This next deposition excerpt series is summed up as: The Doctor Versus The Nurses.
Being evasive in a deposition does not play well in front of a jury. The witness here believes he is scoring brownie points by not answering the questions. The best way to deal with an evasive witness is to let them evade to their heart’s content.
Again, this does not work so well if the lawyer asking questions sticks strictly to an outline. If an evasive answer is given and you simply ask the same question again and again you become part of the problem. You will draw the customary objection: asked and answered. The witness will begin to simply repeat the same evasive answer to the same question. Until someone gives up.
In this excerpt, the doctor uses a word that will ultimately become perhaps the single most important word in the liability case. The word is not a medical term. It is a word of common usage. It will impact credibility. And will create a hole for the defense that will be impossible to dig out from. The word is: significant.
15 Did you review the nursing notes?
16 A We typically do not review the nursing notes.
17 Q If the nurses note abnormalities, how do you get that
19 A If they think it’s significant, they report it to us.
20 Q If there is a significant abnormality, do they have a
21 duty to report it to you?
22 MS. EK: Objection. Calls for a legal
24 A I cannot speak for them.
25 MS. GRIFFITH: Join.
1 Q (BY MS. KOEHLER) Do you expect nurses to report any
2 abnormal condition or symptom to you?
3 A If it’s significant.
4 Q How do they know if it’s significant or not?
5 A It’s their job. I can’t speak for them.
6 Q Is a – is it a significant finding if lower extremities
7 are mottled?
8 MS. EK: Objection. Incomplete hypothetical.
9 MS. GRIFFITH: Join.
10 A Depends.
11 Q (BY MS. KOEHLER) Were you aware – made aware by any
12 nurse at 8:30 p.m. – no; sorry – 8:30 would be a.m. on
13 October 27 that Ms. Spriggs’ lower extremities were
15 A No.
16 Q Would that have been a significant finding?
17 MS. EK: Objection. Incomplete hypothetical.
18 A Yeah. I can’t speak for the nurses.
19 Q (BY MS. KOEHLER) If you don’t know whether having
20 mottled extremities is significant, how would a nurse
21 know that?
22 MS. EK: Objection. Argumentative.
23 A Sorry. I don’t get that question.
24 Q (BY MS. KOEHLER) Why is it . . . Why is having mottled
25 legs not a significant finding?
1 A Who said it’s not significant?
2 Q Is it significant?
3 MS. EK: Objection. Incomplete hypothetical.
4 A I can’t – I can’t tell what the nurses saw or wrote.
5 Q (BY MS. KOEHLER) If legs are mottled, is that a
6 significant finding?
7 A I cannot speak for the nurses. You are asking a
8 hypothetical question.
9 Q I’m asking you as a doctor. If you saw –
10 A As a doctor –
11 Q As a doctor, if you saw mottled legs, would you find that
12 to be significant?
13 A Sometimes patients have skin changes that, you know,
14 would come and go, so this would make it insignificant.
15 If it’s persistent, it would make it significant.
16 Q Would it be significant if the change to the mottled legs
17 25 minutes later was that they were now cool and mottled?
18 A It – it doesn’t make much difference, the fact that it’s
20 Q Cold and mottled is no different than just being mottled?
21 A Again, you know, depends on the patient temperature, the
22 circumstances. This is very hypothetical. Many patients
23 have cold extremities with different diseases.
24 Q Well, you had known Ms. S from a month-and-a-half
1 A Correct.
2 Q You knew her medical condition.
3 A Correct.
4 Q She didn’t present with mottled extremities at the time?
5 A Not that I recall, no.
6 Q They’re not noted in any chart note in September.
7 A You mean in September?
8 Q Correct.
9 A No.
10 Q So in October, if the nurses were noting that she was
11 having some swelling and her lower extremities were
12 mottled, would that be significant?
13 MS. EK: Asked and answered.
14 Q (BY MS. KOEHLER) I’m asking specifically with respect to
16 A Swelling is part of the congestive heart failure.
17 Having, you know, skin changes can be part of the
18 disease, too.
19 Q So you don’t feel that those are significant findings?
20 MS. EK: Objection. Argumentative.
21 A I cannot speak for the nurses, what they saw and whether
22 it’s significant for them or not.
23 Q (BY MS. KOEHLER) But as a doctor, you would not be
24 concerned with HS, who you knew from a month
25 before, having mottled legs with swelling?
1 MS. EK: Object to the form and asked and
2 answered approximately six times now.
3 A We are always concerned about all our patients with any
5 Q (BY MS. KOEHLER) If the cool, swollen, mottled legs were
6 also painful, would that be a significant finding?
7 MS. EK: Objection. Improper and incomplete
9 A Patients with congestive heart failure tend – tend to
10 have leg swelling and leg pains.
11 Q (BY MS. KOEHLER) Cool and mottled?
12 A I did not see her the first day, so I cannot speak for
13 cold or mottled.
14 Q If the patient had swollen, cold, mottled, painful legs,
15 also with nonpalpable pedal pulses, would that be
16 significant to you?
17 MS. EK: Objection. Still incomplete and
18 improper hypothetical.
19 A I did not see Ms. S the first day, and I cannot
20 really comment on her examination. Part of the
21 congestive heart failure symptoms would be leg swelling,
22 you know, painful legs, you know, color changes.
1 (BY MS. KOEHLER) Were you advised at 8:30 a.m. on
2 October 27th by CP, LPN, that Ms. S’
3 lower extremities were mottled?
4 A No.
5 Q Were you advised at 8:55 a.m. by CA, RN, that
6 Ms. B had bilateral legs that were cool and mottled?
7 A No.
8 Q You were advised or . . . Let me ask this: Were you
9 advised specifically by MC at approximately
10 10:46 that Ms. S had plus one edema in the
11 bilateral lower legs and her pedal pulses were not
12 palpable and she had bilateral lower extremity pain
13 sensitive to touch and generalized achiness?
14 A I do not remember.
15 Q Were you advised at 16:52 on October 27th by RM
16 CAN, that there was mottling in Ms. Ss’
18 A No, not as much as I remember.
19 Q At 22 – the hour of 22 o’clock on October 27th, were you
20 notified by JR, RN, that bilateral legs were
21 cool and mottled?
22 A I do not recall that I was notified.
23 (Clarifying interruption by reporter.)
24 A I do not recall that I was notified about this.
The dilemma created by this testimony, is that nurses are trained professionals too. They may not have the same level of schooling as a doctor. But their care and decisions can have a profound impact on a patient’s health. Will the nurses back the doctor – admitting in essence that it is their fault he did not know of the patient’s clinical issues. Or will the nurses contract the doctor. Let’s find out.
9 Q When you did the shift assessment and found the patient
10 to have purple feet, no pulses from her knees down, did
11 you transmit that – well, first of all, did you find that
12 to be a significant finding?
13 MS. EK: Object to the form of the question. It
14 was mottled feet.
15 MS. KOEHLER: As what?
16 MS. EK: Mottled. You said purple feet.
17 Q (BY MS. KOEHLER) Were her feet purple?
18 A Mottled could be a variation of colors.
19 Q What color were her feet?
20 A That’s a subjective judgment.
21 Q In your subjective judgment, what color were her feet?
22 A Mottled. I don’t know how to describe in color any
23 better than that.
24 Q Well, you’ve used the words dusky. What does dusky mean?
25 A Dusky can mean gray. It can mean darker pigmentation.
1 Q So were her feet of a darker pigmentation?
2 A Yes, than the rest – compared to the rest of her body.
4 Q Would you describe them as being purple or not?
5 A I would describe them as mottled.
6 Q All right. What color was the knee area compared to the
7 feet area?
8 A Less mottled.
9 Q How much less mottled?
10 A To – to a degree of severity?
11 Q Yes.
12 A I wouldn’t be able to make, you know, a quantification on
14 Q Were they visibly noticeably a different color than the
15 rest of the upper part of her body?
16 A Yes.
17 Q From the knees down?
18 A Yes.
19 Q With the feet the darkest?
20 A Yes.
21 Q So whatever shade it was, which you’re hesitant to put a
22 shade on it, it was – the darkest part were her feet?
23 A Correct.
24 MS. EK: Object to the form of the question.
1 Q (BY MS. KOEHLER) Am I right? The darkest part were her
3 A The darker part of her body were her feet.
4 Q All right. So back to my question. When you noticed
5 that her feet were – from her knees to her feet were
6 mottled and you went so far as to use a doppler to
7 confirm that there were no pulses, did you find that to
8 be a significant finding?
9 A Yes.
10 Q What does significant mean to you in nursing, you know,
11 in your – in your role as a nurse?
12 MS. EK: Objection. Vague.
13 A A significant finding is – to me is something that needs
14 to be reported or assessed more frequently.
15 Q (BY MS. KOEHLER) Did you report the finding of the no
16 pulses from the knees down and the mottling to a
17 physician as soon as you made note of that?
18 A Yes.
19 Q Who did you report it to?
20 A Dr. B and NP.
21 Q And NP was the P.A. on duty?
22 A She was at bedside.
23 Q She was at bedside? Now, Dr. B was not at the
24 hospital. Am I right?
25 A Correct.
1 Q So how did you contact him?
2 A He had contacted me once and I had contacted him. I
3 attempted to contact him twice through my shift. I had
4 reached and discussed with him once. I was unsuccessful
5 on my third attempt to contact him.
6 Q So what time periods did you attempt to contact him?
7 A He called me to get an update at 2300. I called him
8 shortly after that. I’d have to look at my charting
9 here. Shortly after that, around 2330, I contacted him.
10 Then at the end of my shift – I’d have to look at my
11 charting again – about 6:30, 6:45, I called him and was
12 not – I did not get a response.
13 Q Okay. When he contacted you at 11 o’clock p.m. and you
14 contacted him at 11:30 p.m., did you actually speak to
16 A Yes.
17 Q Each time?
18 A Yes.
19 Q Did you tell him that there were no pulses from the knees
20 down and that there was mottling with the darkest
21 mottling being at the feet?
22 A I had told him my findings and my assessment of no pulses
23 in her feet, no pedal pulses, no tibial pulses and the
25 Q Is there any doubt in your mind that you told him that
2 A No. I told him that information.
3 Q Is there . . . When you looked at your charting, did you
4 see notation – notes that you had those conversations
5 with Dr. B?
6 A There was a note that I – Dr. Bcalled for update.
7 Q And that’s when you would have transmitted that
9 A Correct.
10 Q What other information did you transmit to him beyond the
11 no pulses and the mottling?
12 A General – my general assessment, general like vital
13 signs, labs that had come back, discussed medications
14 patient was receiving.
15 Q Okay. When he learned of the no pulses and the mottling,
16 did he give you any special instructions with respect to
17 that item?
18 A No.
Is this a classic case of he said, she said. Or there more to this story.
To be continued…
Photo: Another timeline PPT slide by Duane Hoffmann