healing quite nicely. We treated him 11 for a mild yeast infection, asked him to come back, see 12 us again in a week. He returned in a week to see us. 13 The yeast infection had resolved. He was feeling 14 better and looking forward to getting his stent 15 removed. Three days after that he appeared in the 16 Emergency Room when Dr. James Wright saw him. He had 17 pain in his flank. At that point an x-ray was obtained 18 to look for the location of the stent and the stones 19 were noted along the course of the stent. 20 (Discussion held off the record.) 21 A. October 12, came to see me in follow-up to 22 Dr. Wright's visit in the Emergency Room. He was 23 feeling better and we were going to pull out the stent 24 on October 26th. We discussed that. October 26 he 25 came in, had an x-ray, and we took out the stent in
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1 hopes he would pass the stone material still 2 remaining. October 2nd he -- November 2nd, 1999, 3 excuse me, he came back in, saying he was feeling the 4 stones were moving. His pain was shifting down his 5 side or discomfort was shifting down |