The following are portions of actual trial transcripts from the New York County Supreme Court case tried from January to March 2002 referred to in our newsletter. The identities of the within defendants have been withheld pursuant to a confidentiality agreement. A brief explanation proceeds each excerpt.

DEFENDANT, DR. B CONCEDES THAT CO-DEFENDANT DR. K, DELAYED DIAGNOSIS OF APPENDICITIS AND THEREBY DELAYED SURGERY FOR TWO DAYS.

Background

Dr. K, a gastroenterologist, examined our client the day after his admission to the hospital. His differential diagnosis included eight possible causes of intermittent bowel obstruction, none of which included appendicitis. Dr. K ordered a barium enema to rule out Crohn's disease. Dr. B, plaintiff's attending physician, had overall responsibility to arrive at a diagnosis. The barium enema was ordered on May 17, 1994 but was not performed until 3:00 p.m. on May 18th and no doctor got the results until May 19th. The results showed that the appendix was blocked, indicating appendicitis and the surgeon, Dr. W upon learning this, scheduled an appendectomy for the next day.

Dr. B was cross-examined about when he obtained the results of the barium enema. The purpose of the questioning was to show his indifference to plaintiff's condition by not thinking it important enough to get the results the day the test was performed. In an effort to explain why he waited until the day after the tests to get the result, he eventually admitted that he was lead to believe that it was not urgent to get the barium enema result because Dr. K did not include appendicitis in his differential diagnosis. Dr. B testified that he would have gotten the test results the same day the test was performed had Dr. K written appendicitis in the differential diagnosis because appendicitis would have been a surgical emergency. He then conceded that if the same sequence of events had occurred, the operation would have been done two days earlier, which is precisely what we were trying to prove should have been done!

MR. RUSSOTTI:

Q: Okay. Dr. K did not tell you appendicitis did he?

DR. B

A: No.

Q: If Dr. K had told you appendicitis, that he was including appendicitis in his differential diagnosis, would that have influenced the way you were looking at this case?

A: Yes.

Q: Yes. You would have rethought your position, right?

A: Of course. I call in a specialist, I'd be foolish not to listen to what he has to say.

Q: If he said, one of the things we should be considering here is appendicitis, you would have consider appendicitis, right?

A: Yes, I would have.

* * *

Q: I'm talking about the 18th. Wasn't it important on the 18th to know what this 18-year-old was doing lying in this hospital now for the third time?

A: Of course, nothing now

Q: Talking about then?

A: Then I didn't think it critical, no.

Q: Critical. Forget about critical. How about just important?

A: I didn't think it was important enough, no.

Q: Isn't that a departure from the standard of care? You have this kid in the hospital, you don't know what is wrong with him. He is there for two days, he has got this elevated white count, with pain in his belly. A test is being done. Is that a departure from the standard of care, not to find out what the result of the test was on the 18th?

A: If I was looking for an appendicitis on the barium enema, I can see that. But under the circumstances, I didn't think it was that important to find out on the 18th.

Q: Barium enema could disclose appendicitis, right?

A: Yes.

* * *

Q: So why didn't you think it was important to get the results of the barium enema to see if it was going to disclose appendicitis?

A: Because the purpose in doing the barium enema was for a completely different reason other that appendicitis.

Q: But you know it can disclose appendicitis?

A: Wasn't --why it was done wasn't the thinking at the time.

* * *

Q: At that point, right?

Now, you told us earlier that in your phone call with Dr. K on the 17th, if he had included in his differential diagnosis appendicitis, you would have also, right?

MR. BIRNBAUM: Objection. Asked and answered.

THE COURT: Overruled.

A: Probably.

Q: Right. On the 18th, if he had included --you were still keeping in contact with him on the 18th, right?

A: Yes.

Q: Okay. If he had included appendicitis in his differential diagnosis on the 18th, you would have considered that in your differential diagnosis on the 18th right?

A: I would have considered it, yes.

Q: Right.

Q: Well, whereas you disregarded what Dr. W said, had Dr. K included it in his diagnosis, differential, would you have accepted that?

A: I think the difference between considering something and agreeing with something is two different things.

Q: Well, if he had, if he was telling you that in his opinion one of the possibilities here was appendicitis, is that something you would have relied on?

MR. BIRNBAUM: Objection. Asked and answered.

THE COURT: Overruled.

A: I would have taken it into consideration.

Q: Okay. Would you have taken it into consideration and would it have then become part of your differential diagnosis as of the 18th?

A: I can't say that would have, based on my assessment of Ernest on the 18th.

Q: Uh huh. And, Doctor, if two doctors now were telling you, Dr. W, intermittent appendicitis, and Dr. K, if he had told you appendicitis, you would have disregard with both of these doctors?

A: No, I think it would be more likely I would have taken into account appendicitis more strongly.

Q: Right. That stands to reason, right?

A: Yes.

Q: Okay. So that had Dr. K told you appendicitis, you would have given that some serious consideration?

A: Yes.

MR. BIRNBAUM: Objection. That's the third time it has been asked.

THE COURT: Overruled.

Q: Now, if you had done that, if you had done that, you knew the --

A: If I had done what?

Q: Given it serious consideration, given that diagnosis of appendicitis serious consideration.

A: Yes.

Q: Okay. And you knew the barium enema had been done on the 18th, right?

A: Yes.

Q: You told us this morning that if, just a minute ago, if it was appendicitis it was being done for, you would have called to get the results, right?

MR. MISHARA: Objection.

THE COURT: Overruled.

A: I would have made more of an effort to find out the results, yes.

Q: By picking up the phone, calling the radiology department and asking them what happened, right?

A: Yes.

Q: Okay. So, had Dr. K told you he was considering appendicitis, that would have had the effect on you later on into the day of picking up the phone and getting the results of the barium enema, right?

MR. MISHARA: Objection.

THE COURT: Overrule.

A: Yes, I think that's fair to say.

Q: Okay. Now, Dr. W testified here that had the results of the barium enema --had he known the results of the barium enema on the 18th --he didn't know the results on the 18th either, didn't find out until the 19th, right? But he testified had he known on the 18th, the results of the barium enema, he would have recommended surgery on the 18th. Okay?

A: Yes.

Q: All right. And if you had learned the results of barium enema by calling up the radiology on the 18th, would you have communicated that to W?

Mr. MISHARA: Objection.

THE COURT: Overruled.

A: Probably. Sure.

Q: Sure, you would have.

A: Why wouldn't I?

Q: Why wouldn't you, of course, you would?

A: Yes.

Q: So W also testified if he learned that on the 18th and if everything had happened on the 19th, in terms of the patient consenting to the operation, that happened on the 18th, he would have operated on the 18th. You accept that testimony, right?

A: Yes.

Q: Okay. Makes sense, right?

A: Yes.

Q: Okay. So, therefore, it's fair to say that Dr. K not telling you that appendicitis was part of the differential diagnosis here led to the delay of the surgery until the 20th, correct?

MR. MISHARA: Objection.

MR. BIRNBAUM: Objection to the form of the question, in terms of what is fair to say and what is not fair to say.

THE COURT: Sustained. Rephrase.

MR. RUSSOTTI: Okay

Q: Had he told you that, and you told us the effect it would have had on you, that you would have checked to see what the result was, and I told you what W said, had he known, he would have operated, you just told us you would have called W and told him?

A: Yes.

Q: Then if you follow that, had K told you appendicitis in his differential diagnosis, the likelihood is that he would have been operated on the 18th, correct?

MR. MISHARA: Objection.

MR. BIRNBAUM: Objection.

THE COURT: Overruled.

Q: Can you answer, Doctor?

A: Perhaps, yes.

Q: Right. Okay. So, the failure of Dr. K -- I'm just putting it the other way. The failure of Dr. K to include appendicitis in his differential diagnosis contributed to the delay here of operating from the 18th to the 20th, correct?

MR. MISHARA: Objection.

MR. BIRNBAUM: Objection.

THE COURT: Overruled.

Q: Right?

A: In the way in which you described it, yes, I understand.

Q: Okay. That makes --that makes sense, a reasonable interpretation of what happened, right?

A: Yes.

DR. K ADMITS THAT THE OTHER DEFENDANT DOCTORS WERE RELYING ON HIM AND THAT HIS FAILURE TO WRITE APPENDICITIS IN THE CHART AS PART OF THE DIFFERENTIAL DIAGNOSIS HE WAS CONSIDERING MISLEAD THE DOCTORS, CAUSED SURGERY TO BE DELAYED AND CHANGED THE COURSE OF THE CASE.

Q: Now, what you said was you had to be certain, you had to consider it highly, before you recommended before you could include -- withdrawn.

The question I asked you is why you didn't include it in your note, that you were considering it, You said you had to consider it highly or be certain that it was I appendicitis before you included it in your note. That's what your answer was.

A: Yes, I believe I said that.

Q: These other diagnoses that you inc1uded in your note, you could not be certain about, could you?

A: No, sir.

Q: And, in fact, you told us yesterday that there was more evidence for appendicitis than the two other conditions on your note here which you wrote, intussusception and amebiasis which were obstructive conditions?

A: That's right, sir.

* * *

Q: Right. As a consultant, your role in this picture was to give the other doctors that you were working with the benefit of your thinking, correct?

A: That's right.

Q: Because it might influence the way they look at this case, correct?

A: That's right.

Q: Dr. B testified that if he had known that you were considering in your differential diagnosis appendicitis, it would have changed the way he viewed this case, do you remember that testimony?

MR. MISHARA: Objection, asked and answered.

MR. BIRNBAUM: He answered that already.

MR. RUSSOTTI: Not as to this testimony on the 18th.

THE COURT: Overruled. Go on.

Q: Do you remember that testimony?

A: I remember you read it either yesterday or the day before.

Q: Without reading it again, that's what Dr. B testified, that on the 18th of May, had he known that you were considering appendicitis in your differential, it would have changed the way he looked at this case?

MR. MISHARA: Objection, still objection.

It's the same testimony. He can say it's about a different day, but it's the same testimony and he already questioned the doctor.

THE COURT: Overruled.

MR. BIRNBAUM: Same objection.

A: I believe I recall that.
Q: So you can see how your input and the communication of your input to the other doctors can affect the way they view their treatment of the patient, right?

A: I recognize that, yes.

Q: So, wasn't it important for you, I mean given the testimony withdrawn.

You didn't need the testimony in this trial from Dr. B to know that other doctors were relying on your input, right?

A: No, sir.

Q: You know that from your experience right?

A: That's right, sir.

Q: So, didn't you think it was important to at least communicate with the other doctors that now you, as the gastroenterologist, expert, were considering appendicitis in your differential diagnosis, didn't you think it was important to communicate that to them?

A: I wish I could recall my discussions of that day. There are many different levels of communication. I'm sure I shared my concerns.

Q: Well, Dr. B testified that he was in contact with you that day and he was not aware, you did not tell him that you were considering appendicitis in your differential diagnosis on the 18th.

A: His recollection is better than mine. I'm sorry, I can't contradict that, because I can't recall any specific discussions.

Q: Okay. I can go to the testimony, but you accept that's what he testified to?

A: I do, because I can't recollect. I can't contradict that.

Q: Now, if that's the case, then you did not communicate to Dr. B who was the attending physician, your view that now appendicitis was --you were entertaining that in your differential, right?

A: Unfortunately I don't have enough recollection to say that I did, no.

Q: If you want me to find it

A: I'm saying my recollection.

Q: I understand.

So that Dr. B testified that had he known you were considering appendicitis --he knew that Dr. W was considering appendicitis. He knew that. But that didn't change his view of the case. But had he known you were considering appendicitis, it would have --had he known both doctors now were considering appendicitis, it would have changed the way he looked at the case and he would have gotten the results of the barium enema that day had he thought appendicitis was in the picture, do you remember that testimony?

A: Yes.

Q: And had he done that, he testified that he would have advised Dr. W --the testimony from Dr. W was had everything been done as it had been on the 19th and the 20th, he would have advised to operate on the 18th, had the results of that barium enema been done on the 18th, and in all likelihood Dr. B said the patient would have been operated on the 18th, okay, do you accept that testimony from Dr. B?

A: Yes, I'll accept that.

Q: Would you agree with me, then, that the failure of you to communicate, either by way of the chart or verbally to Dr. B that you had now --were now considering appendicitis, altered the events of what happened during this hospitalization?

MR. MISHARA: Objection, calls for speculation.

THE COURT: Overruled.

Q: Correct?

A: Do you want a yes or no?

Q: I want a yes or no.

MR. BIRNBAUM: If you can answer that.

Q: If you accept Dr. B's testimony here as he's testified to here in court, your failure to communicate this in one form or another altered the progress of this case?

MR. BIRNBAUM: I object, your Honor, to his characterization and interpretation of Dr. B's testimony.

THE COURT: Overruled.

Can you answer the question? Yes, no, or I can't answer it yes or no.

A: I can't answer it yes or no.

Q: Well, wasn't the failure of you to include in your note or to communicate to Dr. B that now you were considering appendicitis in your differential diagnosis, wasn't that a departure from proper medical practice, to not communicate that to these doctors?

A: Sir, I believe I did communicate it. I wish I had a specific recollection.

The decision here --I was not standing in the way of the surgeon saying don't operate. I was expressing my concern. I wasn't certain this was appendicitis. He's doing better. Please, let's get this barium enema and be sure.

If Ernest was doing worse, if he had peritoneal signs, if his fever was high, if there were signs, yes, please take him now. But he was doing better. He was doing better. We had the luxury of time to be sure, sir. And that's what I was expressing here.

Q: You had the luxury of time? You have an appendicitis

A: Of the clinical situation.

Q: Well, but you have an appendicitis that you know --if that's what you're considering, appendicitis, that appendicitis can rupture or perforate at any time, right?

A: Sir, I said I wasn't convinced enough of appendicitis. I still was more --I was concerned he had Crohn's disease. That was the overriding factor. I did not want to send him to the operating room with Crohn's disease. That was my concern. I had nothing to gain here by keeping him out of the operating room

Q: My question to you

A: -- other than my genuine concern. I didn't want him prematurely operated on and a diagnosis found that surgery was not the best therapy for him.

Q: Nobody's questioning whether you were genuine or not. Nobody is questioning that. Nobody said you tried to do anything wrong here.

A: I appreciate that.

Q: That's not what cases like this are about, okay?

A: Yes.

Q: My question to you, though, is a very simple one, and that is if you were considering it in your differential, if it was one of the diagnoses, that it was likely that he had, then certain things flow from that, namely that if he did have that and there was a delay, there could be a perforation, right?

A: Yes, that's a risk I take several times a week when I evaluate people with abdominal pain in the emergency room, yes.

Q: If the other doctors are relying on your evaluation here as to what the possible conditions are, is it a departure from proper medical practice not to advise them of the diagnoses that you are considering in your differential?

A: Can you --I lost that. I concentrated on the earl y part. You lost me on the other doctors.

A surgeon makes his decision. He's not

Q: How about Dr. B? He's an attending.

A: Dr. B weighs the opinions of the doctors, and my concerns which he had to weigh was Crohn's disease.

Q: There's no question.

You've told us this morning that on the 18th , appendicitis was in your differential diagnosis now. It had raised to that level however you defined

A: It had risen as a possibility. I still was not convinced enough, sir, to cross the line and say, operate.

Q: Nobody's saying to operate. Nobody's saying you should have said to operate.

All I'm directing your attention to is advising the doctors that now you were considering appendicitis in your differential diagnosis as one of the likely possibilities. That's all we're talking about here.

Just because you say I'm considering appendicitis doesn't mean you take him to the operating room, does it?

A: Sir, in this case, I think every doctor in the case is thinking appendicitis.

Q: Well

A: You're not the only one with hindsight. Everybody is worried about appendicitis here. Dr. B, Dr. W, I'm sure, were all worried about it. However

MR. RUSSOTTI: I move to strike as not responsive.

THE COURT: Overruled.

Q: Because that was not Dr. B's testimony. Dr. B's testimony was he was thinking of intermittent mechanical obstruction, not appendicitis. So everybody wasn't thinking of appendicitis.

MR. MISHARA: I'm objecting to the characterization of the testimony.

THE COURT: Sustained.

Q: Well, Dr. B wrote in his chart, wrote in his note, that his note was, intermittent mechanical obstruction. You saw that, didn't you?

A: He wrote his note before mine.

Q: Right. That's what he was thinking of the day that he saw him. He wasn't thinking appendicitis.

A: So he didn't have a chance to solicit.

* * *

Q: Let me read you Dr. B's testimony, because I found what I was looking for here. Page 2448. Regardless of the semantics of whether he was thinking about appendicitis, whether he included it in his note, whether he included it in his differential, regardless of the semantics, this is the testimony I want to read you from Dr. B.

MR. MISHARA: Could we have the testimony without the preamble?

THE COURT: Yes. Sustained.

Q: All right.

Q: Dr. K did not tell you appendicitis, did he?

A: No.

Q: If Dr. K told you appendicitis, that he was including appendicitis in his differential diagnosis, would that have influenced the way you were looking at this case?

A: Yes.

Q: Yes, you would have rethought your position, right?

A: Of course. I call in a specialist. I'd be foolish not to listen to what he has to say.

Q: If he said one of the things we should be considering here is appendicitis, you would have considered appendicitis, right?

A: Yes, I would have."

That's the testimony from Dr. B here. And then he testified that had he considered it, he would have acted differently on the 18th. So my question to you is: Wasn't it a departure from good and proper medical practice on your part not to include in your note or to communicate to Dr. B that you were considering appendicitis in your differential diagnosis? Yes or no.

* * *

MR. RUSSOTTI: Dr. K is today now, for the first time, testified this morning that he was including appendicitis in his differential diagnosis. And that's the reason I'm doing this.

THE COURT: Correct. Go on.

Q: Page 2507, line 10:

Q: Now, you told us earlier in your phone call with Dr. K on the 17th, if he had included his differential diagnosis appendicitis, you would have also, right?

A: Probably.

Q: Right. On the 18th, if he had included, you were still keeping in contact with him on the 18th, right?

A: Yes.

Q: Okay. If he would have included appendicitis in his differential diagnosis on the 18th, you 'would have considered that in your differential diagnosis on the 18th,

right?

A: I would have considered it, yes.

Q: Right. Well, whereas you disregarded what Dr. W said, had Dr. K included it in his differential diagnosis, would you have accepted that?

A: I think the difference between considering something and agreeing with something is two different things.

Q: Well, if he had --if he was telling you that in his opinion one of the possibilities here was appendicitis, is that something you would have relied on?

A: I would have taken it into consideration.

Q: Okay. Would you have taken it into consideration and would it have then become part of your differential diagnosis on the 18th?

A: I can' t say that it would have based on my assessment of Ernest on the 18th.

Q: Uh-huh. And, doctor, if two doctors now were telling you, Dr. W intermittent appendicitis and Dr. K, if he had told you appendicitis, you would have disregarded both of these doctors?

A: No. I think it would be more likely I would have taken into account appendicitis more strongly.

Q: Right. That stands to reason, right.

A: Yes.

Q: Okay. So that had Dr. K told you appendicitis, you would have given that some serious consideration?

A: Yes.

Q: Now, if you had done that, if you had done that, if you knew --

A: If I had done what?

Q: Given it serious consideration, given that diagnosis of appendicitis serious consideration.

A: Yes.

Q: Okay. And you knew the barium enema had been done on the 18th, right?

A: Yes.

Q: You told us this morning if, just a minute ago, if it was appendicitis, if it was being done for, you would have called to get the results, right?

A: I would have made more of an effort to find out the results, yes.

Q: By picking up the phone, calling the radiology department and asking what happened, right?

A: Yes.

Q: So, had Dr. K told you he was considering appendicitis, that would have had the effect on you later into the day of picking up the phone and getting the results of the barium enema, right?

A: Yes, I think that's fair to say.

Q: So now it's all out here. My question to you is, based on that testimony, wasn't it a departure from proper medical practice by yourself, I'm not saying it was intention, wasn't it an omission which amounts to a departure from proper medical practice not to include in your note or to communicate to Dr. B that you on the 18th were now considering appendicitis in your differential diagnosis?

A: No, absolutely not, not until I was certain.

Q: Are you certain of ameboma?

A: I wasn't certain of any of these. I was pursuing the diagnosis, sir. I was not sending him to surgery for ameboma.

Q: You weren't certain of Crohn's disease, were you?

A: No.

Q: You weren't certain of intussusception?

A: No.

Q: You weren't certain of tuberculosis of the cecum, were you?

A: No.

Q: But you included --you wrote those as your differential. You just told us that appendicitis was in your differential, but you're not including that because you weren't certain about it?

A: The big difference being

Q: Is that right?

A: These did not call for immediate surgery. It's a big decision. These --I was going to get the answer by getting the barium enema.

If I thought -- if I thought -- if I was certain enough that he had acute appendicitis, I would have canceled the barium enema and called B and Dr. W and said, go, operate. I wasn't certain, so I could not mislead them and say, acute appendicitis is very likely here, but I want to do a barium enema. That's not consistent. I wasn't certain enough, sir, to send him to the operating room. And, therefore, I did not depart from proper

Q: Medical practice?

A: Medical practice. Thank you.

Q: You only write down diagnoses, differential diagnosis that you are certain of, is that what you are telling us?

A: What I write down has a lot to do with the repercussions what I write down, sir. If surgery is on the line here, I have to be careful about crossing that line.

Q: That is the surgeon' s decision to cross that line, not yours.

A: But as you said, I influenced the decision of other doctors, so it is a very important line for me to cross.

Q: And you saw how you --the failure to put, to let these doctors know were you considering differential appendicitis in your differential affected what happened here?

MR. BIRNBAUM: Objection to the word "failure" in this question.

THE COURT: Why don't you rephrase it .

Q: By not including appendicitis in your differential, you see how it affected what happened in this case, don't you?

MR. BIRNBAUM: Objection.

THE COURT: Overruled.

Q: We just read Dr. B's testimony. By not including it you see how it altered the course of this case, correct?

A: Sir, I wish I had the clairvoyance of your expert surgical witness. I did not

Q: This has nothing do with expert surgery.

A: I was not convinced Ernest had appendicitis and I was not going to move him into surgery that day.

MR. RUSSOTTI: Move on strike.

THE COURT: Strike.

Q: You see how your own omission to include this, your thinking to give the other doctors the benefit of your thinking here alter the course of this case?

MR. BIRNBAUM: I object, your Honor. Omission is --to the term "omission."

THE COURT: Overruled.

You may answer the question, please.

A: The way the question is posed, yes.

DEFENDANT DR. S CONCEDES THAT CO-DEFENDANT DR. SB WAS NEGLIGENT IN NOT FOLLOWING UP THE RESULTS OF A TEST PERFORMED ON PLAINTIFF.

In this excerpt, Dr. S, a gastroenterologist, admits that his co-defendant, Dr. SB was negligent for not following up the results of a test that Dr. S ordered. Dr. S was brought in as a consultant by Dr. SB, and as such, ordered a small bowel series to be performed on plaintiff to rule out an intestinal obstruction. Dr. S also did not have appendicitis in his differential diagnosis. The test was done as an outpatient and the results were sent to Dr. SB because he was the attending physician. The results were negative, in that there was no obstruction of the bowel, except the radiologist thought that the plaintiff might have parasites. His written report specifically suggested that a stool sample be taken to rule out parasites. However, Dr. SB did not think he had parasites and therefore disregarded this suggestion and did not get a stool sample. He also did not forward the report to Dr. S or verbally advise Dr. S of the results of the test that Dr. S had ordered. This was important because five months later when plaintiff presented with the same symptoms, Dr. SB immediately ordered the stool sample to rule out parasites. The necessity to perform this test because it had not been done earlier, delayed the diagnosis of appendicitis during this admission.

Dr. S was cross-examined about whether or not he should have obtained the results of the tests that he ordered and whether or not Dr. SB should have sent the results of the test to him. Dr. S said that he never followed up to get the test results because he was only a consultant and that Dr. SB should have sent the test to him. He conceded that SB was negligent in not forwarding the test results to him.

MR. MISHARA:

Q: That's not my question. My question is: You were called in as a consultant for your recommendations, right?

A: Right.

Q: Not only did you give recommendations, you also wrote an order in the chart, right?

A: Yes.

Q: An order in the chart has certain implications. When you write orders, the nurses are supposed to make sure they got followed, right?

A: Yes.

Q: It's not just a suggestion?

A: Right.

Q: That test was done, right?

A: Four days after he was discharged.

Q: Four days after he was discharged it was done. The doctor who wrote-- who asked for your advice and your expertise in this area got the report and never sent it to you?

A: That is a fact.

Q: Isn't that a departure from the standard of care from Dr. SB, not to make sure you got the results of the report so that you could see what the results of the study were that you ordered?

MR. MISHARA: Objection.

THE COURT: Overruled.

A: Only if he felt he couldn't follow up and do the recommended test that the radiologist had advised. What was the advice of the radiologist? Obtain stool for CNS, O and P.

Q: It says, "Further evaluation by stool examination. Suspicious defect inside the loops of bowel suggesting the presence of parasites, further evaluation is recommended."

Dr. SB just didn't follow this recommendation. He said he didn't have diarrhea and he didn't order stool samples done at that time, okay? Do you accept that testimony?

A: Yes.

MR. MISHARA: Objection. I dispute that testimony, your Honor.

MR. RUSSOTTI: That's what he said. He did not order stool for ova and parasites at that time .

MR. MISHARA: He did not order stool for ova and parasites at that time. His testimony was that he told Mrs. L to go to see the gastroenterologist, Dr. S, and the jury's heard testimony that she, instead, went to Dr. R and he did tell her -to go for stool O and P .

I'm objecting to using this witness in this context.

THE COURT: It's appropriate to use this witness in the context, but we have to have a direct statement about what was said. Again, if there's a dispute about the content, then we're going to have to find the part in the transcript.

MR. RUSSOTTI: It was clearly said by Dr. SB that he did not instruct the patient to get stool sample for ova and parasite, clearly said.

THE COURT: I agree with that.

MR. RUSSOTTI: After he got this report, because he didn't think it was necessary. That's what he testified to.

MR. MISHARA: But my objection goes to we're taking this one fact and we're taking it out of context and ignoring anything else that happened.

MR. RUSSOTTI: Nothing else happened.

THE COURT: Overruled.

Can you answer the question?

Q: My question is: You assume that testimony, Dr. SB said that, okay? Shouldn't he have sent this report to you as the consultant, to determine if you, who were the expert, agreed with that?

MR. MISHARA: Objection.

THE COURT: Overruled.

A: Well, he should have done one of two things. Either followed up and done those tests or sent them to me so that I would do those tests.

Q: The failure to do either one of those two things was a departure from proper medical practice by Dr. SB, isn't that true?

MR. MISHARA: Objection.

THE COURT: Overruled.

MR. MISHARA: May I state the basis?

THE COURT: No. Let him give the answer.

MR. MISHARA: There's no foundation. I would like to state the basis, if I may.

THE COURT: Overruled. Let him answer the question.

A: Yes.

Q: The answer is yes, right?

A: Yes.

Q: That's not the way good medicine should be practiced, is it?

MR. BIRNBAUM: Objection.

THE COURT: Sustained.

DR. S AGAIN CONCEDES THAT DR. SB WAS NEGLIGENT AND THIS TIME ADMITS THAT HE WAS NOT COERCED INTO SAYING SO.

When Dr. S was re-cross-examined he accused Mr. Russotti of "badgering" him into accusing Dr. SB of negligence.

Q: Mr. Mishara asked you some questions with respect to the question that I had asked you. I asked you if, in your opinion, Dr. SB departed from good and proper medical practice by not ordering a stool sample or sending the report to you, do you remember that?

A: Yes.

Q: You said, in your opinion, he did depart from good and proper medical practice, do you remember that?

A: Yes.

MR. MISHARA: Objection.

THE COURT: Overruled.

Q: Do you remember that?

A: After you badgered me, yes.

Q: Badgered you? I badgered you into that?

A: You asked that multiple times.

Q: You seem pretty good at defending yourself, doctor.

A: I'm trying.

MR. MISHARA: I'll move to strike the last remark, your Honor. I would ask for a question.

THE COURT: I'll strike the last remark.

Can we have a question, please?

MR. RUSSOTTI: Okay.

Q: Now, the question is: In response to Mr. Mishara's questions, you said that Dr. SB attempted to follow up with Mrs. L by telling her to get a gastroenterology consult, do you remember those questions?

A: Yes.

Q: Now, if I told you, without reading it, I have it here, but to save some time, that Dr. SB testified that he did not give her an instruction, Mrs. L, an instruction on discharge from the hospital to go to a gastroenterologist, okay, and after the stool sample was done, did not give her an instruction, did not call her up and discuss the results of the stool sample and did not give her an instruction to see a gastroenterologist at that time, okay, do you accept that testimony?

A: Okay.

Q: And that he had no recollection of when this conversation occurred with Mrs. L, and that the only evidence in this case comes from Mrs. L who testified that at Yonkers Hospital where she worked, she happened to see Dr. SB in an elevator and asked him what happened t:o that test approximately two weeks before she had the visit with Dr. R?

MR. MISHARA: Now I'm disputing. Objection. I don't recall Mrs. L's testimony quite that way.

Q: Assume that's what she said.

THE COURT: Well, if he's going to dispute it --

MR. RUSSOTTI: He disputes it all the time, Judge.

THE COURT: It's called litigation. So do we need to stop and look for it and give the jury a break?

RUSSOTTI: No, I won't stop and waste the time to do this.

Q: Doctor --

MR. RUSSOTTI: The jury's recollection should control on this.

THE COURT: Counsel, move on.

Q: Doctor, if you assume that she testified that she bumped into him in an elevator and asked him what happened to the test and he told her at that time that something looked funny, you should go see a gastroenterologist, okay, can you assume that?

A: Okay.

Q: Now, is that good and proper medical practice, the way to follow up on a test result?

A: No comment.

Q: No comment? I'm sorry. You have to answer the question. You can't answer with no comment. That is not good and proper medical practice, to just happen to see somebody in an elevator and relay information in this fashion after a test is ordered, is it? That's not good and proper medical practice, is it?

A: No.

Q: That would be a departure from the standard of care, wouldn't it?

A: Yes.

Q: I didn't badger you now, did I? I didn't badger you?

A: No.

MR. BIRNBAUM: Objection.

THE COURT: Overruled.

MR. RUSSOTTI: I have no further questions.

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