759 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND 2 FOR ORANGE COUNTY, FLORIDA 3 LAWRENCE M. DESTEFANO, 4 Plaintiff, 5 vs. CASE NO.: CI-00-7265 DIVISION: 32 6 ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE 7 CORPORATION; ADVENTIST HEALTH SYSTEM/SUNBELT, INC.; SUNBELT 8 HEALTH CARE CENTERS, INC.; ROLLINS BEDFORD CORPORATION, 9 d/b/a SUNBELT HEALTHCARE & SUBACUTE CENTER; SHCC 10 SERVICES, INC., and ORLANDO REGIONAL HEALTHCARE SYSTEM, 11 INC., 12 Defendants. 13 ------------------------------------------------------ 14 VOLUME VII 15 (Pages 759 through 900) 16 Continued transcript of proceedings held before the 17 Honorable Renee Roche, Judge of the Circuit Court, Orange 18 County, Florida, on Wednesday, October 19, 2005, 19 beginning at 8:51 a.m., at the Orange County Courthouse, 20 Orlando, Florida, before Laura J. Landerman, R.M.R., 21 C.R.R., and Notary Public, State of Florida at Large. 22 23 24 25 760 1 A P P E A R A N C E S: 2 WILLIAM G. OSBORNE, ESQUIRE TERRY McCULLOUGH, Legal Assistant 3 Law Offices of William G. Osborne, P.A. 538 East Washington Street 4 Orlando, Florida 32801 and 5 BRADLEY CONWAY, ESQUIRE 390 North Orange Avenue 6 Orlando, Florida 32801 7 For the Plaintiffs, 8 TRACY A. MARSHALL, ESQUIRE DYANA L. PETRO, ESQUIRE 9 Gray Robinson 301 East Pine Street -- Suite 1400 10 Orlando, Florida 32801 11 For the Defendant, Adventist Health System, 12 LARRY J. TOWNSEND, ESQUIRE 13 DAVID EVANS, ESQUIRE Mateer & Harbert 14 Landmark Center II -- Suite 600 225 East Robinson Street 15 Orlando, Florida 32801 16 For the Defendant, Orlando Regional Healthcare System, Inc., 17 18 19 20 21 22 23 24 25 761 1 I N D E X 2 TESTIMONY OF MARY ANN THORNTON, LPN (cont'd) 3 Cross-Examination by Ms. Marshall 762 Cross-Examination by Mr. Evans 781 4 Redirect Examination by Mr. Osborne 782 5 TESTIMONY OF SHELLY FUCHS (via videotape) 6 Direct Examination by Ms. Petro 796 Cross-Examination by Mr. Osborne 811 7 Cross-Examination by Mr. Evans 843 Redirect Examinatoin by Ms. Petro 844 8 TESTIMONY OF RONALD A. BLACK, M.D. (via videotape) 9 Direct Examination by Mr. Glick 847 10 11 E X H I B I T S (In Evidence) 12 (None presented.) 13 14 15 16 17 18 19 20 21 22 23 24 25 762 1 (Continued from Volume VI) 2 - - - - - 3 CROSS-EXAMINATION 4 BY MS. MARSHALL: 5 Q Good afternoon. 6 A Good afternoon. 7 Q Mrs. Thornton, how are you? 8 A Fine. 9 Q Now, Mrs. Thornton, when you were at Sunbelt, 10 you testified that you were there on the day of September 11 21st, 1999, correct? 12 A Yes, ma'am. 13 Q And Mr. Osborne showed you a note that you 14 wrote on September or did you write that on September 15 21st, 1999? 16 A Yes, ma'am. 17 Q And did you write the note at 8:30 or is that 18 documenting the time that the events happened? 19 A That's documenting the time that the events 20 happened. 21 Q Do you know when you wrote -- when you wrote 22 the note exactly? 23 A It had to be before the police got there. 24 Q Do you know that? Do you remember that or are 25 you just guessing? 763 1 A I'm just guessing. 2 Q But it was the same day, correct? 3 A Yes, ma'am, yes. 4 Q If we were to look at your memory today versus 5 your memory when your deposition was taken in July of 6 2002 and your memory on September 21st, 1999, which was 7 fresher? 8 A Probably 9/21/99. 9 Q Okay. And when you wrote this note, did you 10 try to put everything into the note that you thought 11 would be important? 12 A Yes. 13 Q At the time that you wrote that note, did you 14 think that it was important to write down how many steps 15 you took to get to the room? 16 A No. 17 Q Did you think to write down whether you 18 knocked or not? 19 A No. 20 Q That wasn't what -- that wasn't something that 21 was important at the time? 22 A No. 23 Q Okay. Did you write down if you, in fact, 24 took any steps into the room? Did you document that? 25 A No, ma'am. 764 1 Q Okay. Did you -- did you think that that was 2 important, to put that down on 9/21/1999, how many steps, 3 if any, you took into the room? 4 A No, I did not think it was important. 5 Q Okay. Did you write down in those notes 6 whether you were behind Rachel Bean or beside Rachel 7 Bean? 8 A No. 9 Q Why not? 10 A Because I didn't think it was important. 11 Q But you did write down what you felt would be 12 important to put in the documentation and into the 13 medical records; is that correct? 14 A Yes, ma'am. 15 Q And if you can, start at the bottom of 16 exhibit -- of the exhibit of your note dated September 17 21st, 1999. 18 A Okay. At the bottom of the first page or 19 second page? 20 Q On the first page right after -- third line 21 from the bottom. "We then walked down to the resident's 22 room, 307." Do you see that? Third line from the bottom 23 on the first page. 24 A I'm not seeing that on the first page. Room 25 307 is on the second page. 765 1 Q I'm sorry. It's the third page of the exhibit 2 that you were looking at, three lines up. 3 A Okay. 4 Q "We then walked down to the resident's room, 5 307. As we opened the door, the DON and myself" -- 6 A -- "witnessed the son giving his mother a 7 passionate kiss on the lips which lasted for an extended 8 time." 9 Q Okay. Now, Mr. Osborne has showed you -- 10 MS. MARSHALL: Where are the pictures? 11 MR. OSBORNE: Big one's over there. 12 BY MS. MARSHALL: 13 Q Now, you didn't note in your record whether 14 you stepped into the room or took a couple of steps or 15 not, correct? 16 A Correct. 17 Q So when you had your deposition taken three 18 years later, approximately, were you put in the position 19 of trying to reconstruct what happened? 20 A Yes. 21 Q Do you think you did a very good job of it? 22 A Not really. 23 Q So you didn't note in your notes how many 24 steps that you took into the room so you didn't have that 25 in your notes to be able to recall that part of what you 766 1 saw, did you? 2 A No. 3 Q And you also didn't put down in your notes, 4 because you didn't think it was important, whether you 5 knocked or not, correct? 6 A Correct. 7 Q So you didn't have the benefit of having those 8 details in your notes at the time you gave your 9 deposition three years later, did you? 10 A No. 11 Q And you also didn't note whether the door was 12 open, slightly open, closed, did you? 13 A No. 14 Q So when you gave your deposition three years 15 later, you didn't have the benefit of those details in 16 your notes either, did you? 17 A No. 18 Q But you did put down what was important, 19 didn't you? 20 A Yes. 21 Q And what was important, Mrs. Thornton? 22 A The fact that we witnessed him giving his 23 mother a kiss that was long enough that made me 24 uncomfortable. 25 Q Why did it make you uncomfortable? 767 1 A Because with working with the elderly and 2 being a mother and having a mother and dad, you give your 3 mother a kiss, but you don't give it to them on the 4 mouth. I mean, that's -- well, you can, but you don't do 5 it for an extended time that makes someone feel 6 uncomfortable. 7 Q Is that how you felt? 8 A Yes. 9 Q Did you feel uncomfortable? 10 A Yes, I did. 11 Q Now, again, Mrs. Thornton, when this was 12 shown -- well, let's take this in context. 13 You've had your deposition taken on July 30th, 14 2002, correct? 15 A Uh-huh. 16 Q And it had been three years since these 17 events, correct? 18 A Yes. 19 Q And you hadn't seen this bed pad in three 20 years, had you? 21 A No. 22 Q And they asked you to describe that bed pad, 23 didn't they? 24 A Yes. 25 Q And you said something about a baseball, 768 1 correct? 2 A Yes. 3 Q And then they showed you this bed pad and said 4 is this the bed pad, right? 5 A Yes. 6 Q And do you remember what you said? 7 A No, I can't. 8 Q Did you say that I don't know if it is or not? 9 A That sounds like probably what I said. 10 MR. OSBORNE: Objection, improper 11 recollections being restored. 12 THE COURT: Sustained. 13 MR. OSBORNE: Move to strike the answer. 14 THE COURT: Denied. 15 BY MS. MARSHALL: 16 Q Now, Mrs. Thornton, you were also shown these 17 pictures, correct? 18 A Yes. 19 Q Okay. Did you take these pictures? 20 A No. 21 Q And you were told that -- were you told when 22 these pictures were taken? 23 A No. 24 Q Do you know on September 21st, 1999, whether 25 that bed was in the exact position that this bed is in in 769 1 these pictures? 2 A No, I do not know that. 3 Q Did you write down in your notes what the 4 position of the bed was when you walked into the room? 5 A No. 6 Q Did you draw a diagram or anything in your 7 notes to help you remember later how the bed was 8 oriented? 9 A No. 10 Q So when you're asked about a room three 11 years -- well, let me just back up. 12 You left Sunbelt in December of 1999? 13 A Yes. 14 Q So at the time you had your deposition taken, 15 you hadn't -- had you been to Sunbelt in over two years 16 and eight months? 17 A No. 18 Q So when you were asked about the questions, 19 you hadn't been in that room for over two and a half 20 years, correct? 21 A Correct. 22 Q And that wasn't something that you noted in 23 your nursing notes, correct? 24 A Correct. 25 Q So would it be fair to say that you were 770 1 trying to reconstruct what you saw but you didn't have 2 the benefits of any notes on that particular detail? 3 A Yes. 4 Q Now, let me ask you about the other exhibit 5 that Mr. Osborne asked you about, which is the additional 6 wound care progress notes. Do you see that? 7 A Uh-huh. 8 Q Now, Mr. Osborne, I believe, asked you whether 9 you had -- at the time that you signed this note, whether 10 you had seen the bright red blood on the incontinence 11 pad? 12 A Right. 13 Q Do you recall that? And you answered? 14 A No. 15 Q Do you know when this was written, 16 Mrs. Thornton? 17 A No, ma'am. 18 Q So do you have any idea if you had seen the 19 bed pad at the time that this was signed or not? 20 A No. 21 Q Okay. So that was just a tricky question. 22 MR. OSBORNE: Object, move to strike. 23 THE COURT: Sustained. Granted. 24 MS. MARSHALL: Withdrawn. 25 THE COURT: The jury will disregard that 771 1 question. 2 BY MS. MARSHALL: 3 Q Did there come a time sometime on September 4 21st, 1999, that you went into Mrs. Destefano's room with 5 Rachel Bean to retrieve the bed pad? 6 A Yes. 7 Q Do you know what time that was? 8 A No. 9 Q After you and Rachel Bean went into 10 Mrs. Destefano's room the first time -- I'm not talking 11 about to retrieve the bed pad, I'm talking about the 12 first time that you went in -- was any action taken with 13 regards to what you saw? 14 A You've got me confused now. 15 Q Okay. I'm sorry about that. Mr. Osborne was 16 asking you whether what you saw was sexual abuse or 17 abuse. Do you recall those questions? 18 A Yes, yes. 19 Q And you said yes? 20 A Yes. 21 Q You thought it was very inappropriate what you 22 were observing; is that correct? 23 A Yes, I did. 24 Q And your director of nursing was right there 25 with you, correct? 772 1 A Yes. 2 Q And was action taken by the DON as to what you 3 guys witnessed? 4 A If she did anything or called anyone, she did 5 not -- she did not make me aware of it. 6 Q That was something that you left up to her? 7 A I had to. 8 Q And that was your -- the protocol that you 9 followed? 10 A Yes. 11 Q Now, when Mr. Destefano walked -- when you saw 12 him for the first time on September 21st, 1999, do you 13 recall, based on your notes that you note on that same 14 day, do you recall what he said to you? 15 A In my office? 16 Q Correct. 17 A He asked me or he told me, I believe, that his 18 mother had just been admitted the night before and that 19 she did not have a dressing on her heel, and apparently 20 she had a pressure area on that heel, and that no one had 21 changed the dressing. And, oh, geez. And he demanded to 22 see the director of nurses, and I told him that she 23 hadn't come in yet. She hadn't gotten in yet, and that I 24 would be -- you know, get her on the phone and let her 25 know what was going on. 773 1 Q Okay. And, again, are your notes the best 2 evidence of what you observed on September 21st, 1999? 3 A Yes. 4 Q Okay. Do your notes reflect that he was 5 complaining that the nurse from the night before got an 6 attitude? 7 A Yes. 8 Q And was that attitude over being asked to sign 9 a paper? 10 A Yes. 11 Q Did Mr. Destefano begin yelling at you? 12 A Yes. 13 Q Was he standing over your desk? 14 A He was leaning over my desk. 15 Q Did he put his finger in your face? 16 A Pretty much so, yes. 17 Q And was he saying that you weren't being a 18 nurse? 19 A Yes. 20 Q And that you were just making excuses for 21 these nurses who were not doing their job? 22 A Yes. 23 Q Did you feel threatened? 24 A Yes, I did. 25 Q Why? 774 1 A Because there was one way in that office and 2 one way out, and he stood in that way. 3 Q And after -- did you finally get him to leave? 4 A Yes. 5 Q And at that time, did he make any threats to 6 you? 7 A He told me that he could or I could find out 8 what kind of trouble he could make, whatever my nurse's 9 notes say. I can't remember. 10 Q "Mr. Destefano stormed out of my office 11 screaming that I would find out what kind of trouble he 12 could make for me"? 13 A Yes. 14 Q Now, prior to September 21st, 1999, had you 15 ever met Mr. Destefano before? 16 A No. 17 Q And did you have any reason to dislike 18 Mr. Destefano? 19 A No. 20 Q Did you have any reason to want to cause him 21 any problems? 22 A No. 23 Q Mr. Osborne asked you about Connie Standish. 24 A Yes. 25 Q I'm going to show you what has been used in 775 1 opening argument to -- I'm going to show you this picture 2 down here. 3 A Okay. 4 MR. OSBORNE: Your Honor, that's not in 5 evidence. I'm going to object to the use of it. 6 THE COURT: Overruled. 7 BY MS. MARSHALL: 8 Q Does that refresh your memory at all as to who 9 she is? 10 A No. 11 Q Was she -- is that a friend of yours? 12 A No. 13 MR. OSBORNE: Objection, no predicate. 14 THE COURT: Overruled. 15 A No. 16 Q Is that somebody that you remember talking to, 17 confiding in? 18 A No. 19 Q Now, you said that you observed Mr. Destefano 20 kissing his mother when you went into the room with 21 Rachel Bean; is that correct? 22 A Yes. 23 Q And was it a mouth-to-mouth kiss? 24 A Yes. 25 Q Okay. Was it -- did it last for more than 776 1 just a peck? 2 A Yes. 3 Q Do you know how long it lasted? 4 A It lasted long enough to make me feel 5 uncomfortable. 6 Q Did you have a timer with you? 7 A No. 8 Q And did you time how long it was? 9 A No. 10 Q I just want to -- I want to show you, 11 Mrs. Thornton, your deposition dated July 30th of 2002. 12 And in particular, I am referring to page, is it 89 that 13 I pointed you to? 14 A Okay. 15 Q Do you see that? 16 A Uh-huh, yes. 17 Q This is the discussion about the bed pad? 18 A Yes, it is. 19 Q And if you could just take a moment to review 20 on page 89, lines 18 through 25. 21 MR. OSBORNE: Judge, improper predicate. 22 There is no question pending. She's asking her to 23 read before there is a question pending. If she's 24 going to refresh her memory, you have to ask a 25 question. 777 1 MS. MARSHALL: That's not what I'm doing, Your 2 Honor. You're allowed to -- when there has been an 3 implication that there is recent fabrication, the 4 witness can use her own deposition to explain what 5 was being asked of her in cross-examination and to 6 put it into context. 7 THE COURT: Overruled. 8 BY MS. MARSHALL: 9 Q Mrs. Thornton, on page 89, you were asked by 10 Mr. Destefano's lawyer: "Are you able to describe for 11 me" -- strike that. 12 "Have you seen that incontinence pad since the 13 time that Rachel Bean took it and then delivered it to 14 the police officers?" And your answer was what on there? 15 Do you see that? 16 A What line are you on? 17 Q I'm sorry. I started on line 18. 18 A Okay. 19 Q And what did you say? 20 A No. 21 Q And then he said: "Are you able to describe 22 for me the blood pattern of what you saw at the time?" 23 And what did you answer? 24 A No. 25 Q And then you were asked: "Okay. Are you able 778 1 to describe for me how much blood was on the pad in any 2 way that you can describe it?" 3 A And I said: "Well, I can say approximately." 4 Again, I -- 5 Q And then -- 6 MR. OSBORNE: Judge, I have another objection. 7 This is not -- I did not say she fabricated anything 8 about the size of the blood, and this is bolstering 9 the witness's testimony. 10 THE COURT: Overruled. 11 BY MS. MARSHALL: 12 Q And then you were -- on line 10, you 13 approximated with your hands the size of the area; is 14 that correct? 15 A Yes. 16 Q Okay. 17 A I'm not -- excuse me. 18 Q At this point -- 19 A Let me back up. I'm not sure if I used my 20 hands or just said it was the size of a baseball. 21 Q Okay. The baseball indication is down here at 22 19 and 20. 23 A Yes. 24 Q Okay. And at that point in time, were you 25 just trying to give some kind of an approximation? 779 1 A Yes. 2 Q Did you -- and you had not seen the bed pad in 3 two and a half years at that time, correct? 4 A Correct. 5 Q Mrs. Thornton, do you understand there to be 6 penalties for falsifying a medical record? 7 A Yes, ma'am. 8 Q Is that something that you would do? 9 A No. 10 Q If you did falsify a medical record, would 11 your nursing license be at risk? 12 A Yes, ma'am. 13 Q And on the night of or the morning of 14 September 21st, 1999, did you understand Mr. Destefano to 15 be upset about a missing heel dressing? 16 A Yes. 17 Q Is that something that you would lose your 18 license over? 19 A No. 20 Q And did -- I just want to ask you one other 21 thing. In your -- in your notes at the first -- in the 22 first four lines, you note in there that Mr. Destefano 23 had told you that there was a -- that his mother didn't 24 have a dressing on the right heel wound, correct? 25 A Correct. 780 1 Q Did you ever try to cover that up or hide the 2 fact that a heel dressing was missing the night before? 3 A No. 4 Q Were afraid that you were going to get in 5 trouble from anybody because a heel dressing had been 6 missing the night before? 7 A No. 8 Q You also said that you would not have signed 9 Mr. Destefano's note; is that correct? 10 A Correct. 11 Q Can you tell us why? 12 A Because it's not a legal document. 13 Q And what do you mean by that? 14 A It's not anything that would have been put in 15 the patient's chart. 16 Q So if there was a missing wound dressing, 17 would you note that in the nurse's chart? 18 A Yes. 19 Q And not sign a piece of paper that somebody 20 stuck underneath your nose? 21 A Correct. 22 MS. MARSHALL: Thank you. No further 23 questions. 24 THE COURT: Mr. Townsend? 25 MR. EVANS: Mr. Evans. 781 1 THE COURT: Cross-exam. 2 - - - - - 3 CROSS-EXAMINATION 4 BY MR. EVANS: 5 Q Good afternoon. 6 A Good afternoon. 7 Q Just a few questions. Ma'am, you were not 8 involved at all in the transfer of Ms. Destefano to 9 Orlando Regional Medical Center, were you? 10 A Correct. 11 Q And you did not have any contact with anyone 12 at Orlando Regional Medical Center on September 21st 13 prior to Ms. Destefano being transferred to Orlando 14 Regional, correct? 15 A Correct. 16 Q And you did not have any contact with anyone 17 at Orlando Regional Healthcare System, Orlando Regional 18 Medical Center, on that day after she was transferred to 19 Orlando Regional, correct? 20 A Correct. 21 Q And, ma'am, you do not know an individual by 22 the name of Kelly Pipkin or Kelly Pipkin Gregg; is that 23 correct? 24 A No, I don't know. 25 Q And do you know a Lillian Folley? 782 1 A No. 2 MR. EVANS: Thank you. 3 THE COURT: Redirect? 4 MR. OSBORNE: Yes, Your Honor. 5 - - - - - 6 REDIRECT EXAMINATION 7 BY MR. OSBORNE: 8 Q Ms. Thornton, if you can find those pictures 9 of the room again for me, please. 10 A Uh-huh. 11 Q Isn't it true that this device that's 12 mounted -- look at the bottom right picture. There's a 13 cylinder device mounted on the wall. Do you see that 14 there? 15 A Yes. 16 Q That is a sphygmometer, isn't it? 17 A Yes. 18 Q That is a blood pressure monitor; isn't it? 19 A Yes. 20 Q And it's mounted on the wall? 21 A Yes, sir. 22 Q It's mounted on the wall in every room in 23 Sunbelt, every patient room? 24 A I'm not sure of that. 25 Q It's mounted on this wall, isn't it? 783 1 A Yes. 2 Q And there's also a cuff that comes off that 3 that's mounted there permanently too, isn't there? 4 A Yes. 5 Q And you have these there mounted on this wall 6 by the head of the bed so that you don't have to bring in 7 a blood pressure monitor when you go see a patient, 8 correct? 9 A Yes. 10 Q It's just convenient to have it there, isn't 11 it? 12 A Yes. 13 Q It would be pretty foolish to move the bed 14 anywhere away from that blood pressure monitor, wouldn't 15 it? 16 A Yes. 17 MS. MARSHALL: Object, speculation. 18 THE COURT: Sustained. 19 BY MR. OSBORNE: 20 Q It would be not good for the patient medically 21 to be removed from that blood pressure monitor, would it? 22 MS. MARSHALL: Object, speculation. 23 THE COURT: Overruled. 24 A I'm sorry. Can you repeat it? 25 Q It would not be good medically for the patient 784 1 to have the patient's bed removed to an area apart from 2 the mounted, permanently affixed blood pressure monitor? 3 A Just depends on who moved the bed because that 4 cuff is not permanently attached to the patient's arm. 5 Q The blood pressure monitor's permanently 6 attached, isn't it? 7 A It's to the wall. Where's the cuff? 8 Q Ma'am, the question was the blood pressure 9 monitor is attached to the wall, isn't it? 10 A Yes. 11 Q And it's a good idea to keep the bed by the 12 blood pressure monitor if you want to measure somebody's 13 blood pressure, isn't it? 14 A Yes, uh-huh, yes. 15 Q Let's go back to your charting. You were 16 being asked about your charting. Let's take a look at 17 what you actually put in the chart, talking about the 18 second page of your chart. What you say in your chart 19 was, quote, "As we opened the door, the son and myself 20 witnessed" -- "the DON and myself witnessed the son 21 giving his mother a passionate kiss on the lips that 22 lasted for an extended time," correct? 23 A Yes. 24 Q You didn't say as we walked in the room. You 25 said as we opened the door, didn't you? You wrote that? 785 1 A Yes. 2 Q And isn't it true, given the configuration of 3 this room, if this is an accurate depiction, that story 4 doesn't work either because when you open the door, you 5 can't see the head of the bed, can you? 6 A Not by these pictures, no. 7 Q Now, when your deposition was taken, you were 8 asked about this chart in your deposition, weren't you? 9 A Yes. 10 Q And you were asked a lot of questions about 11 it, correct? 12 A Yes. 13 Q You had reviewed that chart before your 14 deposition, hadn't you? 15 A Yes. 16 Q You had the benefit of that before your 17 deposition and you had talked about it during your 18 deposition, correct? 19 A Yes. 20 Q So when you were asked about these events in 21 2002 at your deposition, you had the benefit of what you 22 charted to help you remember what happened, didn't you? 23 A Yes. 24 Q When you were asked these questions in your 25 deposition, Mrs. Thornton, you could have testified in 786 1 2001 that you had no recollection of these events other 2 than what was charted, couldn't you? 3 A Yes. 4 Q I mean, if there was absolutely something you 5 were asked that you didn't remember, all you had to say 6 was, you know, I don't remember that. I'm going to have 7 to refer to my chart. Isn't that true? 8 A Yes. 9 Q You didn't do that, did you? 10 A No. 11 Q You testified about what you knew and recalled 12 at that time, didn't you? 13 A At that time, yes. 14 Q Right. Because if you hadn't recalled it, you 15 would have said so, wouldn't you? 16 A Yes. 17 Q You would have said I don't recall? 18 A Yes. 19 Q You would have said I don't remember? 20 A Yes. 21 Q Correct? Or you would have said let me refer 22 to my chart so I could see what I did in my chart so I 23 could remember. You would have said that too? 24 A Yes. 25 Q You said none of those things, did you? 787 1 A No. 2 Q Each and every question I asked you today, 3 when you looked at your deposition, you gave specific 4 answers to those questions, didn't you? 5 A Yes. 6 Q You never said I don't recall, did you? 7 A No. 8 Q You never said I don't remember -- 9 A No. 10 Q -- did you? 11 MR. OSBORNE: No further questions. 12 THE COURT: Ladies and gentlemen of the jury, 13 any of you -- write it down, please, Ms. Rodriguez. 14 Mr. Osborne, move the chart so I can see the jury. 15 MR. OSBORNE: Yes, ma'am. 16 THE COURT: Anyone else have a question? 17 Ms. Rodriguez? Counsel approach the bench. 18 (Bench conference.) 19 THE COURT: Three questions from 20 Ms. Rodriguez. When they walked into the room and 21 supposedly saw Mr. Destefano kiss his mother, what 22 did she and Rachel say at that very moment? What 23 did Mr. Destefano say? Any objection? 24 MR. TOWNSEND: No. 25 MR. OSBORNE: No. 788 1 MS. MARSHALL: (Shakes head.) 2 THE COURT: Why would Connie Standish make 3 such a serious allegation that she, Mary, was going 4 to get him for sexual misappropriation? What was 5 their, Mary and Constance's working relationship 6 like? That's two questions. 7 MS. MARSHALL: Okay. 8 MR. OSBORNE: I don't think you can ask the 9 second one. I think you can ask the third one. 10 THE COURT: You don't think I can ask -- 11 MR. EVANS: That's two parts of the same one. 12 MS. MARSHALL: You can ask it separately. 13 MR. OSBORNE: I thought the first one was why 14 would Connie -- 15 THE COURT: Why would Connie Standish say 16 this. 17 MR. OSBORNE: That's okay. 18 MS. MARSHALL: I'm fine with either one of 19 them. 20 MR. EVANS: I'm okay with this one. 21 THE COURT: What was their relationship like? 22 MS. MARSHALL: I have no problem with that. 23 MR. OSBORNE: That's fine. 24 THE COURT: Number 3: Did Mrs. Destefano wear 25 any underwear? If so, were there any blood stains 789 1 on it as well? 2 MR. OSBORNE: Okay. 3 MR. EVANS: (Nods head.) 4 MS. MARSHALL: No problems. 5 MR. TOWNSEND: Fine. 6 THE COURT: Wait, one more. 7 THE COURT DEPUTY: Two more. 8 THE COURT: I didn't see who sent that one. 9 Did Mr. Destefano have any ox -- did Mrs. Destefano 10 have any oxygen mask or any instruments in her 11 mouth? 12 MS. MARSHALL: No problem. 13 MR. EVANS: Fine. 14 MR. OSBORNE: Fine. 15 THE COURT: Wait, wait. It says name of two 16 witness and three witness. I take it that means the 17 second -- I have no idea what this means. I'm going 18 to ask for clarification. Can you all figure that 19 out? 20 MS. MARSHALL: They want to hear her name 21 again. 22 MR. TOWNSEND: If she's asking people that are 23 going to testify -- 24 THE COURT: I don't know. I'm going to 25 clarify. 790 1 (Open court.) 2 THE COURT: The person who asked the last 3 question, can you raise your hand, please? 4 MS. GUARD: (Raises hand.) 5 THE COURT: Would you mind writing this -- is 6 your question what is the name of the second and 7 third witness? 8 MS. GUARD: Yes. 9 (Bench conference.) 10 MS. MARSHALL: Margarita Walters and then the 11 third was Connie Standish. 12 MR. OSBORNE: Right. 13 THE COURT: No objection to me asking? 14 MR. OSBORNE: No, no objection. 15 MS. MARSHALL: (Shakes head.) 16 (Open court.) 17 THE COURT: I'm going to ask you some 18 questions. These are questions from the jury, so 19 when I ask them, turn and answer to the jury, 20 please. I'm going to read it just like it's 21 written. 22 When they walked into the room and supposedly 23 saw Mr. Destefano kiss his mother, what did she and 24 Rachel say at that very moment? 25 THE WITNESS: I don't recall us saying 791 1 anything to each other at that time. 2 THE COURT: What did Mr. Destefano say? 3 THE WITNESS: He didn't say anything. 4 THE COURT: Why -- go ahead. 5 THE WITNESS: I'm sorry. 6 THE COURT: Finish your answer. 7 THE WITNESS: Rachel is the one that told him 8 or asked him that she was aware that there was some 9 problems, and she was there to discuss them. And 10 from that moment, that's when she was let in the 11 room and I wasn't. And then what we saw was 12 discussed, you know, later in her office. 13 THE COURT: Why would Constance Standish make 14 such a serious allegation that she, Mary, was going 15 to get him for sexual misappropriation? Answer that 16 question first. 17 THE WITNESS: I really don't have any idea. I 18 do not remember this lady. I don't remember having 19 that much to do with her, and I don't really think I 20 would even recognize her if I saw her on the street 21 today. We just didn't have that much to do with 22 each other. 23 THE COURT: What was -- this may be 24 repetitive. What was their, Mary and Constance, 25 working relationship like? 792 1 THE WITNESS: The only time that I ever saw 2 her is when she would be at the nurse's station, 3 because she was the MDS coordinator, which meant 4 that she held monthly meetings with the residents' 5 families, and she would come and observe the chart 6 or put in documentation. But other than that, 7 that's the only time I ever saw her. 8 THE COURT: Okay. Did Mrs. Destefano wear any 9 underwear? If so, was there -- were there blood 10 stains on it as well? 11 THE WITNESS: I don't remember her having 12 undergarments on. 13 THE COURT: Did Mrs. Destefano have any oxygen 14 mask or any instruments in her mouth? 15 THE WITNESS: I do not believe she had any 16 oxygen on at that time. 17 THE COURT: And technically, this is not a 18 question for this witness, but there was no 19 objection to my reminding the jury that the name of 20 the second and third witnesses were Margarita 21 Walters and Connie or Constance Standish by video 22 deposition. 23 Now, do any of you have any other questions or 24 any follow-up questions for this witness? 25 MR. KILEY: (Raises hand.) 793 1 THE COURT: Yes, we have a question. 2 (Bench conference.) 3 THE COURT: What was the medical state of 4 Mrs. Destefano? Was she in a coma state? 5 MR. TOWNSEND: That's fine. 6 MR. OSBORNE: That's fine. 7 THE COURT: Any objection? 8 MS. MARSHALL: No objection. 9 MR. OSBORNE: (Shakes head.) 10 THE COURT: Was Mrs. Destefano's gown backside 11 was cracked -- was checked for bright red blood 12 stains or was it open in the back? 13 MR. OSBORNE: That's fine. 14 MR. EVANS: Fine. 15 MS. MARSHALL: Fine. 16 THE COURT: Did Mary know of the incident the 17 night before of same kissing as seen by nurse before 18 Mary went and saw second kissing? 19 MR. OSBORNE: That's fine. 20 MS. MARSHALL: That's fine. 21 THE COURT: No objection? 22 MR. EVANS: It's fine. 23 (Open court.) 24 THE COURT: I have three more questions for 25 you, ma'am. 794 1 Did Mary know of the incident the night before 2 of same kissing as seen by nurse before Mary went 3 and saw second kissing? 4 THE WITNESS: No, I was not aware of that. 5 THE COURT: What was the medical state of 6 Mrs. Destefano? Was she in a coma state? 7 THE WITNESS: Not a coma. I believe she had 8 advanced dementia. 9 THE COURT: Did Mrs. Destefano's gown backside 10 was checked for bright red blood stains or was it 11 open in the back? 12 THE WITNESS: It was open in the back. 13 THE COURT: Any further questions, folks? 14 MR. BERRIOS: One here. 15 THE COURT: Okay. Counsel? 16 (Bench conference.) 17 THE COURT: Was there other notes other than 18 nurse's notes for communication between shifts? 19 MS. MARSHALL: I don't have a problem with 20 that. 21 MR. EVANS: No objection. 22 MR. OSBORNE: Fine. 23 (Open court.) 24 THE COURT: One more question, ma'am. Was 25 there other notes other than nurse's notes for 795 1 communications between shifts? 2 THE WITNESS: No. Can I add something to 3 that? 4 THE COURT: Go ahead. 5 THE WITNESS: If any of the nurses needed to 6 talk to the director of nurses, you know, they could 7 pick up the phone and call her or they could pick up 8 the phone and call me. Like if it's something that 9 warranted her attention, we would definitely, you 10 know, call her, and then she would get in touch with 11 the nurse that had placed the call. 12 So it wasn't strictly by nurse's notes that 13 you dealt with her. You could very easily pick up 14 the phone and call someone. 15 THE COURT: Anyone have any other questions 16 over here? Okay. Mr. Osborne, do you care to 17 follow up on any of that? 18 MR. OSBORNE: No, Your Honor. 19 MS. MARSHALL: No questions. 20 MR. EVANS: No questions. 21 THE COURT: Ma'am, you're free to go. Thank 22 you very much. 23 Ladies and gentlemen, I'd like to press on, if 24 I could, until about ten after 3:00, and then I'll 25 give you a 20 minute or so break. Can everybody 796 1 hang on that long? If you care to, stand up and 2 stretch while we're bring the next witness on. 3 Everybody comfortable and okay, as comfortable as 4 can be expected? 5 MR. OSBORNE: Judge, we have a one-hour video 6 at this time. 7 THE COURT: Let's get started. We may have to 8 break, but we can get started. 9 MR. OSBORNE: This is Shelly Fuchs, F-U-C-H-S. 10 MR. TOWNSEND: Your Honor, may we approach the 11 clerk about a number that was given to an exhibit? 12 THE COURT: (Nods head.) 13 MR. OSBORNE: Your Honor, if the Court is 14 ready. 15 THE COURT: Go ahead, sir. 16 (Whereupon, the following videotaped deposition 17 proceedings were published to the jury:) 18 BY MS. PETRO: 19 Q Good morning. Could you please state your 20 name for the record? 21 A Yes. Shelly Fuchs. 22 Q Ms. Fuchs, we understand that you've been 23 called to active duty with the Florida National Guard for 24 the next several months. For the record, can you please 25 just describe the terms of your deployment and the reason 797 1 you're unable to appear in person at trial? 2 A Yes. I'm getting ready to, excuse me, assist 3 with the preparation of my battalion and companies to 4 deploy to Kuwait. I'll be up in the Jacksonville area 5 for approximately eight months, then heading to a remote 6 station for approximately three months and then head to 7 either Kuwait or Iraq for the year. 8 Q Thank you. 9 A At least, at a minimum. 10 Q And Ms. Fuchs, what is your occupation when 11 you are not with the National Guard? 12 A I'm a physical therapist assistant. 13 Q And are you required to have a license as a 14 physical therapist assistant? 15 A Yes, I am. 16 Q What other training do you have for that 17 field? 18 A Well, we have -- besides the graduation from a 19 physical -- from an approved physical therapy assistance 20 course, I also have continuing education classes that I 21 have to do every so often to keep my license current. 22 Q And is your license current at this time? 23 A Yes, it is. 24 Q Can you please briefly describe your work 25 history for the jury? 798 1 A Yes. Since graduation from PTA school, I 2 worked at the -- well, initially, I started out as a 3 physical therapy technician while I was going through 4 school. And then I continued on, once I graduated, to 5 work in the county hospital outpatient burn unit out in 6 Arizona for about a year. 7 Then I moved to Florida. I worked in an 8 assisted-living facility, and then I moved on with 9 Novacare, where I started employment at Sunbelt. And 10 then once Novacare changed out, Sunbelt kept me on as 11 restorative coordinator. And then from there, I went to 12 Avante of Mt. Dora. I had a brief break there, going to 13 the military, back with the military for a little bit. 14 And then I started back up with Avante of Mt. Dora, where 15 I've been since. 16 Q And that is where you're currently employed? 17 A Yes. 18 Q Okay. And have you served in any branch of 19 the Armed Services? 20 A Yes. I've served in both active duty Air 21 Force and the Army National Guard, both in Arizona and in 22 Florida. 23 Q And what do you do in the National Guard? 24 A My first 23, 24 years I was military bomb 25 squad. In the last two years, I've just been command 799 1 sergeant major. I'm a senior -- senior management of 2 enlisted soldiers. 3 Q Let's go back to when you were an employee of 4 Sunbelt Health Care and Subacute Center. Do you remember 5 what year you began your employment there through 6 Novacare? 7 A I want to say it was -- I could be off on it, 8 but I want to say it was 1997 to '99 with Novacare, and 9 then '99 to 2001 with Sunbelt, if I remember right. I 10 could be off. I don't remember the exact dates. 11 Q And what was your position when you were an 12 actual Sunbelt employee? 13 A Restorative coordinator. 14 Q And can you please generally describe your 15 duties as a restorative coordinator? 16 A Right. I managed a restorative team who 17 did -- typically, when a patient comes off skilled 18 therapy, okay, they're no longer skilled, on skilled 19 therapy. We want to make sure that they keep their 20 highest functional level possible. And what we tend to 21 do is we continue with some type of an exercise programs 22 or feeding programs or whatever. That's my staff 23 managing that, keeps people functional. And I was also a 24 part of different teams in the facilities, such as the 25 restraint team, the fall team, the wound care team, that 800 1 type of aspect. 2 Q You've mentioned the wound care team. As the 3 restorative coordinator, did you personally assess the 4 status of patients' wounds? 5 A With -- with a team, yes. 6 Q And when you say "a team," who are you 7 referring to in addition to yourself? 8 A Typically, the team, it could consist of a 9 multitude of different people at any given time, but 10 usually the team consists of a nutritionalist, a nurse, a 11 PT/OT. You could have the doctor in there. It just 12 depends on when we're doing our rounds who's -- almost 13 always it will be, well, me. It will be usually the 14 nurse manager, and sometimes other members of the rehab 15 team will be there. 16 Q Okay. And what did your wound assessment 17 consist of? What did you do? 18 A We would typically go in, do a chart audit 19 initially to find out the basis of the patients, anything 20 that might be -- assist with the assessment itself. Then 21 we would go actually observe the skin integrity of the 22 patient, look at the wound itself. 23 I would do, like, a trace of the wound where I 24 put, like, plastic over plastic and do an outline so I 25 can have a visual representation. There's a checklist 801 1 that we filled out, and then there's another form that we 2 would typically fill out that kind of consolidates it all 3 together. 4 Q And based on that assessment, would you then 5 make recommendations for treatment? 6 A Yes. 7 Q And during this process, did you take notes? 8 A Yes. 9 Q Ms. Fuchs, I'd like to show you what has been 10 previously marked for identification as Defendants' 11 Composite Exhibit No. 1. It's actually in front of you. 12 Do you recognize this document? 13 A Yes. This appears to be the form that we used 14 and I filled out back on September 21st, 1999. 15 Q And that was during the time period you were 16 employed by Sunbelt? 17 A Yes, it is. 18 Q This document consists of several pages of 19 notes. Did you make these notes while you were in the 20 room with the patient? 21 A Well, not all of them while I'm in the room. 22 For example, like the trays, like I said, I use clear 23 plastic to trace over it. What I do is I -- the two 24 layers, the second -- the top layer doesn't have contact 25 with skin, so I put that on a copier, and I make a 802 1 regular sheet, and then I'll trace over it onto the 2 actual form. 3 The checklist page, most of it I do in the 4 room at the time, but not all of it because I need some 5 of the information is off of the trace when I'm doing it. 6 And then the notes page, the initial wound 7 care progress notes page, part of that's done when I'm 8 doing a chart audit. And then the rest of it's like a 9 finalized, usually it's -- it will be within -- it will 10 be usually within a couple hours of when I was with the 11 patient. 12 Q So for the notes that you don't make when 13 you're actually in the room, do you make those notes 14 while your assessment is still fresh in your mind? 15 A Oh, absolutely. I always do documentation on 16 the same day. 17 Q And was the creation of the medical notes that 18 have been shown to you in Composite Exhibit 1 part of 19 your routine business practice while you were the 20 restorative coordinator at Sunbelt? 21 A Yes. 22 Q And is the documentation or the writing on 23 these pages, is that your handwriting? 24 A Yes, it is. 25 Q And on the bottom of page 2, is that your 803 1 signature? 2 A Yes, it is. 3 Q Is that also your signature on the bottom of 4 page 4? 5 A Yes, it is. 6 Q And is that also your signature on the bottom 7 of page 5? 8 A Yes, it is. 9 Q Can you tell me generally what this document 10 that I've shown you consists of? 11 A What it consists of? 12 Q Yes, ma'am. 13 A The first page is a -- basically a visual 14 description of what the wound looks like and tells you 15 where it's located on the body. The second page 16 describes the wound on the first page in more detail, and 17 it also has a recommendation for the dressing and 18 treatment. 19 And the fifth page in here, which is the 20 additional wound care progress note, that's a 21 consolidation of what I saw on the patient plus anything 22 else I observed while we're doing the assessment and any 23 additional information that I felt was pertinent. 24 Q Can you read for us the name of the patient 25 that's at the top of this assessment? 804 1 A Yes. It's Carolina Destefano. 2 Q And do you recall doing this particular 3 assessment of Mrs. Destefano? 4 A No. 5 Q Even though you don't specifically remember 6 performing Mrs. Destefano's assessment, do you believe 7 this document reflects a written recollection of your 8 personal observations on September 21st, 1999? 9 A Yes, I do. 10 Q Ms. Fuchs, at this time, I would like you to 11 read into the record the last page of this document, 12 which is entitled "Additional Wound Care Progress Notes." 13 A Okay. Just a second. September 21st, 1999. 14 Patient admitted on 9/19/99 with a diagnosis of decreased 15 level of consciousness, urosepsis, Alzheimer's, chronic 16 constipation, impaired swallowing. Abnormal labs on 17 9/16/99 with sodium, 134; BUN, 26; red blood count, 3.36; 18 HGN, 9.8; HCT, 29.3; band neutrophils, 19.5; lymphocytes, 19 17.7; ASB band neutrophil, 2.0; myelocytes, 2.7 -- I 20 can't read that. 21 Uro -- I can't read my writing. It's urine 22 dyphus -- sorry, urinalysis, sorry, 9/15/99. Clarity is 23 hazy. Color is yellow. Bacteria is 4 plus. Hyaline 24 cast 5. Course span cast, 3. 25 Nursing admission skin assessment on 9/19/99 805 1 noted the following: Right heel Stage III with yellow 2 slough and bloody drainage. Two open areas on coccyx 3 sacrum with additional healing sites with pink scar 4 tissue. Also with Stage II intact blister on left 5 shoulder. See graphic wound assessment for dressing 6 recommendations and wound status. 7 When assessed, patient found to have bright 8 red blood on incontinence pad from unknown origin. 9 Nursing notified and aware of blood. Per nursing, M.D. 10 to examine patient. Patient to be transferred to ORMC 11 for evaluation. And then signatures. 12 Q And whose signature is that next to yours? 13 A That's Mary Thornton. 14 Q And who is Mary Thornton? 15 A She was the nurse manager. 16 Q And do you recall Ms. Thornton being present 17 with you when you did this assessment? 18 A Do I recall? 19 Q Yes, ma'am. 20 A No, I don't recall, but it's typical practice 21 that the nurse managers would be on whichever floor I'm 22 at. The nurse managers would be with us when -- with me 23 when I did the assessment. 24 Q What I'd like to do next is take you through 25 some of the information you've provided in this wound 806 1 care progress note. Where does the initial information 2 about Mrs. Destefano's vital signs and lab work come 3 from? 4 A It would come out of the chart. 5 Q And is that what you referred to earlier as a 6 chart audit? 7 A Yes. I look at that. I look at the labs. 8 Most of the information at the beginning of this was 9 right out of the chart. 10 Q Now, can you explain to us the actual wound 11 assessments that you noted during your examination? What 12 was the condition of Mrs. Destefano's right heel? 13 A She had a full thickness 3.2 by 1.5 wound on 14 her right heel that had -- that was covered with necrotic 15 tissue, and it had moderate serosanguineous drainage and 16 the surrounding area that was reddened. 17 Q What does a Stage III determination mean as 18 was noted by the nurses? 19 A They're talking about the depth of the wound. 20 Q And is this graphic on the first page of this 21 document intended to reflect your visual assessment of 22 the wound? 23 A Yes, it is. 24 Q And you mentioned serosanguineous drainage. 25 What does that mean? 807 1 A That means there's blood particles in the 2 drainage of the wound. 3 Q Is that reflective of the bloody drainage 4 noted by the nurses in their assessment on the 19th? 5 A Would you repeat the question? 6 Q Is that serosanguineous drainage that you 7 mention also comparable to the bloody drainage that was 8 noted in your progress note -- 9 A Yes. 10 Q -- that the nurses saw? 11 A Yes, it is. 12 Q Was there anything additional that you noticed 13 in relation to this wound? 14 A Well, the only other additional thing might be 15 that the wound had previously been opened before, there 16 had been a previous wound there before. 17 Q Did you suggest a wound care plan for the 18 right heel of Mrs. Destefano? 19 A Yes, I did. 20 Q What did that plan consist of? 21 A The recommendation was to clean the wound with 22 normal saline, apply Accuzyme to necrotic tissue, dress 23 with 4-by-4 gauze and wrap with KERLIX and change q.d., 24 which is every day and as needed. 25 Q In addition to the wound on her right heel, 808 1 did you note any other wounds on Mrs. Destefano's body? 2 A Right. She also had a sacrum wound. 3 Q And what is the sacrum? 4 A It's basically the bottom where the tailbone, 5 around the tailbone area. 6 Q And -- 7 A On the bottom. 8 Q -- and what was the condition -- excuse me. 9 I'm sorry. Had you completed your answer? 10 A Yes. It's by the buttocks. 11 Q What was the condition of Mrs. Destefano's 12 sacrum when you did your assessment? 13 A Okay. This one also had been a previous 14 opened area. It was healing. It was a 2.0 centimeter by 15 .7 centimeter partial thickness. It was in a healing 16 process, and it had scant serous drainage, and the area 17 was reddened around it. 18 Q And is the graphic on page 3 intended to 19 represent your visual assessment of that wound? 20 A Yes, it is. 21 Q Was there anything additional you noted about 22 the wound? 23 A No. 24 Q Did you suggest a wound care plan for the 25 sacrum of Mrs. Destefano? 809 1 A Yes, I did. 2 Q What did that plan consist of? 3 A Recommended that the wound be cleaned with 4 normal saline, apply to skin, prep peri wound. Dress 5 with SignaDRESS steriderm and for dressing to be changed 6 every five days or as needed. 7 Q Did you notice any other wounds on 8 Mrs. Destefano's body besides the two that you did the 9 assessments on? 10 A She had a -- she also had a Stage II intact 11 blister on her left shoulder. 12 Q And did that wound require or did that wound 13 get an individual assessment? 14 A No, it didn't. 15 Q Going back to the additional wound care 16 progress notes, the last page of the exhibit, after you 17 describe the wounds, what is the next item that you have 18 written on the wound care notes? 19 A After I said "see the graphics"? 20 Q Yes, ma'am. 21 A It said: When assessed, patient found to have 22 bright red blood on incontinence pad from unknown origin. 23 Nursing notified, aware of blood. Per nursing, M.D. to 24 examine patient. Patient to be transferred to ORMC for 25 evaluation. 810 1 Q Can you please tell us what an incontinence 2 pad is? 3 A An incontinence pad is a pad that is typically 4 used under a patient who has incontinence issues, and 5 it's used in the bed to protect the -- the bed. It 6 absorbs it away from the patient, typically. 7 Q Would you normally find an incontinence pad 8 under a patient who had had difficulty controlling her 9 bladder and/or her bowels? 10 A Yes. 11 Q What is meant by bright red blood? 12 A Bright red blood would mean like fresh blood, 13 like if you just cut yourself, it's typically red. 14 Fresh -- 15 Q Okay. 16 A -- fresh blood. 17 Q And do you recall personally notifying the 18 nursing staff about the blood on the bed pad? 19 A No. But, again, I wrote it, so obviously I 20 did. 21 MS. PETRO: No further questions for the 22 witness. 23 - - - - - 24 25 811 1 CROSS-EXAMINATION 2 BY MR. OSBORNE: 3 Q Good morning Ms. -- is it Fuchs? 4 A Fuchs, yes. 5 Q I was saying Fuchs. 6 A That's all right. 7 Q I bet a lot of people make that mistake, don't 8 they? 9 A Yes, they do. 10 Q Ms. Fuchs, your license is in physical therapy 11 assisting, correct? 12 A Yes, it is. 13 Q You hold no other licenses? 14 A That's correct. 15 Q You have two associate's degree, one in 16 physical therapy assistant and one in -- the other in 17 resource management? 18 A Yes. 19 Q You're licensed by the State of Florida as a 20 physical therapist assistant, correct? 21 A Yes. 22 Q And you note that that is governed by Florida 23 Statute Section 486? 24 A I don't remember the exact statute. 25 Q I'd like to publish for you how the Florida 812 1 Statutes describe your license under Chapter 486.021 and 2 see if that -- if you agree that's what you do. This is 3 under 486.021(6): Physical therapist assistant means a 4 person who is licensed in accordance with the provisions 5 of this chapter to perform patient-related activities, 6 including the use of physical agents, whose license is in 7 good standing and whose activities are performed under 8 the direction of a physical therapist as set forth in the 9 rules adopted pursuant to this chapter. 10 Do you agree generally that that is an 11 accurate assessment of -- 12 A Yes. 13 Q -- what a physical therapist assistant is? 14 A Yes. 15 Q Okay. And there is a provision under Chapter 16 486.021, needs supervision by a physical therapist who is 17 licensed pursuant to this chapter -- 18 A Correct. 19 Q -- under Florida law, as you understand how 20 you practice? 21 A Correct. 22 Q Let me talk to you about what the statute 23 defines what the practice of physical therapy is, and I'm 24 going to ask you the same question about whether that's 25 what you did as a physical therapist assistant. 813 1 This is under Chapter 486.021(11): Practice 2 of physical therapy means that performance of physical 3 therapy assessments and the treatment of any disability, 4 injury, disease, or other health condition of human 5 beings, or the prevention of such disability, injury, 6 disease, or other condition of health and rehabilitation, 7 as related thereto by the use of physical, chemical and 8 other properties of air, electricity, exercise, massage, 9 the performance of acupuncture, only upon compliance with 10 the criteria set forth by the Board of Medicine, where no 11 penetration of the skin occurs, the use of radiant 12 energy, including ultraviolet, visible and infrared rays, 13 ultrasound, water, the use of apparatus and equipment, 14 and the application of the foregoing or related thereto, 15 the performance of tests of neuromuscular functions as an 16 aid to the diagnosis or treatment of any human condition, 17 or the performance of electromyography as an aid to the 18 diagnosis of any human condition, only upon compliance 19 with the criteria set forth by the Board of Medicine. 20 Does that comport with your understanding of 21 what the practice of physical therapy is? 22 A Yes. 23 Q Okay. There's no mention in the Florida 24 Statutes of wound care assessment being a part of the 25 practice of physical therapy or being a physical 814 1 therapist assistant, is there? 2 A The actual term "wound care"? No, it didn't. 3 Q Not only the actual term, a wound care 4 assessment does not even fall within the parameters of 5 that definition, does it, in terms of what a physical 6 therapist does? 7 A Are you asking me do physical therapists 8 normally do wounds? 9 Q I'm asking you if, as defined by the Florida 10 Statutes, whether or not wound care assessment is 11 contemplated within that definition I just read to you? 12 A I -- I can't answer that question. I'd have 13 to be able to read the whole thing. 14 Q Well, take a look at it. 15 A But you didn't mention the words wound 16 assessment or wound anything in here, so I would say, no, 17 it's not in here. 18 Q Okay. It's not me that mentioned it. It's 19 the Florida Statutes that I read to you. 20 A Okay. 21 Q And your position, I think, is you weren't 22 acting as a physical therapist assistant at the time you 23 performed this wound care assessment, correct? 24 A No, no, no. I am a physical therapist 25 assistant. And my position, even though the title was 815 1 restorative, okay, I did work under the -- a physical 2 therapist at all times. I didn't do anything that wasn't 3 approved by a physical therapist. 4 Q All right. I think I must have given you a 5 poor question. My question really is at the time that 6 you did this wound care assessment, you weren't acting in 7 your role as a physical therapist assistant, were you? 8 In other words, you weren't performing physical therapy 9 when you did the wound care assessment? 10 A Part of physical therapy is doing wounds, yes. 11 Q Well, we talked about what the Florida 12 Statutes defined as physical therapy, and there's no 13 mention of any wound care assessment in this statutory 14 definition, is there? 15 A No, but physical therapy does wounds. 16 Q So is this Florida Statute wrong? It should 17 also say in here wound care assessment as being a part of 18 what the duties are in the practice of physical therapy? 19 A I'm not here to tell you what the statute 20 should say. I would just tell you that it is common 21 practice for physical therapy to do wounds. 22 Q You're not sure if you were working on 23 September 21st as a physical therapy assistant or as a 24 restorative coordinator? 25 A I'm always a physical therapy assistant. My 816 1 title is restorative coordinator. 2 Q Do you recall when your deposition was taken, 3 Ms. Fuchs, on August 27th, 2004? 4 A No. 5 Q Do you recall that your deposition was taken 6 and you were placed under oath? 7 A Yes. I recall that I gave two depositions. 8 Q This is your second deposition, I'll assert to 9 you. At page 14, line 24, I'm going to publish part of 10 this and ask you about it: 11 "Okay. Now, as a physical therapist 12 assistant, would you normally chart in the medical 13 records other than an additional wound care or 14 progress note in reference to wounds?" 15 And question: "Well, in reference to anything 16 actually. 17 "Answer: Under physical therapy section or, 18 again, I'm not sure what my job title was at that 19 moment, if I was a restorative coordinator or if I 20 was working in physical therapy." 21 Do you recall that testimony? 22 A Do I recall the testimony? 23 Q Yes. 24 A No, but I -- obviously, I said -- 25 Q Is it still your position you weren't sure 817 1 whether you were acting as restorative coordinator or if 2 you were working in physical therapy? 3 A I think the -- the confusion here is my job 4 title might have been restorative coordinator, but I'm 5 always a physical therapist assistant. 6 Q If you were acting as a physical therapist, 7 then that note would have been -- would have been signed 8 off by the physical therapist, not an LPN, correct? 9 A This note you're referring to? 10 Q Correct. 11 A No. 12 Q Let me rephrase. 13 A Remember, this is a team function. This isn't 14 just one person. If I'm writing a note dealing with -- 15 with a patient's exercise -- 16 Q If you were writing -- 17 A -- or such like that, then that would be 18 signed, if it needed to be signed off at all, it would 19 have been signed off by a physical therapist. But this 20 was a team note, not a physical therapy note. Does that 21 answer your question? 22 Q No. Let me rephrase it. We just established 23 under the Florida Statutes that if you're acting as a 24 physician's (sic) therapist assistant that you have to 25 act under the supervision of a physical therapist who is 818 1 licensed under this chapter; do you remember that? 2 A Sure. 3 Q And if you were acting as a physical therapist 4 assistant when you did this wound progress note, you 5 would have had to have been acting under the direct 6 supervision of a physical therapist, wouldn't you? 7 A I always work on the direct supervision of a 8 physical therapist. If there was ever any question, I 9 mean, the physical therapy was part of the team. 10 Q But if you were -- if this wound care 11 assessment was a physical therapy report, then the 12 physical therapist would have been required to sign off 13 on this note, correct? 14 A Correct. This is not a physical therapy note. 15 This is a wound assessment note. 16 Q Thank you. A restorative coordinator is when 17 a person comes off skilled therapy and goes to the 18 unskilled portion, correct? 19 A Correct. 20 Q You did assessments in the building and 21 continued with exercise, ambulation, anything to keep the 22 patients as highly functional as possible? 23 A Correct. 24 Q Your testimony is that you were not hired 25 in -- in the position you were working at Sunbelt as a 819 1 physical therapist, correct? 2 A Correct, different capacity. 3 Q And your job as a restorative coordinator, 4 that was to initially assess the patient to see if 5 they're appropriate for a bowel and bladder program. 6 That was your initial assessment, wasn't it? 7 A I don't recall. 8 Q Okay. Let me ask you again, this is your 9 first deposition, May 15th, 2000. I know you said you 10 recall that you were deposed twice, correct? 11 A Yes. 12 Q And you were under oath on both occasions? 13 A Absolutely. 14 Q This is at page 5, line 9. 15 "Question: So if you could just give me a 16 real quick description about your job for any 17 individual patient, a patient comes in, what do you 18 do for that patient? 19 "Answer: Okay. I will initially assess the 20 patient to see if they're appropriate for the bowel 21 and bladder program." 22 A Correct. 23 Q Okay. 24 THE COURT: Mr. Osborne, let's take a break 25 now. 820 1 Q You did not do an assessment of Mrs. Destefano 2 for a bowel and bladder program, did you? 3 A I don't know. 4 THE COURT: At this time we're going to take 5 about a 20-minute recess. If you'd like to go 6 downstairs, coffee, Coca-Cola, whatever you like, 7 that will be fine, and we'll reconvene -- just try 8 to be back up here at 3:30. Thank you. The Court 9 will be in brief recess. 10 (Jury exits.) 11 (A 23-minute recess was had.) 12 THE COURT: Be seated. 13 MR. OSBORNE: We turned the volume down a 14 little bit just because it was pretty loud and I saw 15 one the jurors say it's too loud. 16 (Jury enters.) 17 THE COURT: Please be seated. Mr. Osborne, 18 please continue. The Court recognizes the presence 19 of the jury. 20 (The videotaped deposition of Shelly Fuchs was 21 continued.) 22 Q It's not reflected in the document before you, 23 is it? 24 A Oh, no, that would be a different document. 25 Q Going back to your position as a restorative 821 1 coordinator in terms of your duties, if a patient was not 2 automatically picked up on skilled therapy, you would 3 assess the patient to see if some kind of exercise 4 program or ambulation program or activities of daily 5 living, which include grooming, hygiene, feeding 6 themselves, that they would need a little bit of 7 additional help with which to make sure they could stay 8 as functionally independent as possible? 9 A Correct. 10 Q Then you'd set up a program through the 11 nursing staff and/or through therapy, and your staff 12 would carry that out, correct? 13 A Correct. 14 Q Okay. Wound assessment was not a function of 15 your job as a restorative coordinator, was it? 16 A That was, like, an additional duty. 17 Q Do you recall when your deposition was taken 18 again on May 15th of 2000? Do you recall that? 19 A Okay. 20 Q Okay. I'd like you to look at pages -- I've 21 got a copy for you here. Look at pages -- starting at 22 page 4 and at line 21, and read through from that forward 23 all the way through the end of page 5, line 25, when 24 you're describing what your position as a restorative 25 coordinator involved. 822 1 A Through how far you want me to read to? 2 Q To the last line of page 5, please. 3 A (Witness complies.) Okay. I have. 4 Q Did you make any mention in this deposition 5 that your duties as a restorative coordinator included 6 wound care assessment? 7 A No. 8 Q Okay. Thank you. Would you agree with me 9 that wound care assessment has nothing to do with an 10 exercise program? 11 A Yes. 12 Q It has nothing to do with an ambulation 13 program? 14 A Correct. 15 Q It has nothing to do with activities of daily 16 living? 17 A Correct. 18 Q It has nothing to do with grooming? 19 A Correct. 20 Q It has nothing to do with hygiene? 21 A Correct. 22 Q It has nothing to do with patients feeding 23 themselves? 24 A Correct. 25 Q It has nothing to do with patients being 823 1 functionally independent? 2 A Correct. 3 Q In fact, Carolina Destefano was not a 4 candidate who needed restorative coordination, did she? 5 A I don't know. 6 Q Do you recall anything about Carolina 7 Destefano? 8 A No, I don't. 9 Q Do you know that she was end-stages 10 Alzheimer's? 11 A I'd like to refer back to my own note that I 12 have in front of me which says Alzheimer's, doesn't say 13 end-stage. 14 Q The only place your handwriting appears 15 anywhere in Carolina Destefano's medical records is on 16 the additional wound and care progress notes, correct? 17 A I don't know. I'd have to go page through 18 page through the chart to see if there is any other 19 documentation. Like I said, I don't recall this patient. 20 Q Let me refresh your memory back to your 21 deposition of August the 27th of 2004, starting at line 22 16, page 34. 23 "Question: Okay. All right. Let's keep 24 going on. Let's thumb through the rest of the 25 records and tell me if you see your handwriting 824 1 anywhere else. 2 "Answer: On the additional wound care 3 progress note, which you already have a copy of. 4 Right. Looking at Exhibit 1 -- or excuse me, under 5 Exhibit 1, that was it. 6 "Question: Okay. So it appears that you only 7 saw Mrs. Destefano on this one occasion; is that 8 correct. 9 Answer: Yes." 10 Do you recall that you reviewed the chart, the 11 medical records at that time, at your second deposition, 12 and determined that the only place your handwriting 13 appears anywhere in the chart is on the additional wound 14 care progress notes? 15 A Okay. 16 Q Okay. Isn't it true that if you look to the 17 document in front of you there -- 18 A Uh-huh. 19 Q -- isn't it true that the chart or the medical 20 locations in terms of things you copied from other 21 sources end at "additional healed sites with pink scar 22 tissue"? Do you follow me where that is, right? 23 A Yes, I see that. Without having the chart in 24 front of me, the next line might also be part of -- out 25 of the chart, but I don't recall. 825 1 Q Okay. Can I have some plaintiff's stickers, 2 please? 3 A I would have to see the nursing admission skin 4 assessment. 5 Q I'm going to show you what I'm marking as 6 Plaintiff's Exhibit No. 1. The comprehensive initial 7 nursing assessment is what I've given you, correct? 8 A Yes, it is. 9 Q And you recognize that to be a part of the 10 charting that you customarily were used to seeing at 11 Sunbelt? 12 A Yes, I do. 13 Q This was done by a registered nurse or an RN? 14 A I would assume, yes. Yes, it was. 15 Q You would agree with me that an RN is far more 16 qualified than you to do a wound care assessment, would 17 you not? 18 A Excuse me? 19 Q You would agree with me that a RN is far more 20 qualified than you to do a wound care assessment? 21 A I can't testify on someone else's abilities. 22 Q Well, I'm talking not about individual people. 23 I'm talking about someone who has the qualifications of a 24 registered nurse versus someone who is a licensed 25 physical therapist assistant. 826 1 A I would hope so. 2 Q You would agree, from your knowledge being in 3 the medical business, that an RN has far more training 4 than you do as a licensed physical therapist assistant, 5 would you not? 6 A I don't know what the -- what the requirements 7 are for an RN. 8 Q All right. But you do see on here in terms -- 9 on the admitting nursing skin assessment, that the RN did 10 also give you the information about Stage II intact 11 blister on right -- on left shoulder? 12 A Yes. 13 Q So the first information that was original to 14 you was see graphic wound assessment for dressing 15 recommendations and wound status, correct? 16 A Correct. 17 Q And you got your information from this very 18 sheet because you say nursing admission skin assessment, 19 that's the document we're talking about where you got 20 your information about the -- about the wounds, correct, 21 as noted in your chart? 22 A Say that question again, please. 23 Q Right. I've just shown you the admission 24 nursing skin assessment, and I'm just asking you to 25 confirm that when you say nursing admission skin 827 1 assessment and note -- 2 A Yes. 3 Q -- these three wounds, it came from this 4 sheet, did it not? 5 A I believe it did. I'm not sure if there was 6 an additional skin assessment form that specifically goes 7 through skin assessment, but I would believe that 8 without, you know, I mean, this was a long time ago. Let 9 me see. I would -- yes. I would probably say I got it 10 right off of this. 11 Q It appears to be verbatim, doesn't it? 12 A Yes, it does. 13 Q Okay. What is a dressing recommendation? 14 A You make a recommendation for the dressing to 15 cover the wound. 16 Q How is that different than a wound 17 documentation? 18 A Excuse me? 19 Q Do you know what wound documentation is versus 20 wound recommendation? 21 A A recommendation is a recommendation to the 22 doctor of this is what we recommend for a dressing or 23 procedures to happen. A documentation is where we're 24 actually writing this is what we saw. 25 Q Okay. Let's go to the -- let me get the 828 1 document that was put in front of you. Let's go to page 2 2 of the first exhibit you have there, and I think if you 3 look down to pain at site or pain frequency, you noted 4 pain with dressing change, correct? 5 A Correct. 6 Q Now, your testimony is that the source of this 7 information that you got was probably verbalization from 8 Mrs. Destefano, correct? 9 A I never said that's from verbalization from 10 Mrs. Destefano. 11 Q Yes. You never said that? 12 A I never said verbalization. 13 Q That's my question. My question was -- 14 A I don't recall that, but, no, typically if I'm 15 doing an assessment, I'm actually looking at the wound 16 and assessing it. I'm not -- 17 Q Let me refresh your memory back to your August 18 27th, 2004, deposition, page 32, line 3. 19 "Question: The question's going to be -- the 20 question is do you recall how you determined she had 21 pain at the site? 22 "Answer: Probably verbalization, but I, 23 without being there, I can't give you an accurate 24 answer -- 25 "Question: Okay. 829 1 "Answer: -- answer on that. It could have 2 been -- if I was taking the dressing off and she 3 said something or she -- her facial expression. I 4 can't tell you without -- and I don't remember." 5 So you'd agree with me that at the time of 6 your deposition in August of 2004, you said it was 7 probably verbalization, didn't you? 8 A Right. 9 Q Okay. 10 A And that was a good example, yes. 11 Q Okay. Let's go back to Plaintiff's Exhibit 1, 12 and I'd like you to start at the second page of the eight 13 pages there, the second page. 14 A Second page, okay. 15 Q Yeah. You follow where it says: Cognitive 16 loss, dementia; answers questions appropriately, no; 17 follows verbal commands, no; cooperative, no? 18 A Okay. 19 Q And turn to the second-to-the-last page, 20 language spoken, Spanish. 21 A Okay. 22 Q Do you speak Spanish? 23 A Very little. 24 Q And it says: Making self understood, 25 rarely/never understood. 830 1 A Okay. 2 Q Can communicate needs, no. Unclear speech. 3 You follow all that? 4 A Sure. 5 Q So would you agree with me that it's very 6 unlikely that you learned that there was pain with 7 dressing change from a verbalization by this particular 8 patient? 9 A By verbalization? 10 Q Correct. 11 A Okay. Like I said in the rest of my initial 12 testimony, okay, it could be by other things as well. 13 And if you look on the front page here, it says that she 14 also opens her eyes to pain, so -- 15 Q My question was would you agree with me that 16 it was probably not verbalization that led you to 17 conclude it was -- there was pain with dressing change? 18 A No. It was probably gesture then, gesture or 19 response to stimuli, whatever. 20 Q Let me show you another document. Let me have 21 this marked as Plaintiff's Exhibit 2. Exhibit 2 is a 22 documentation record and profile. 23 Do you recognize this as another charting 24 document at Sunbelt, do you not? 25 A I believe so. 831 1 Q This is the nursing record to note when 2 dressing changes occurs on a particular patient, isn't 3 it? 4 A It appears to be. 5 Q And we note here that there's an initial entry 6 of 9/19/99 regarding the right heel; do you see that? 7 A Yes. 8 Q And it says 7:00 to 3:00. You know that to be 9 the 7:00 to 3:00 shift, don't you? 10 A Correct. 11 Q And if you go over to the 20th, you'll see a 12 notation in regard to the, what, the right heel by a CB; 13 do you see that? 14 A Yes. 15 Q And do you know that to be Carol Boze? 16 A Her signature's down below, so I assume, yes. 17 Q And then there's another initial on the 21st 18 for a dressing change on the right heel. I represent to 19 you that was Deborah Jarrell. Do you remember a Deborah 20 Jarrell? 21 A No, I don't. 22 Q You would agree with me this is the 23 appropriate place where you would chart a dressing change 24 for Carolina Destefano, do you not? 25 A I believe so. 832 1 Q And there's no indication or notation that you 2 changed the dressing on the 21st regarding Carolina 3 Destefano, is there? 4 A No, I wouldn't. This isn't a document that I 5 would be filling out. 6 Q Because you're not qualified to change 7 dressings? 8 A No. 9 Q You can answer the question. Are you 10 qualified to make -- to do dressing changes? 11 A Yes, I am qualified to do dressing changes. 12 Q Is it your testimony that you did a dressing 13 change on -- on the 21st of September for Carolina 14 Destefano? 15 A I would say that I made a recommendation for 16 what the dressing changes were. Did I actually change 17 the dressing? I don't recall. I don't recall. 18 Q All right. 19 A But I -- I obviously had access to the wound, 20 and I looked at the wound. 21 Q If you had changed the dressing, would you 22 agree with me that would you have had to chart that 23 event? 24 A No, I don't. 25 Q So this Exhibit No. 2, which is a document 833 1 that indicates any change in dressings, you would not 2 have had to note a dressing change -- 3 A No. 4 Q -- on this document? 5 A No. 6 Q So the nurses or the LPNs who changed the 7 dressings are required to use this documentation -- 8 A Yes. 9 Q -- record? But you're not required to as a 10 restorative coordinator? 11 A No. As a member of the wound care team, I do 12 not fill out that document. 13 Q Now, you told me -- you told on direct, you 14 mentioned that the -- you recommended that the right heel 15 be changed every day and as needed, correct? 16 A Yes, change daily and as needed. 17 Q And you told me, I think, you -- well, I 18 haven't established this yet. Your work hours probably 19 would have probably been either 7:00 to 5:00 or 8:00 to 20 5:00 on the 21st of September 2000 -- or 1999, correct? 21 You can still answer. 22 A I don't recall, but that's -- I work days, so 23 probably 8:00 to 5:00, 7:00 to 4:00, somewhere in there, 24 when I get done. 25 Q That overlapped with the 7:00 to 3:00 nursing 834 1 shift, didn't it? Your work schedule overlapped with the 2 7:00 to 3:00 nursing shift? 3 A Yes. 4 Q And if you look at this -- the Exhibit No. 2 I 5 gave you for the 21st, you'll see that Deborah Jarrell 6 did a nursing, excuse me, did a wound change on the 21st, 7 sometime in the 7:00 to 3:00 shift, correct? 8 A Correct. 9 Q And it also appears that a wound change was -- 10 on the right heel was done once on the 19th, correct? 11 A No. 12 Q Take a look on the left side. It says: 13 Cleanse right heel, talks about saline, apply Accuzyme, 14 cover with gauze wrap, and it says 9/19/99. 15 A Okay. 16 Q That would appear to be a -- a change of 17 dressing to the right heel wound, would it not, on the 18 19th? 19 A No. That would appear to be what the doctor's 20 order's date was. 21 Q Okay. Would you agree with me that there was 22 a wound change on the 20th? 23 A Yes, I would. 24 Q One time? 25 A Yes. 835 1 Q Which is in keeping with your recommendation 2 of the right heel wound be changed daily -- 3 A Yes. 4 Q -- correct? And it appears that Deborah 5 Jarrell also complied with your recommendation because 6 she changed the dressing on the 21st one time, correct? 7 A Correct. 8 Q So if Deborah Jarrell changed the dressing 9 before you, it would not have needed to be changed again 10 for a second time when you came on the scene, correct? 11 A Would have been needed? 12 Q Would not have been needed. 13 A No, it wouldn't have been needed, but that 14 wasn't the point. The point was that we were doing a 15 wound assessment, which means you had access to the 16 wound. Whether the dressing was changed in the morning 17 or not doesn't have any bearing on it. You still do 18 the -- the wound assessment. You just don't not look at 19 it. 20 Q And you would agree with me that -- well, when 21 you -- when you take the -- you have to take the wound 22 dressing off to do an assessment? 23 A Yes. 24 Q Which means you change the dressing when you 25 put it back on, correct? 836 1 A Yes. 2 Q And that's -- and you'd agree with me that if 3 the dressing by Deborah Jarrell that occurred on the 21st 4 had occurred before you got there, you wouldn't have 5 needed to change the dressing, would you? 6 A I wouldn't have needed to change the dressing, 7 but I would have -- if I hadn't done the assessment yet 8 and they changed the dressing before, I still would have 9 done the assessment and put a dressing on afterwards. 10 Q Why was a second assessment done within 48 11 hours from the time that the RN did the -- what's called 12 the -- 13 A Comprehensive -- 14 Q -- admission nursing skin assessment as a part 15 of the comprehensive admission nursing assessment? 16 A Okay. That's an easy one. This was done by 17 the admitting nurse. Okay? This was done by the wound 18 care team, okay, which is more than one person. It's 19 common practice that the facility had wound care team on 20 specific days of the week go through each floor and look 21 at all the wounds in the building to make sure that all 22 the needs are being met for the wounds. 23 Q Why did your graphics not include a right 24 shoulder area dressing? 25 A I would guess because the wound was not open, 837 1 but I'd be speculating. I don't recall why. It was a 2 blister, and it's not -- it was not an open wound. But I 3 can't really give you a good answer on that, but that 4 would be my guess. 5 Q Let me show you what I'm marking as Exhibit 3 6 to your deposition. Do you recognize -- there's four 7 different pages in here. Do you recognize what types of 8 documents these are? 9 A Yes, I do. 10 Q What are these documents? 11 A The first page is the speech therapist 12 evaluation. The second page is the occupational therapy 13 evaluation. The third page is the same thing -- well, 14 no, it's different. It's occupational therapy. 15 Q Would you agree with me that if there was a 16 physical therapy evaluation done, there would have been a 17 document in the Carolina Destefano charting? 18 A Yes. 19 Q I would represent to you that there is no 20 physical therapy document. Do you have any recollection 21 other than that? 22 A No. 23 Q Okay. Would you agree with me that, going 24 back to Defendants' Exhibit 1 that you've got in front of 25 you there, that in terms of your narrative, that the only 838 1 new charted item that is indicated on here is that 2 patient found to have bright red blood on incontinence 3 pad? 4 A The only new information from the chart? 5 Q Correct, the only new information from the 6 chart, correct. 7 A Okay. Other than seeing the graphic pages? 8 Q Okay. Well, the graphic pages weren't new. 9 That was already talked about in the initial nursing 10 assessment describing those particular wounds, correct? 11 A Well, very limited, but yes. 12 Q But in terms of there's something new in the 13 chart from any source, the only new item charted is 14 patient found to have bright red blood? 15 A Okay. 16 Q Is that a "yes"? 17 A Yes. 18 Q Okay. Do you have any idea why Sunbelt would 19 say in a sworn interrogatory answer this note was made by 20 Lillie McBride, RN? 21 A Say that again. 22 Q Do you have any idea why Sunbelt would say in 23 a sworn interrogatory answer that this note was made by 24 Lillie McBride, RN? 25 A What note? 839 1 Q This narrative note of 9/21/99 contained in 2 Exhibit -- Defense Exhibit 1. 3 A No, because I don't even know who that is. 4 Q But you have testified -- 5 A That's my writing too. 6 Q You have testified that Mary Thornton was 7 there during the wound assessment, correct? 8 A Yes. It's common practice that the nurse 9 manager be part of the wound team and assist with the 10 assessments. 11 Q Because all of your wound assessments are 12 cosigned by a nurse, correct? 13 A Correct. 14 Q Isn't it really true, Ms. Fuchs, that you 15 never did any work with or for Carolina Destefano during 16 the time of 9/21/99? 17 A Are you asking me whether I did this wound 18 assessment or not? 19 Q My question is, isn't it true that you never 20 did any work with or for Carolina Destefano? 21 A Okay. I'm not exactly sure what you're 22 referring to, but if you're asking me whether I did this 23 assessment, the answer is yes, I did the assessment. If 24 you ask me whether I did any additional restorative 25 items, then the answer is no. 840 1 Q My question is more basic than that. 2 Including this initial wound care assessment you've been 3 talking about, isn't it true that this really didn't 4 happen? That you never did any work with or for Carolina 5 Destefano at any time? 6 A I'm not really sure what you're asking me. If 7 you're asking me did I do this assessment, my answer is 8 yes, I did this assessment. 9 Q All right. Let me ask you -- 10 A If you ask me did I look at this patient's 11 bottom and look at her heel, the answer is yes, I did 12 this assessment. It's written right here. 13 Q Let me ask you this way. Do you recall when 14 your deposition was taken on May 15 of 2000 and you were 15 under oath at that time? 16 A Okay. 17 Q And that was within eight months or so of 18 September the 21st of 1999, correct? 19 A Sure. 20 Q And would you agree with me that your 21 recollection back on May 15th of 2000 as to the events of 22 September 21st of 1999 would be fresher than they are 23 today? 24 A Absolutely. 25 Q I'd like you to -- I'd like to read the 841 1 following questions and answers to you at page 6, line 5. 2 "Question: Did you ever work with Carolina 3 Destefano? 4 "Answer: No. 5 "Question: Do you know who that is? 6 "Answer: Only by name. No, I do not 7 otherwise. 8 "Question: But you never did any work with 9 Carolina -- with Carolina or for Carolina Destefano? 10 Answer: No." 11 Do you recall those questions and answers? 12 A All right. 13 Q Would you agree with me that this testimony, 14 again, is fresher to your memories of September 21st than 15 what you're saying today? 16 A Sure. 17 Q And you knew -- 18 A Let me -- can I ask you something? 19 Q Let me ask you something. 20 A Okay. 21 Q You knew back in May of 2000 that Larry 22 Destefano had been picketing at Sunbelt, correct? 23 A Do I know that he was picketing? Yes. Do I 24 remember the exact dates? No. 25 Q I didn't ask you the exact dates, but you knew 842 1 he was picketing? 2 A Yes. 3 Q In fact, your deposition on May 15 of 2000 was 4 for a criminal action because he was arrested for being 5 out there picketing, correct? 6 A Correct. 7 Q So you certainly knew who Larry Destefano was 8 back in May of 2000, correct? 9 A Okay. Yes. 10 Q And you certainly, in terms of your care and 11 treatment of Carolina Destefano, you would agree with me 12 that Larry Destefano had been picketing virtually from 13 September of 1999 certainly up to the date of your 14 deposition on May 15 of 2000, correct? 15 A Like I said, I don't recall the dates, but I 16 know he was out there for a long time. 17 Q He was out there every day, correct? 18 A Yeah. 19 Q "Yes"? 20 A Yes. I said yes. 21 Q So you -- in terms of these events as they 22 were unfolding from September to May of 2000, these were 23 kept fresh in your mind because Mr. Destefano was out 24 there as a reminder because he was picketing in front of 25 your place of employment literally every day, correct? 843 1 Do you remember the question? 2 A No, I do not. 3 Q Would you read the question back, please, 4 Madam Court Reporter? 5 A With the events -- the events of myself, yes. 6 MR. OSBORNE: Let's go off camera. If we can 7 take just a break, I think I might be finished. 8 THE VIDEOGRAPHER: The time is 9:28 a.m., off 9 the record. Time is 9:34 a.m., on the record. 10 MR. OSBORNE: Plaintiff has no further 11 questions. 12 - - - - - 13 CROSS-EXAMINATION 14 BY MR. EVANS: 15 Q Good morning, Ms. Fuchs. My name is David 16 Evans, and I represent Orlando Regional Healthcare, and I 17 just have a very small list of questions for you this 18 morning. 19 My first one is have you ever been employed by 20 Orlando Regional Healthcare? 21 A No, I haven't. 22 Q Did you have any contact with Orlando Regional 23 Healthcare in connection with Carolina Destefano in 24 regard to her transfer to Orlando Regional Healthcare? 25 A No, I didn't. 844 1 Q Now, in the record, it says ORMC. Do you take 2 that to mean Orlando Regional Medical Center? 3 A Yes. I was told by nursing that the patient 4 was going to be transferred. 5 Q And Orlando Regional Medical Center is part of 6 Orlando Regional Healthcare, did you know that? 7 A No, I didn't, but okay. 8 Q Did you have any contact with Orlando Regional 9 Healthcare in connection with Ms. Destefano in any 10 respect at all? 11 A No. No, I did not. 12 MR. EVANS: Those are all my questions. 13 MS. PETRO: Ms. Fuchs, I'm going to have some 14 brief redirect examination for you. 15 - - - - - 16 REDIRECT EXAMINATION 17 BY MS. PETRO: 18 Q Mr. Osborne showed you your deposition 19 testimony from May 15th, 2000, wherein you went through 20 your job description as restorative coordinator; do you 21 recall that? 22 A Yes. 23 Q And he pointed out to you that you did not 24 mention wound care as part of that job description. 25 Would it be your practice, being asked what you did for a 845 1 living, would you describe every detail and every 2 function of your job in that instance? 3 A No, I wouldn't. 4 Q Mr. Osborne also asked you a question 5 regarding Mrs. Destefano's verbalization of her pain. Is 6 it your previous testimony that you do not recall this 7 patient? 8 A Correct. 9 Q Do you have any recollection of how you 10 determined Mrs. Destefano had pain? 11 A No, I don't. 12 Q Could it have been determined in a manner 13 other than through verbalization? 14 A Yes, it could have. 15 Q Ms. Fuchs, approximately how many patients 16 have you seen in your career as a physical therapy 17 assistant? 18 A Hundreds. 19 Q Do you recall all of them? 20 A No, I don't. 21 Q Do you recall any specifically by name? 22 A No, I don't. 23 Q Would you remember a patient by name six to 24 eight months after doing a wound assessment on a patient? 25 A No, I wouldn't. 846 1 Q So if I asked specifically by name if you 2 recalled a specific person, what do you believe your 3 answer would be? 4 A What was the question? 5 Q If you were asked specifically and only by 6 name if you recalled a particular person, do you believe 7 it is more likely or less likely that you would recall 8 the person by name? 9 A I still wouldn't recall. 10 Q Do you recall at your deposition on May 15th, 11 2000, if you were provided with any documentation to 12 allow you to refresh your recollection as to who 13 Mrs. Destefano might have been? 14 A I don't recall. 15 (Conclusion of the videotaped deposition of Shelly 16 Fuchs.) 17 MR. OSBORNE: Your Honor, we now have a video 18 deposition of Dr. Ronald Black. 19 THE COURT: How long is the deposition, 20 Mr. Osborne? 21 MR. OSBORNE: It is 2 hours and 25 minutes. 22 THE COURT: I don't expect we'll finish that 23 tonight. 24 (Whereupon, the videotaped deposition of Ronald 25 Black, M.D., is published to the jury:) 847 1 BY MR. GLICK: 2 Q Doctor, could you please tell the jury your 3 name and your business address? 4 A My name is Ronald Anthony Black. My business 5 address is Hospital Drive, Towanda, Pennsylvania 18848. 6 Q And what is your occupation, sir? 7 A I'm a family practice physician. I have a 8 subspecialty in obstetrics. 9 Q Doctor, could you tell the jury where you are 10 licensed to practice medicine? 11 A Currently I am licensed to practice medicine 12 in the state of Pennsylvania. 13 Q And where are you originally from, Doctor? 14 A How far back do you want to go? 15 Q Let me ask you, where were you born? 16 A I was born in Pekin, Illinois. 17 Q Where did you grow up? 18 A The majority of my life I grew up in -- in and 19 around the Orlando, Florida, area. 20 Q Can you give the jury the benefit of your 21 educational background starting with college and then on 22 to the present? 23 A In college, I graduated December of 1992 from 24 the University of Central Florida in Orlando, Florida, 25 with a bachelor's degree in chemistry. Subsequent to 848 1 that, I attended Loma Linda University School of Medicine 2 in Loma Linda, California. I obtained my degree in 3 medicine, 1997. It would have been June of '97. 4 I attended an internship, 1997, 1998 at 5 Florida Hospital in Orlando, Florida, and completed a 6 family practice residency in Florida Hospital in Orlando, 7 Florida -- let me do the math in my head -- it would have 8 been 2000, I guess. Then I did a fellowship in surgical 9 obstetrics at Florida Hospital in Orlando and finished in 10 2001, if I have done the math correctly. 11 Q Okay. And, Doctor, then did you move up to 12 this area? 13 A Yes, sir, I did. I moved -- after I finished 14 my fellowship, I moved to Towanda, Pennsylvania, and have 15 been practicing here since that time. 16 Q And, Doctor, are you a part of a group or are 17 you a solo practitioner? 18 A I'm a part of a multispecialty group. I work 19 for a group called PhysicianCare. 20 Q All right, Doctor. Now, let's -- let's go 21 back into that history that you just gave us just now. 22 In September of 1999, where were you working? 23 A In September of 1999, I was working at Florida 24 Hospital in Orlando in a family practice residency, and I 25 would have been at that time -- I would have been a 849 1 second-year resident at that point -- 2 Q Okay. 3 A -- which is classified in that organization as 4 a senior resident. 5 Q And what does a senior resident do? 6 A At that time, my duties included many things, 7 but supervision over interns -- first-year residents. 8 And I conducted office hours in a -- in a family practice 9 health center clinic approximately, I don't know, 20 10 hours a week, made rounds in the hospital on varying 11 services, either internal medicine, pediatrics, 12 obstetrics. And after the second -- second year, also 13 rounded once a month on patients in Sunbelt Health 14 Nursing Home. 15 Q Doctor, do you recall a patient who was at 16 Florida Hospital in September of 1999 named Carolina 17 Destefano? 18 A I recall being involved in the care of 19 Mrs. Destefano. 20 Q And what was -- what would be your role as far 21 as Mrs -- Mrs. Destefano's care? 22 A To my recollection, Mrs. Destefano was 23 admitted into our -- our internal medicine service of 24 which I was the senior resident. Typically, on the 25 internal medicine service, the -- the ins and outs, the 850 1 daily grind, if you will, of patient care was handled 2 primarily by interns or first-year residents. 3 My job was to supervise the first-year 4 residents, to advise, assist and sort of quarterback the 5 team, for lack of a better word, make sure everybody was 6 on the right track. 7 Q Okay. Doctor, do you recall just generally 8 what problems Mrs. Destefano had when she came to Florida 9 Hospital in September of 1999? And when we're talking 10 here about -- we know from the -- all of the discovery we 11 have taken in this case that she had two admissions 12 there. We are talking about the first admission, 13 September 15th of 1999. Do you recall what problems she 14 had? 15 A To my memory -- and I haven't really consulted 16 the -- the records on this, but to my memory, she had -- 17 was admitted with sepsis. I believe it was a urosepsis. 18 She also had some problems with -- excuse me -- I'm 19 trying to get the right word -- basically some chronic 20 medical deconditioning, and she had some decubitus 21 ulcers. I believe she had one on her heel, and she also 22 had some mild ulcers on her sacrum, as I recall. 23 Q All right. Do you recall Mrs. Destefano's 24 son, Larry Destefano, who is the plaintiff in this case, 25 from that admission? 851 1 A I can't say for sure if I recall Mr. Destefano 2 from that admission, no. I recall him very well from 3 subsequent events. 4 Q Do you recall during this admission, the 5 September 15th, 1999, admission -- did you ever -- do you 6 remember ever observing Mr. Destefano caring for his 7 mother in the hospital? 8 A I remember -- I -- I can't recall with 9 certainty, no. I remember him being present at the care 10 of his mother. Whether or not he actually administered 11 care during that hospitalization I cannot recall. 12 Q Okay. I'm talking about -- I'm not actually 13 talking about care, I guess, maybe the way you're talking 14 about care. What I'm talking about is do you remember 15 him being there for his mother during that admission? 16 A Yes. I would say yes on that. 17 Q Now, during this admission, September 15th to 18 the 19th of 1999, did you ever observe Mr. Destefano 19 abuse his mother in any way, shape or form? 20 A No, I did not. 21 Q Now, during this admission of September 15th 22 to the 19th, 1999, did you ever observe Mr. Destefano 23 acting in any perverse manner in any way towards his 24 mother? > 25 A No, not to my recollection. 852 1 Q All right. Now, during this admission of 2 September 15th to the 19th of 1999, I'm going to ask you 3 a series of questions about this, but they all basically 4 begin with did you ever observe Mr. Destefano. 5 During this admission, did you ever observe 6 Mr. Destefano kneeing his mother in the back? 7 A No. 8 Q Did you ever observe Mr. Destefano during this 9 admission telling her to stand up and walk forcefully and 10 literally dragging her across the room and causing her 11 dressing to come off? 12 A Not to my recollection. 13 Q And did you ever observe Mr. Destefano pouring 14 water down her throat? 15 A I cannot recall. 16 Q You don't recall that? 17 A I don't recall. And let me quantify that. 18 Pouring water down her throat, do you mean giving 19 somebody sips of water at the bedside or -- 20 Q No, I'm talking about forcefully trying to get 21 his mother to drink water. 22 A Honestly, I can't recall. Not to my 23 recollection. I think if -- if I would take the meaning 24 in the sense that -- which is implied by your question in 25 an abusive way, absolutely not. That I am sure I would 853 1 have remembered, and I don't. 2 Q Now, during this admission, to the best of 3 your recollection, Doctor, September 15th through the 4 19th, 1999, were you ever informed by anyone that 5 Mr. Destefano was kneeing his mother in the back during 6 that admission? 7 A No, I was not. 8 Q Were you ever informed during that admission 9 that Mr. Destefano was encouraging or forcing his mother 10 really to stand up and walk and dragging her across the 11 room causing her dressing to come off? 12 A Not to my knowledge, no. 13 Q All right. And were you ever informed by 14 anyone that Mr. Destefano was forcefully pouring water 15 down his mother's throat during that admission? 16 A No. 17 Q Now, did there come a time, Dr. Black, when 18 you did hear some of these allegations being made about 19 Mr. Destefano? 20 A Yes. 21 Q And can you tell the jury approximately when 22 that was in relation to that September 15th to 19th 23 admission? 24 A As far as the -- the allegations of kneeing in 25 the back and trying to give Mrs. Destefano to stand up, 854 1 to my recollection, the first time I heard those 2 allegations was after I had cared initially for 3 Mrs. Destefano in the Sunbelt nursing home after she -- 4 after the 19th -- admission of September 19th, she was 5 transferred to the nursing home where I assumed her care. 6 It was after that period of time. 7 Q Okay. When you're saying "after," it was 8 after she had been discharged from the nursing home? 9 A I can't -- I don't know for certainty if she 10 was discharged at that time. I believe it was after I 11 had assessed her for events, which I am sure we're going 12 to go over later during my initial intake assessment 13 where there was some question of -- of unusual behavior 14 on the part of Mr. Destefano. 15 Q Okay. I want you to assume -- and the records 16 are right there in front of you, Mrs. Destefano was in 17 Sunbelt from September 19th to 21st. She was there about 18 two and a half days. 19 A Okay. 20 Q Do you have -- what is your best recollection 21 of when you heard any allegations about Mr. Destefano as 22 far as kneeing in the back or dragging her across the 23 room causing her dressing to come off, those types of 24 allegations? 25 A Let me just consult the record here. Just a 855 1 second. 2 Q Okay. 3 A My best recollection was sometime on or after 4 the 21st of September. 5 Q All right. Do you remember -- do you remember 6 who told you about that? 7 A Honestly, I could not -- not to my memory. 8 I've seen other records you have given me that Dr. John 9 Steely was the person who told me that. If that's what 10 it written down, I guess that's what's true. I can't 11 recall, no. 12 Q Okay. All right. Doctor, let's go now to the 13 admission to Sunbelt which occurred on September 19th, 14 1999, and continued through September 21, 1999. And it 15 was -- was it your understanding that Mrs. Destefano was 16 transferred to Sunbelt at that time period? 17 A Yes, sir. 18 Q Now, what would have been your role as far as 19 Mrs. Destefano as far as her care at Sunbelt? 20 A My role would have been -- typically would 21 have been to assume the role of the primary caregiver of 22 Mrs. Destefano under the supervision of an attending 23 physician -- a licensed -- board certified, licensed 24 family practice physician who oversaw the senior 25 residents and the caregivers to the nursing home 856 1 residents. 2 Q Okay. Doctor, I provided you now with a copy 3 of your affidavit that you signed in May of 2003. Do you 4 recall signing that, Doctor? 5 A Yes, sir. 6 Q All right. Would you take a look at paragraph 7 No. 5, and it -- it said there that "I had heard 8 allegations that Mr. Destefano had kneed his mother in 9 the back, dragged her across the room causing her 10 dressing to come off and poured water down her throat 11 while at Florida Hospital, but I heard these allegations 12 for the first time weeks or even months after 13 Mrs. Destefano left Sunbelt." 14 A (Witness nods.) 15 Q Do you see that there, Doctor? 16 A Yes, sir. 17 Q Is -- is that accurate? 18 A I believe it is, yes. 19 Q Okay. All right. Doctor, let's now go on 20 to -- let's go on to the records that you have in front 21 of you, Doctor, the Sunbelt nursing home records. 22 A All right. 23 Q And I have -- basically have -- I have four 24 tabs in that folder. And what I was going to do is we 25 have had these premarked. 857 1 Doctor, we have had -- first of all, if you 2 will find there is a -- a transfer order we've -- we've 3 marked as Exhibit 1-A. Do you see that, Doctor? 4 A Yes, sir, I do. 5 Q Okay. Can you tell the jury, first of all, 6 what -- what is -- what is that document we've marked as 7 Exhibit 1-A? 8 A The -- the document is a -- a standard 9 physician order sheet which I ordered back on September 10 21st of '99 for the transfer of Mrs. Destefano to -- I 11 can't read it all -- to Orlando Regional Medical Center 12 or a facility for evaluation of bright red blood per 13 rectum. 14 Q All right. And -- 15 A Also for her tetanus shot and Pneumovax 16 immunization, if available. 17 Q All right. Now, Doctor, would you have -- 18 where would you have written that form? 19 A I would have written this form probably at the 20 nurse's station desk at Sunbelt nursing home. 21 Q All right. Let's then -- now that we have 22 identified that as 1-A, Doctor, take a look at what I 23 have marked -- or the court reporter has marked as 24 Exhibit 1-B, which is -- it says "Physician's order" at 25 the top. 858 1 A Yes, sir. 2 Q All right. 3 A You're talking about the multicolored -- this 4 one? 5 Q Yes, that's -- that's it. And that is dated 6 what date, Doctor? 7 A That's dated September 19th of 1999. 8 Q And just -- you don't have to read everything 9 on there, but basically what -- what is that sheet? 10 A This is a physician order sheet from Sunbelt 11 nursing home, Mrs. Destefano also. And what it is, is it 12 appears to be some orders that were written down with my 13 signature on them. It's not my handwriting, so I presume 14 that they were verbal orders given to one of the nurses 15 or one of the caregivers at the nursing home. 16 Q Okay. And are those basically medication and 17 treatment orders? 18 A Yes. It was standard procedure, you know, if 19 a resident was placed in a nursing facility, then 20 typically the caregiver -- the nursing facility 21 caregivers will call a physician for orders and receive a 22 verbal order over the phone so care could be initiated 23 immediately instead of waiting for the physician to get 24 there -- 25 Q Okay. So -- 859 1 A -- some period of time later. 2 Q So the September 19th, 1999, date is not -- 3 that doesn't necessarily indicate that you were in the 4 facility of Sunbelt on that day? 5 A Correct. 6 Q All right. Now, let's take a look at what has 7 been marked as Exhibit 1-C, and that is a blue, two 8 pages, says "Sunbelt Admission/Annual History and 9 Physical Form"? 10 A Uh-huh. 11 Q Do you see that, Doctor? 12 A Yes, I do. 13 Q All right. And can you just tell the jury 14 basically what that two-page form is that we have marked 15 as Exhibit 1-C? 16 A This is a standard history and physical form. 17 It's a standard form which is used as a means of 18 collecting information for medical history, objective 19 data, and pertinent physical findings when somebody is 20 admitted to a facility, in this case, the nursing home. 21 This particular form is the -- the intake form that I 22 performed on Mrs. Destefano when I went and evaluated her 23 at the facility. 24 Q And let me -- there's one more page that I've 25 tabbed there, Doctor, we've marked as Exhibit 1-D, and 860 1 it's a green page in -- in your chart. 2 A Yes, sir. 3 Q And it says, "Doctor's Progress Notes" at the 4 top of that, and this appears to be dated 9/21/99. And 5 then it says "hour." What hour is that? Are you able to 6 read that? 7 A That's a twelve -- 8 Q 12:00 noon? 9 A -- which would have been 12:00 noon. 10 Q And what is that basically? Just briefly what 11 is that narrative, if I may? 12 A This is a narrative -- is a note I wrote on 13 Mrs. Destefano's chart after I had evaluated her at the 14 facility and after allegations of alleged abnormal 15 conduct had been relayed by the nursing staff against 16 Mr. Larry Destefano. 17 Q Okay. 18 A This was a note I wrote to myself in 19 documenting the medical record that allegations were made 20 and also to explain some of the sequence of events that 21 would follow, primarily why we were transferring 22 Mrs. Destefano out of the facility and trying to 23 basically document for the medical record or future 24 events in case we have to explain what happened much like 25 today. 861 1 Q Okay. Now, Doctor, how many times do you, to 2 the best of your recollection -- and you've had an 3 opportunity to look at some of the records also, based on 4 what you've reviewed and your recollection, how many 5 times do you recall visiting or seeing Mrs. Destefano at 6 Sunbelt? 7 A I only recall to my memory being at Sunbelt 8 and examining Ms. Destefano one time. 9 Q All right. And when would that have been? 10 A I believe it was the 21st. 11 Q All right. Let's -- let's go to September 12 21st, 1999, Doctor, and if you feel comfortable reading 13 your note -- the doctor's progress note dated 9/21/99 -- 14 let me ask you, what do you recall happening with 15 Mrs. Destefano on that date? 16 A To my -- to my memory, when -- well, let me go 17 back to before I got to the nursing home, I was actually 18 in my clinic seeing patients over at the Florida Hospital 19 Family Health Center, and I received a phone call from 20 one of the nurses -- I cannot say who -- from Sunbelt 21 nursing home requesting my immediate attention at the 22 Sunbelt nursing facility because there was a problem. I 23 did not initially know what the problem was, but they 24 were quite adamant that I get over as soon as possible 25 and -- and help straighten -- straighten out whatever 862 1 issues there were -- they were having. 2 I went over, to my recollection, right before 3 lunch and evaluated -- well, initially I was met by some 4 of the nursing staff. Again, I'm not entirely sure who 5 it was, and I do believe it was one of the directors of 6 nursing that was present. But the nurses had informed me 7 that there was -- had been an altercation between some of 8 the nursing staff and Mr. Destefano regarding the care of 9 his mother. 10 At the time, my initial impression was -- as I 11 recall, by the time I got there, there had been a 12 restraining order placed in effect against Mr. Destefano, 13 so he was not present. In fact, I was told he couldn't 14 come on the premises. And if I remember, the nurses were 15 quite upset. And by upset I mean they were -- they were 16 shaken. Not necessarily angry or -- or mad, but they 17 were quite upset. 18 A couple of the nurses had made -- made 19 comments at the time. I remember that they had actually 20 felt threatened for their safety. And there was also 21 allegations of some unusual behavior, which I have 22 documented in the note, on the part of Mr. Destefano with 23 his mother. Do you want me to read what that was? 24 Q Yeah, why don't we go to the note which has 25 been marked as Exhibit 1-D. And I'm going to ask you, 863 1 Doctor, if you could read through that note. And I may 2 stop you along the way and ask you some questions, but if 3 you could go ahead and read that. 4 A All right. At the top, it has the patient's 5 name, Destefano, comma, Carolina, and it's dated 6 September 21st, 1999, at 12:00. It says: Addendum. 7 Called by director of nursing. Reports the following: 8 This morning DON had discussion -- which is the director 9 of nursing, DON -- had discussion with son, Larry 10 Destefano, parentheses, healthcare proxy. During course 11 of discussion, Mr. Destefano became very upset and 12 verbally abusive, jumping up and down, banging hands on 13 counter and slamming doors. Reportedly became upset when 14 informed that he would not be allowed to stay 24 hours 15 per day at Sunbelt. He had been -- had been sleeping in 16 patient's -- I'm sorry, had been sleeping in mother's 17 room, et cetera. Became upset, verbally abusive and 18 complaining about care his mother was receiving. 19 Director of nursing, Rachel Bean, and nurse manager, Mary 20 Thornton, both report feeling fear for their personal 21 safety. 22 Q Let me just stop -- 23 A I would like to point out -- 24 Q Yes. 25 A -- the abuse and everything. Those are what 864 1 was reported to me by the nurses. I didn't actually see 2 that myself, although, that could be construed that way 3 with the way it was written. This is what was reported 4 to me by the nurses. 5 Q Everything you read up to this point in time 6 is what the nurse -- either the director of nursing or 7 Mary Thornton, the nurse manager, told you; is that 8 correct, Doctor? 9 A As far as I know, yes. That's what the nurses 10 reported. I can't, to my recollection, remember who it 11 was, but from the documentation in my note, I presume 12 that it was Mrs. Thornton and Ms. Bean also. 13 Q All right. And I'm sorry I interrupted you. 14 I think you left off at -- you were starting with 15 subsequently. 16 A Okay. Subsequently, police were called and 17 son was removed from the premises. Trespass warrant 18 currently in effect, and son, who is care -- who is 19 healthcare proxy, is not allowed on Sunbelt Orlando 20 property. Nursing staff also reports bizarre behavior by 21 son who was observed, quotes, passionately kissing, end 22 quotes, his mother. Finally, it has been reported bright 23 red blood on bed pad, which was confirmed by nursing 24 staff. 25 Q Let me stop you there, Doctor -- 865 1 A Okay. 2 Q -- because I want to ask you some other 3 questions, and we're going to cover the whole thing, I 4 promise you that. All right. 5 So you told us now what the -- to the best of 6 your recollection, this was the director of nursing, 7 Rachel Bean, and Mary Thornton, the nurse manager, that 8 you were talking to? 9 A Correct. 10 Q And there's a note -- part of that says, 11 nursing staff also reports bizarre behavior by son who 12 was observed passionately kissing his mother, and then 13 finally son reported bright red blood on bed pad, which 14 was confirmed by nursing staff. 15 The nurses that you spoke with at Sunbelt, 16 presumably Rachel Bean and Mary Thornton, did they tell 17 you that they were the ones who witnessed the bizarre 18 behavior and the passionate kissing? 19 A I cannot recall with certainty. I -- I don't 20 believe so. To the best of my memory, the nurses that 21 were working for Sunbelt Orlando who reported to Rachel 22 Thornton -- I'm sorry -- Rachel Bean and Mary Thornton 23 had reported, you know, this alleged behavior. I don't 24 recall whether or not either one of these two ladies 25 actually saw this behavior or not themselves. 866 1 Q What is your best recollection, Doctor, as to 2 whether or not Mrs. Bean and Mrs. Thornton were reporting 3 what they had seen or is your best recollection they were 4 reporting what other nurses had seen? 5 A My best recollection is that there had been 6 some nurses who -- I don't know who they were -- had 7 described some of these events -- these allegations to 8 Ms. Bean and Ms. Thornton. I cannot recall with 9 certainty whether or not Ms. Bean and Ms. Thornton 10 actually told me that they saw these events themselves. 11 They may or may not have. 12 Q Okay. All right, Doctor. Now, at that point 13 in time, did you examine Mrs. Destefano? 14 A To the best of my recollection, yes. 15 Q All right. Now, let's go ahead and take a 16 look at what has been marked as Exhibit No. 1-D, I think. 17 Hold on one second. It might not be 1-D. 1-C, I'm 18 sorry. And it says "Sunbelt Admission/Annual History and 19 Physical." 20 A Yep. 21 Q All right. And, first of all, Doctor, in the 22 upper left-hand corner of that, it has a date, and it 23 looks like at -- at one point, it might have said -- 24 well, let me ask you. What date do you see on there, 25 Doctor? 867 1 A Well, I see -- I'm not sure. It looks like 2 9/20/99, but there is also a mark through where it might 3 have been 9/21. There is a -- there is a line through 4 the zero. 5 Q All right. I think you told us earlier that 6 you believe you examined her the one time on 9/21/99? 7 A Yes, sir, to the best of my recollection. 8 Q Okay. 9 A And it's quite possible that at the time I 10 could have written the wrong date just by virtue of 11 exhaustion. 12 Q Okay. All right. Now, Doctor, can you tell 13 the jury basically what you -- what you did on your 14 examination and what your findings were? 15 A Sure. Well, I will say typically when -- when 16 evaluating a new patient, I usually review the medical 17 records, find out what medical problems they've had in 18 the past, what medications they're on. Try and get some 19 history if they've had any surgeries, and basically get a 20 sense of what's happened before, where they are now, and 21 what needs to be done to -- to ensure adequate care or 22 good medical care. 23 I was somewhat familiar with Ms. Destefano's 24 case already, having been involved in the supervisory 25 manner in the -- in her hospitalization before she was 868 1 entered into the nursing home. And that's evidenced 2 in -- on the top of the document where it says HPI, which 3 stands for history of present illness, where I said the 4 patient was transferred from -- from Florida Hospital 5 Orlando for convalescent care. The patient has Grade 2 6 pressure sore on sacrum which was -- which had been 7 present since admission to hospital. For the benefit of 8 nonmedical personnel, in that part of the chart, that's 9 all historical data. That -- that wasn't actually 10 observed. That's what I -- what I knew before I went 11 into the room. 12 And also that she failed the swallow study at 13 the hospital, which meant that when she tried to swallow 14 food or liquids, there was a failure in the mechanism 15 that normally protects your airway so she would, in lay 16 terms, swallow down the wrong pipe and it would aspirate 17 to her lungs. 18 And also, while she was in the hospital, 19 Mr. Destefano had signed a waiver meaning that we could 20 feed his mother despite that risk. 21 The next segment is -- 22 Q Let me ask you about that, Doctor. Is that 23 something that is common? 24 A With -- it's very common with severe medical 25 illness, yeah. 869 1 Q Okay. 2 A Especially you see that with severe dementia, 3 strokes and neurologic impairment, for whatever reason. 4 That's -- that's fairly common. 5 Q All right, Doctor. What else did you -- and 6 you don't need to go through, I think, every line on this 7 annual history and physical, but, generally, what did 8 your examination entail and what were your findings? 9 A All right. Well, generally my findings were 10 Mrs. Destefano was fairly cachectic. 11 Q What does that mean? 12 A Which is doctor talk for wasted away, for lack 13 of a better word, extremely malnourished. And let me 14 just clarify, malnourished in the sense not that she 15 didn't have any food to eat, but with a -- any chronic 16 medical condition, severe dementia, stroke, severe 17 illness, renal failure, anything that lasts for a long, 18 long, long time -- and this would be several months or -- 19 or even several years in some cases, the body over a 20 period of time loses the ability to sustain itself, you 21 know, you stop taking your car to the garage, things fall 22 apart eventually. Your body gets sick, it can't take 23 care of yourself, things start to fall apart eventually. 24 That's what I mean by cachectic. 25 It's also fairly common with -- with severe 870 1 illness. Despite -- you know, given her underlying 2 condition, despite all those problems I just listed, 3 there was nothing on the exam that was surprising or out 4 of the ordinary. And on the left side of the physical 5 form where I have checked where it says normal or -- or 6 comment in it's abnormal, again, it was standard practice 7 to look for trouble and document normalcy with a 8 checkmark and only write the pertinent abnormalities. 9 So -- which is another way of saying anything 10 I don't mention was normal during the exam at the time. 11 Q All right, Doctor. Go ahead, Doctor. 12 A She did have -- during the exam, she had HEME 13 positive stool which is, again, doctor talk for blood in 14 her stool. HEME positive, on a side note, it can be 15 microscopic amounts of blood or it can be grossly 16 visible, bright red. If somebody does have bright red 17 blood, typically I write bright red blood noted on glove 18 or something like that. 19 Q Bright red blood noted on what? 20 A On glove or something like that. 21 Q Okay. 22 A The fact that I wrote HEME positive -- and to 23 my recollection, it means that I did a test with a -- 24 with a -- what's called a guaiac card and microscopic 25 amounts of blood. To my recollection, there was no gross 871 1 bleeding. 2 Q Okay. Now, you said -- you've been saying the 3 word "HEME." On there it says H-E-M-E. What does that 4 mean? 5 A That is short for hemochromatic or -- 6 hemochromic -- hemochromatic is basically Latin for 7 blood. 8 Q And you took HEME positive stool in your -- 9 the way you write that means that you found microscopic 10 amounts of blood in her stool? 11 A Correct. And what typically that would mean 12 is -- is if you do a rectal exam, there is no visible 13 evidence of bleeding. You can have a fairly substantial 14 blood loss through the stool, through the colon with no 15 visible signs. You know, you couldn't see any blood in a 16 toilet bowl or anything for that matter. 17 However, if you check microscopic amounts, 18 there would -- there would be blood loss ongoing in the 19 stool. And that can be a very small amount, but over 20 time, it can become substantial -- 21 Q Okay. 22 A -- which is why I -- which is why I always 23 check for it. I do a complete physical. 24 Q Now, Doctor -- okay. Now, and then what else 25 does it say as far as that's concerned? It says HEME 872 1 positive stool. And then what does it say right next to 2 that? 3 A Right next to that it says BRB noted on pad 4 per RN, which in English means bright red blood noted on 5 pad per RN or the nurse. 6 Q Okay. And you said -- is the pad the bed pad? 7 A Yeah. 8 Q All right. Doctor, let me ask you about the 9 microscopic amounts of blood that you found when you did 10 the guaiac card test. 11 A Uh-huh. 12 Q First of all, let me ask you, this guaiac card 13 test, is this the test basically where after you do a 14 rectal exam on a patient, you can put your gloved hand on 15 a card and then you do a microscopic examination of it? 16 A Almost correct. 17 Q Okay. 18 A It's a test where after doing a glove 19 examination on a card, you do a rectal exam. You put -- 20 swab some fecal material onto the card, and then there is 21 a chemical reacting enzyme that you drop onto the sample. 22 And if there's blood positive -- if there's blood in the 23 stool, then you'll see a color change reaction. It's 24 fairly, again, standard in the United States and most 25 industrial nations actually. 873 1 Q Doctor, what -- did you determine a cause of 2 the microscopic amounts of blood that you found in 3 Mrs. Destefano's stool on September 21st, 1999? 4 A Not definitively, no. I did have suspicions 5 at the time, but to say I actually determined what the 6 cause of it was, no. 7 Q Now, did you find any anal fissure or tearing 8 or bruising? 9 A No. 10 Q And what are fissures, tears or bruising 11 indicative of, Doctor? 12 A Well, it could be indicative of several 13 things. An anal fissure is basically a microscopic tear 14 or cut of the rectum. The most familiar example of a 15 similar condition would be chapped lips. When you get 16 chapped lips, it's a fissure of the oral -- of the lips 17 around the mouth. If you get the same thing around the 18 rectum, that's an anal fissure. 19 The -- there's a lot of things that can cause 20 it. The most common thing by far is constipation. Also, 21 any sort of forceful trauma could cause that. And the 22 last thing, which theoretically could cause it, would be 23 an extremely malnourished connective tissue disease could 24 do that too, which -- 25 Q Okay. 874 1 A -- is rare, but could do it. But as far as -- 2 I didn't see anything like that. I didn't see any 3 bruises. I didn't see any evidence of any overt cause of 4 bleeding, no. 5 Q All right. Now, Doctor, if you had seen any 6 evidence of an overt cause of bleeding like a fissure or 7 a tear or a bruising, would you have documented that in 8 the record? 9 A That would be my standard practice, yeah. 10 Q And if you had -- did you see any signs, when 11 you examined Mrs. Destefano, of abuse? 12 A No. 13 Q Would that be something that you would 14 document in the record if you saw actual physical signs 15 of abuse? 16 A Absolutely. 17 Q And why would you do that? 18 A Because -- there's a couple of reasons. One, 19 it's law in most states in this nation that if you 20 suspect signs of abuse or if there's alleged abuse, then, 21 one, you're obligated to report it. In fact, as a 22 physician or any healthcare professional, you can be held 23 accountable and actually get in trouble with the law if 24 you don't report it. 25 So if there's any question of abuse, then it 875 1 has to be documented. If there's any overt findings, any 2 subjective evidence of abuse, then that typically is 3 documented as thoroughly as possible. And it's my 4 standard practice then and it is now if there is a 5 question of abuse and I find suspected evidence of abuse, 6 I'll not only document it in the medical record, writing 7 down what I see, but a lot of times I'll actually take 8 photographs and get a completely impartial record. 9 And the reason why -- you asked why I would do 10 that? One is to preserve the chain of evidence, and two, 11 is having had the unfortunate task of treating several 12 people who have been abused, both children and adults and 13 elderly people, you want to get the SOBs that are doing 14 it. 15 Q Okay. Doctor, did you -- on your rectal 16 examination of Mrs. Destefano, did you find any evidence 17 or did you find any internal or external hemorrhoids? 18 A I'm going to say, no, not to my memory. 19 Typically, if I had, I would have documented that in the 20 record, which I did not do, so I'm going to say no. And 21 the reason I say that, if I had found them, that would 22 have been an obvious explanation for where blood may have 23 come from on the guaiac test, the HEME test. 24 Again, it's my standard practice if I find -- 25 if I find blood in the stool and I see an obvious source 876 1 where it's coming from, I'll document that not only for 2 myself for future reference but for anybody else that 3 might care for the patient down the road. 4 Q Okay. Now, Doctor, it says -- you talked 5 about it. It says BRB, which you told us is bright red 6 blood noted on pad per RN. And do you recall how the RN 7 informed you that there was bright red blood noted on the 8 pad? Was she standing there right next to you and told 9 you that? 10 A I can't recall. 11 Q Was that -- do you remember if it was in a 12 phone call or -- 13 A Honestly, I can't recall. 14 Q All right. When you went over to the 15 facility, though, and you did your examination of 16 Mrs. Destefano, did you ever see bright red blood on the 17 bed pad of Carolina Destefano? 18 A Not to my recollection, no. 19 Q Okay. 20 A Again, if I had seen bright red blood, 21 typically my usual practice would be to write there's 22 bright red blood on the pad period, you know, per me. 23 An example on the note here, it says HEME 24 positive stool. That is something I found. If a 25 nurse -- if the nurse finds HEME positive stool or if 877 1 somebody else tells me that there is blood in the stool, 2 then I will say -- even to this day, I'll say HEME 3 positive stool noted by blank. If it's myself, then I 4 write it as a direct observation as it's written in the 5 chart. If I had noted bright red blood on a pad, if 6 somebody was bleeding that much, you can believe I would 7 have written down that observation. 8 Q And you didn't? 9 A I didn't write down the observation. So 10 although I have no recollection of if I saw anything for 11 sure or not, it would be outside my standard practice if 12 I didn't write it down. 13 Q Doctor, we were just talking about -- before 14 we went off the record, we were talking about the -- your 15 not seeing any bright red blood on the bed pad of 16 Carolina Destefano, correct? 17 A Correct. 18 Q And, Doctor, you said one of the reasons that 19 you would document something like that if you did see it 20 was, to use your words, you would want to use -- one of 21 the reasons was to catch the SOB who did something like 22 that? 23 A Correct. 24 Q Okay. All right. Now, Doctor, what I want 25 you to -- right next to you now -- and we can ask the 878 1 videographer to pan over just a little bit. Doctor, I 2 want you to assume that this is the bed pad of Carolina 3 Destefano that was under her at Sunbelt nursing home. 4 A Okay. 5 Q First of all, Doctor, does this look like the 6 type of bed pads that were used at nursing homes in the 7 Orlando area or Sunbelt during that time? 8 A I can't recall for certainty, but it looks 9 characteristic of a bed pad used in nursing homes across 10 the country, so -- 11 Q Okay. I didn't -- is there anything on that 12 bed pad that -- besides any blood or stains or anything, 13 but I mean, the type of bed pad it is, is there anything 14 that stands out to you that would cause you to say, oh, 15 that's not a bed pad that would be used at Sunbelt? 16 A No. 17 Q Okay. All right. Now, Doctor, I want you 18 to -- if you can point to -- there is an area on the bed 19 pad that is darker in color and it's a circle and then a 20 line coming down from that. Do you see that, Doctor? 21 A This right here (indicating)? 22 Q Yes. Exactly, exactly, Doctor. Let me ask 23 you, Doctor, could the amount of blood, within a 24 reasonable -- I'm going to ask you this question within a 25 reasonable medical probability. 879 1 Within a reasonable degree of medical 2 probability, Doctor, could the amount of blood that you 3 found in Carolina Destefano's stool cause the amount of 4 blood that you see here on the bed pad? 5 A Well, in medical probability, the amount of 6 blood I found on Carolina Destefano's stool, I believe, 7 was -- as I alluded to before -- microscopic, which is 8 not visible blood. So in that context, no. 9 Again, it's my usual practice if a nurse had 10 said to me that there's blood on a pad and there was a 11 visible area of blood on a pad -- if somebody showed me a 12 pad and said, Doc, look at this blood on this pad, my 13 usual practice would be to make a note of that. 14 Q And you did not do that in this case? 15 A I did not do that. Whether or not, like I 16 said, Mrs. Destefano had had bleeding or not, to my 17 memory, I would say no. 18 Q And, Doctor -- and that's all we're asking for 19 here today is your best recollection. 20 A Yeah. 21 Q Doctor, did you find an injury on Carolina 22 Destefano that was consistent with that volume of blood 23 that we -- that blood on the -- on the pad that we just 24 alluded to? 25 A To the best of my recollection, no. 880 1 Q All right. Other than the HEME, the H-E-M-E 2 positive stool, Doctor, did you find any blood coming 3 from Mrs. Destefano's rectum or anywhere else? 4 A Not to my memory, no. 5 Q Did you find any physical evidence of abuse of 6 Mrs. Destefano during your examination? 7 A No, I did not. 8 Q Now, Doctor, I know you -- you've told us that 9 you did -- in your note, you've referenced the director 10 of nursing, Rachel Bean, and the nurse manager, Mary 11 Thornton. And my question to you is, Doctor, did you ask 12 either of them to speak with the nursing staff that is 13 referenced in there who had made these allegations of 14 bright red blood, passionately kissing by Mr. Destefano, 15 things of that nature? 16 A I can't recall for sure. I will say that my 17 usual practice, again, would be if somebody reports 18 allegations of this type, just as anybody else would, you 19 know, I would want to talk to the person who -- who made 20 the allegations. To my -- to my recollection, I never 21 did -- I never did talk to an individual who told me this 22 is what I saw. And to the best of my recollection, the 23 person who made the allegations -- this is, again, by my 24 memory only -- was not present by this time we got to the 25 nursing home. 881 1 Q All right, Doctor. Did you -- do you remember 2 if you reviewed the chart of Mrs. Destefano? The pad can 3 be put down now. 4 Do you remember if you reviewed the chart of 5 Mrs. Destefano when you were at the nursing home that 6 day? 7 A Could you clarify which -- the hospital chart? 8 Q Yeah, the Sunbelt chart. Would you have 9 normally done that? 10 A Typically. 11 Q Okay. Do you recall if at that time there was 12 a note by Mary Thornton at that time where she documented 13 what she observed at all? 14 A No, I don't recall. And typically when -- if 15 I review a chart, I may or may not consult the nurse's 16 notes. And, again, let me -- let me just clarify. 17 Typically review a chart in the context of which -- as I 18 understand it in my practice is -- if I review a chart 19 to -- for medical reasons -- 20 Q Okay. 21 A -- you know, if there wasn't something 22 directly concerning patient care, I would probably never 23 come across it, so -- 24 Q All right. So even if there was something at 25 that time, you're saying that you might not have read it 882 1 anyway? 2 A Well, I may or may not have. I don't know. I 3 will say that I have no memory of -- of coming across any 4 notes like that, no. 5 Q All right, sir. All right. Doctor, let me 6 ask -- let me ask you, did you sign the order -- and 7 we've talked about this just briefly, Exhibit 1-A, that's 8 your signature there where you signed the order to have 9 Mrs. Destefano transferred to ORMC? 10 A Yes, it is. 11 Q All right. I guess first could you explain to 12 the jury why was Mrs. Destefano transferred out of the 13 nursing home? 14 A Sure. Well, this is a little bit -- might be 15 a little bit hard to understand, but when I was called 16 to -- to the nursing home before we transferred 17 Mrs. Destefano, on the day that she was transferred, 18 there was quite an ethical dilemma, from a medical 19 standpoint, that I was faced with. And the dilemma was 20 this. 21 Mrs. Destefano was basically a sick woman. 22 She was demented and was not in any condition to make 23 medical decisions on her own -- her own behalf. 24 Standard medical care dictates -- there's a 25 hierarchy, you know, of who determines what care is given 883 1 to a person. Okay? When physicians go to make decisions 2 on what to do, sometimes there is not a clear course of 3 action. 4 A classic example we have already alluded to 5 was Mrs. Destefano was aspirating when she tried to eat. 6 She was getting food into her lungs. The choice becomes 7 do we feed this patient? Do we give them a feeding tube, 8 bypass the lungs and put a tube into the stomach so they 9 don't have to swallow? That's a fairly significant 10 decision to have to make, and Mrs. Destefano's not in any 11 condition to make that decision. 12 The next best thing we have is to talk to 13 either a family member or a healthcare proxy. A 14 healthcare proxy being somebody who is previously named 15 by a -- a patient to say this is the person -- if I can't 16 make medical decisions on my own, this is who you ask. 17 At the time, the healthcare proxy and the only family 18 member available was Mr. Destefano. 19 The moral dilemma which arose -- I shouldn't 20 say moral dilemma, the ethical dilemma which arose and 21 the sole impetus in my mind that resulted in the need to 22 transfer Mrs. Destefano out of the Sunbelt facility was 23 this. Mr. Destefano, who was the healthcare proxy, had 24 been removed from the premises, and there was, to my 25 understanding, a trespass warrant, or whatever you call 884 1 it, in effect. He could not come on the property. 2 Mrs. Destefano was in the hospital bed in no 3 condition to make these decisions on her own. And as a 4 physician, the question became how can I make a moral, 5 ethical medical decision for this patient? She can't 6 make the decision herself. I have to talk to the 7 healthcare proxy, who's her son. He can't come on the 8 property to -- to, you know, talk to his mother or see 9 his mother and talk to me, talk to the nurses. It 10 becomes quite difficult -- quite difficult to make any 11 meaningful decisions. 12 And even when somebody's standing by the 13 bedside, a lot of these decisions -- and the decisions of 14 the kind that had to be made for Mrs. Destefano -- are 15 always extremely difficult. This is usually a family 16 member you're talking about. You're trying to ease their 17 pain and discomfort. 18 We're so good now in medicine at treating 19 medical conditions. We can keep the body alive for an 20 astonishingly long period of time with absolutely no 21 quality of life associated with -- with the person. 22 That's something that as -- as a healthcare giver, and 23 most healthcare givers will agree with this, I'm sure, is 24 extremely difficult to do, extremely difficult. 25 I have done it in the past on several 885 1 occasions, and every single time was a case where 2 somebody had a severe medical condition, couldn't 3 respond, and we had to -- we were obligated to do 4 everything we could. It's just the way we're taught. Do 5 everything you can unless the patient says, no, I don't 6 want that, or if there's a healthcare proxy, I don't want 7 that done, especially in basic procedures and things like 8 this. 9 In the case of Mrs. Destefano, that would have 10 been extremely difficult to continue pursuit of her care 11 at Sunbelt because her -- the healthcare proxy was 12 removed from the premises. The -- that left, in my mind, 13 only very limited options. One would be to proceed with 14 medical care with, for lack of a better word, my best 15 guess. You know, do what I thought Mrs. Destefano would 16 want. Incidentally, that's the worse possible scenario 17 because, you know, doctors -- despite what other 18 physicians may think, we're not God, you know. 19 So that was what prompted the transfer. The 20 thought with the transfer to the hospital would be let's 21 get her out of this nursing home where there -- where the 22 problem has developed with the access of the healthcare 23 proxy to the patient. Get her out of the facility 24 where -- where there is no restraining rules in effect. 25 And the thought was to put -- transfer Mrs. Destefano 886 1 back to the hospital, and -- 2 Q You mean Florida Hospital? 3 A Any hospital. 4 Q Okay. 5 A Get her to a hospital where she could be 6 placed into a different nursing home facility. And that 7 was the thought. 8 At the time -- and this is, again, something 9 that I remember quite vividly. At the time, there was a 10 decision made to transfer Mrs. Destefano back to the 11 hospital. I distinctly remember one of the nurses, I 12 don't remember who it was -- 13 Q When you say back to the hospital, you -- this 14 time you mean Florida Hospital? 15 A I mean -- well, initially Florida Hospital was 16 my thought. 17 Q Right. 18 A At the time, one of the nurses, I can't 19 remember who -- who it was, but it was suggested that it 20 would be better to transfer Mrs. Destefano to a different 21 facility, ORMC. And the reason behind that was that she 22 would be in a different healthcare system, different 23 nursing home environment -- availability. And the 24 thought being -- and this I remember distinctly -- that 25 the comment was made if she goes to Florida Hospital, 887 1 she'll be back here tomorrow. We won't -- we won't 2 accomplish anything. That is the sole reason why she was 3 transferred to ORMC instead of Florida Hospital. 4 Q All right. 5 A Again -- and let me just clarify this. 6 There -- it was standard practice at the Sunbelt nursing 7 home if a patient needed hospitalization -- I shouldn't 8 say standard practice -- it was common practice to 9 transfer the patient back to Florida Hospital. That 10 doesn't mean a hundred percent of the patients went to 11 Florida Hospital. They went to ORMC and other hospitals 12 too. But I would say that the majority of the time the 13 patients were transferred back to Florida Hospital. So 14 that was the reasoning behind that. 15 Q Okay. Doctor, have you ever had, either 16 before this or since this time, a situation where the 17 person can't speak for themselves, like Mrs. Destefano, 18 and her power of attorney or healthcare proxy has -- is 19 not available or has been removed from the scene, so to 20 speak? 21 A Those are two different questions. There -- 22 there are been several times when a healthcare proxy is 23 not available. 24 Q Okay. 25 A And this case is the -- this case is the only 888 1 instance that I can recall where a healthcare proxy had 2 been removed from the scene, so to speak, and was 3 unavailable by dictation of a third-party. 4 Q Doctor, does that -- when there is a patient 5 like Mrs. Destefano who is unable to speak for herself 6 and the healthcare proxy has been removed from the scene, 7 so to speak, does that hinder the physician in giving the 8 best possible care to the patient? 9 A It depends on what you define as best possible 10 care. The best possible physical care, absolutely not. 11 That does not change the day-to-day mechanics of 12 medicine. I personally believe that it hinders the best 13 possible total care, though, absolutely. And that's what 14 I've written in the note. 15 The reason, and what I mean by that is -- is 16 not that, you know, you're going to quit giving care to a 17 human being that needs it. The point that I'm trying to 18 make is sometimes just because you can do something in 19 medicine and help somebody live longer or sometimes 20 because you can do something in medicine and fix a 21 problem doesn't necessarily mean you should. Sometimes 22 that's not the best option. 23 Equally valid in our society to obtaining 24 quality medical care -- equally valid and sometimes in 25 some cases more valid is the notion that people should be 889 1 allowed to suffer and sometimes even die with dignity. 2 And, you know, there's numerous times when -- when I've 3 been involved in care and either through circumstances or 4 sometimes even in my own -- in my own decision-making 5 that hasn't happened. And that is probably the worst 6 feeling as a healthcare giver you can have, you know. 7 Hippocrates says first do no harm. There is 8 more harm than physical harm that can be done. 9 Q Doctor, let me go back to -- we didn't finish, 10 actually, the progress note -- your progress note, 11 Exhibit 1-D, the green sheet that you have there. 12 A Okay. 13 Q And I think you had left off -- I think you 14 had read the part where it says, "Nursing staff also 15 reports bizarre behavior by son who was observed 16 passionately kissing his mother. Finally, son reported 17 bright red blood on bed pad which was confirmed by 18 nursing staff." We read that part, didn't we? 19 A I believe so, yes. 20 Q And the part where it says, "Finally, son 21 reported bright red blood on bed pad," the son didn't 22 report that to you? 23 A No, no. 24 Q Okay. 25 A This -- everything that is documented on this 890 1 page, again, was -- was reported by the nursing staff, 2 director of nursing. 3 Q All right. Then it says, "No obvious source 4 of bleeding identified, see admission sheet for exam," 5 which is what we already talked about, correct, Doctor? 6 A Correct. 7 Q And then -- why don't you read the rest of it 8 there and -- 9 A Okay. It says: Patient has frequent 10 impaction, and this -- this presumably could account for 11 the bleeding, but further evaluation is clearly needed. 12 Will transfer to ER for evaluation. Also will have staff 13 find a different facility for care, primarily because her 14 son, number one, is barred from the premises; number two, 15 is healthcare proxy; and number three, is the only known 16 relative. 17 This is, obviously, a major stumbling block 18 toward giving the best possible care which can be avoided 19 at another facility. Again, as I alluded to -- 20 Q Right. 21 A -- get the best physical care. 22 Q All right. And -- okay, Doctor. Let me -- I 23 probably have a few more things. Let me ask you, Doctor, 24 on that day, September 21st, 1999, or actually any day 25 from September 15th when she -- when Mrs. Destefano came 891 1 into Florida Hospital through September 21st, 1999, when 2 she left Sunbelt, do you ever recall calling the director 3 of nursing at Sunbelt or telling the director of nursing 4 at Sunbelt or anyone at Sunbelt that Dr. Steely had 5 informed you that Mr. Destefano had kneed his mother in 6 the back, dragged her across the room and caused her 7 dressing to come off? 8 A I cannot recall if I made a -- if I called 9 director of nursing or not. 10 Q Okay. 11 A I have no memory of that. 12 Q Okay. So you don't have any memory of that 13 happening? 14 A (Shakes head.) It may have happened. It may 15 not have happened. I can't tell you. I have no memory 16 of it. 17 Q And do you have any -- do you have a 18 recollection of Dr. Steely telling you that during that 19 admission -- during the September 15th to 19th admission? 20 A No, I don't. 21 Q Now -- 22 A I'd like to clarify that, if I may. 23 Q Sure, Doctor, sure. 24 A I do have recollection of -- of several of 25 these allegations that have been made. I did hear of the 892 1 allegations at the time. One of the things that is 2 striking and that I remember vividly was I did not hear 3 any of those recollections during the first hospital 4 admission -- sorry. I did not hear any of those 5 allegations during the first hospital admission. 6 And the first time that I remember hearing 7 that there was a problem was when I alluded to earlier I 8 got the phone that said you need to come take care of 9 this problem. Prior to that, I don't recall hearing 10 anything. 11 I heard it several times afterwards in the 12 course of the unfolding events, but that is one thing I 13 remember distinctly because, you know, something like 14 that -- it caught me off guard, frankly. 15 Q Did you ever -- you had seen Mr. Destefano 16 at -- during that first admission, September 15th to 19th 17 admission? 18 A Uh-huh, yes. 19 Q And did you talk to him during that admission? 20 A I can't recall. 21 Q Did you have an impression of Mr. Destefano? 22 Did you form an impression of what type of person he was 23 at all or -- 24 A None whatsoever. 25 Q Now, as we've alluded to earlier, in your note 893 1 of 9/21/99, the doctor's progress note marked Exhibit D, 2 it said there -- and I don't want to -- I don't want to 3 misquote any of it. It says: Nursing staff also reports 4 bizarre behavior by son who was observed passionately 5 kissing his mother, and finally, son reported bright red 6 blood on bed pad which was confirmed by nursing staff. 7 At that time, Doctor, when you received that 8 information about the passionate kissing, the bizarre 9 behavior, blood on the bed pad, what was your impression 10 or what was your interpretation of what the nurses were 11 telling you about Mr. Destefano? 12 A My impression and interpretation was 13 initially, I think as anybody's would be, was it was 14 fairly bizarre allegations to hear. And my initial 15 impression was primarily, one, I think of a professional 16 capacity. 17 Anytime a patient under my care has any 18 allegations of what could be construed as abusive or -- 19 which this clearly qualified -- or detrimental to the 20 care of the patient, my first thought is, one, try and 21 find out what happened. So that was my first -- my first 22 impression was one of an investigative mode, you know, 23 trying to talk to people that witnessed the events, which 24 I was not able to successfully find somebody who actually 25 witnessed them for the reasons I mentioned earlier. 894 1 Number two, seeing if there was any physical 2 evidence which, again, I did not find. And number three 3 is to try and document things as thoroughly as possible. 4 And, again, typically document pertinent positive 5 findings, you know, things that I actually saw. Simply 6 because documenting things I don't see would be a 7 ludicrous waste of time. It would take way too much to 8 write what I don't see. So the focus is always on 9 documenting pertinent positives. 10 My other impressions at the time were, as I 11 alluded to earlier, the nurses were quite upset. And my 12 initial response was that the events had to be reported 13 to an investigatory personnel, human resources for elder 14 abuse, which is, again, standard procedure. 15 Q Did you take these allegations that were made 16 by the nurses seriously? 17 A Absolutely. 18 Q Were these serious allegations? 19 A Absolutely. 20 Q Doctor, did you ever receive any evidence that 21 supported the allegations that the nurses had made to 22 you? 23 A I myself, I never saw any evidence, no. And 24 again, to clarify, that is not necessarily abnormal. 25 Many times with abuse there are times when abuse does 895 1 occur when there is no physical evidence. And by virtue 2 of that fact that -- that is entirely the reason why 3 anytime there is a report of abuse, we always -- as 4 medical professions, we're obligated and we do take them 5 very seriously. 6 That -- and that's a double-edge sword. 7 That's part of what we as a society have accepted as 8 the -- the -- the cross that we have to bear in elder 9 abuse is that you have to realize that every allegation 10 of abuse has to be investigated. And there is going to 11 be times and there are times when people are accused of 12 abuse when no abuse occurs. 13 The only -- there's no real good way around 14 that. The only -- and the reason why is if you don't 15 accept that burden -- if you don't accept that burden, 16 and that's been proven time and time and time and time 17 again, that you will miss -- the vast majority of 18 children, elderly and women who are abused will go 19 unrecognized. 20 Q Doctor, beyond not having any physical 21 evidence of abuse, did you receive any other evidence in 22 the form of a witness telling you that they saw any of 23 the things that were alleged? 24 A Not to my recollection, no. And in thinking 25 over the events several times in the subsequent months 896 1 and years that this occurred, I still -- I have never 2 recalled a period in my -- of time where I met somebody 3 that said I'm the one that saw this. 4 Q Now, have you -- other than the -- us showing 5 you the bed pad yesterday -- 6 A Uh-huh. 7 Q -- had you ever seen the -- the bright red 8 blood that was pointed to on the pad by you before? 9 A Not to my recollection. But in fairness, if I 10 had seen it before, I almost certainly would not have 11 remembered it anyway. 12 Q But would you have documented it? 13 A In this case, I believe I would have 14 documented it. 15 Q Now, Doctor -- 16 A And -- and the reason why I say that is 17 because I did document the nurse -- the nurse reported 18 it. 19 Q Right. 20 A There was a question of, you know, one of the 21 nurses reporting what they thought was a substantial 22 amount of bleeding. I didn't find it. And that -- if I 23 had found it at the time, if I had found evidence that 24 substantiated that, then I believe I would have 25 documented that. 897 1 Q Doctor, I want you to take a look at, if we 2 can, the transfer order sheet, which is Exhibit 1-A to 3 the deposition. 4 A Okay. 5 Q And I see you ordered a tetanus shot, and what 6 was the other type of -- 7 A A Pneumovax shot. It's an immunization for 8 streptococcus pneumonia. 9 Q Okay. Now, just out of curiosity, why -- why 10 did you order tetanus shot? 11 A Just because she hadn't had a tetanus shot in 12 quite a long time. Again, fairly standard of care would 13 be to try and update what we call health maintenance, all 14 the things that people are supposed to do to keep 15 themselves healthy. 16 In a nursing home situation, one of the 17 factors that is paramount to maintaining health not only 18 of the -- one patient, but the entire -- everybody that 19 lives in the facility is infection control. That's -- 20 that's critical. The -- to help prevent that, 21 vaccination against streptococcus pneumonia is fairly 22 common and recommended by most of the major guidelines 23 simply because it's a bad infection, and it kills people. 24 The tetanus shot, again, it's my standard 25 practice when I'm giving shots to try to update everybody 898 1 of all the immunizations they need. If they haven't had 2 a tetanus shot documented for ten years, we give it. I 3 had one case in Florida of a guy who had tetanus, so that 4 put fear in you. 5 Q Doctor, let me show you a document. We'll 6 show it to Ms. Marshall first. This was part of the 7 Florida Hospital record on the second admission after 8 Mrs. Destefano came back to Florida Hospital. Let me 9 just show you that there. 10 A Okay. 11 Q What kind of document is that, Doctor? 12 A I believe this is a -- what we call a face 13 sheet. It's -- a face sheet is a standard form in the 14 hospital that lists the patient's name, address, 15 insurance information, admitting diagnosis, date of 16 admission, things like that. 17 THE COURT: Mr. Osborne? 18 A It's primarily for billing purposes by the 19 hospital at future dates. 20 THE COURT: Thank you. Ladies and gentlemen, 21 I think we've reached about the end of our road 22 today. We've been at it long and hard. Let me ask 23 you to return to the jury room tomorrow morning and 24 be prepared to enter and resume the presentation of 25 the evidence at 8:45. Thank you. 899 1 THE COURT DEPUTY: Please rise for the jury. 2 (Jury exits.) 3 THE COURT: Court will be in recess until 8:45 4 in the morning. 5 MR. OSBORNE: Thank you, Your Honor. 6 MR. TOWNSEND: Thank you, Judge. 7 (The proceedings were recessed at 5:30 p.m.) 8 (Continued to Volume VIII) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 900 1 C E R T I F I C A T E 2 STATE OF FLORIDA) 3 COUNTY OF ORANGE) 4 I, LAURA J. LANDERMAN, R.M.R., C.R.R., certify that 5 I was authorized to and did stenographically report the 6 foregoing proceedings and that the transcript is a true 7 and accurate record. 8 Dated this 16TH day of June, 2006. 9 10 11 ___________________________________ 12 LAURA J. LANDERMAN, R.M.R., C.R.R. 13 14 15 16 17 18 19 20 21 22 23 24 25