Ch. 2 – Expanded testimony of ER physician defendant Timothy Vaughn, MD


Examination my Mr .Brannon (plaintiff attorney) and Neil Freund (defense attorney)

Q. Do you go [to the conference of the American College of Emergency Physicians] every year?

A. No, sir, I don’t.

Q. On March the 2nd, you –who was the other –was there any other emergency room physician but yourself?

A. At that time of the morning, there would have been one other physician, and I don’t recall who that is.

Q. That other physician had nothing to do with the care and treatment of David Lykins, did he?

A. That is correct.

Q. All right. And you could not read the nurse’s triage notes from March the 2nd, could you?

A. I don’t recall, sir. Again, during our deposition, the copies were not clear.

Q. Well, you did indicate to me that you do not well, let’s –the copy was this -do you have the original with you?

A. No, sir, I don’t.

Q. Do you know where the original is?

MR. FREUND: We have it, Your Honor.


Q. Did you go back and read the original note?

A. Yes, sir.

Q. And you are saying that you couldn’t read the copy that I had on the date of the deposition but you could read the original?

A. I don’t recall if I could read it on that day. I am just saying that I could not read the copy that was given during my deposition.

Q. You never read the triage nurse’s note about David Lykins before he was discharged, did you?

A. I –when a physician assistant presents a patient to us, it’s my practice to look at the chart. I like to look at vital signs, medications, allergies, and I will glance at the triage note.

Q. You did not read the triage note on David Lykins on March the 2nd, did you?

A. I don’t recall, sir.

Q. And when you attempted to read it, you said you weren’t able to make out anything but complaint of left shoulder pain, correct?

A. If that is from my deposition, I would have to review that.

Q. Right. I’ll let you look at your page ten of your deposition. Excuse me just a second while I get it.

MR. BRANNON: And just so the ladies and gentlemen of the jury know –I’m sorry again. I apologize, but I just want to show them all. May I approach the witness, Your Honor?


Q. First of all, Dr. Vaughn, is that a true and accurate copy, at least an enlargement, of what you looked at on the date of your deposition?

A. Yes, it is.

Q. Are you representing that that copy is not as good as the original as far as legibility?

A. Yes, sir.

Q. And you’re representing the reason that you couldn’t read it during the time of your deposition is because the copy that we see here is not nearly as good as the original?

A. Yes, sir.

Q. When I asked you what the triage nurse had said in her report on March 2nd, you indicated you did not know unless you read the report; am I correct?

A. I’m sorry. I don’t follow your question.

Q. Well, when I said what did the triage notes tell you about David Lykins on March the 2nd, forgetting about the copies, what did you tell me?

A. I’d have to look at my deposition, sir.

Q. Did you tell me that you had no independent recollection other than the medical records?

A. I don’t understand your question.

Q. All right. Tell me today, tell the ladies and gentlemen of the jury, what did the nurse’s triage note say about David Lykins without looking at the report.

A. He had left shoulder pain, fever, chills. He was pale.

Q. Did you know that on March the 2nd when you treated David Lykins?

A. Sir, I’m not sure what I recall about reading that chart.

Q. I gave you one copy, and Mr. Freund says my copy is a little better. If you can’t read his, read from mine.

MR. FREUND: Are you on page ten, Dwight?


Q. You then took Mr. Freund’s copy and this is what you said (providing). Would you read your answer to the ladies and gentlemen?

A. The best I can tell in this, there is a complaint of –complaint of left shoulder pain, then the next thing I can pick up is symptoms started yesterday afternoon. That’s all I can read.

Q. Now, just so we’ re clear, the original reports are with the hospital, aren’t they?

A. They would have been at that time. I believe that my counsel has them now.

Q. All right. And you are aware that the hospital kept those records, we had to get copies, are you not?

A. I’m not aware of that.

Q. Okay. So that was the best you could do from the copy given to you by your own counsel; is that correct?

A. No. I believe you gave me the copy_

Q. Well, did Mr. Freund provide me with that copy?

A. I’m not sure where the copies came from, sir.

Q. Take a look at the deposition (providing) .

A. (Witness complied.)

(Pause in proceedings.) BY MR. BRANNON:

Q. Did Mr. Freund hand you the copy?

A. Mr. Freund indicated that his copy was a little bit better.

Q. You don’t recall us using his copy, then, for you to read from?

A. No, sir, I don’t.

Q. Do you deny that that happened?

A. I’m not sure whose copy I was reading from at the time.

Q. Well, you are not implying that at the time of your deposition in November of 2000, somehow there was some kind of trickery by showing up with copies you couldn’t read but you could the original?

A. That’s no~ what I’m implying, sir. You asked if I could read those. I could not read the copies.

Q. Doctor, do you recall the treatment of David Lykins independently of the records?

A. Yes, I do.

Q. And how many times did you physically examine David Lykins?

A. I remember being back with Mr. Lykins on one occasion and may have stopped back to recheck or to talk to Mrs. Lykins at another time.

Q. So you examined your patient on one occasion?

A. That is correct.

Q. And was Mrs. Lykins with him?

A. Yes, she was.

Q. And did Mrs. Lykins ask you to perform a CT scan?

A. No, sir.

Q. Did she ask you to do laboratory work?

A. No, sir.

Q. Did Mr. Lykins ask you to do laboratory work?

A. No, sir.

Q. Did Mr. Lykins ask you to do a CAT scan?

A. No, sir.

Q. Now, if he had asked you, you would have done those things, wouldn’t you?

A. Every time I evaluate a patient, I certainly respect their wishes and their desires, and if a patient feels very strongly about a certain thing, especially a blood test, would certainly enter that into my decision-making process.

Q. But you are not saying you would give them a CBC if they asked for one, are you?

A. That’s not what I am saying. I said I would enter that into my decision-making process. If the patient felt strongly that they would feel more comfortable with a certain test, especially a CBC, I probably wouldn’t hesitate.

Q. So if Mrs. Lykins says she pleaded and protested and wanted a blood test or lab work done or a CAT scan, that wouldn’t be true, at least to you?

A. From my recollection, I had a very pleasant interaction with both Mrs. Lykins and Mr. Lykins, and there was –I don’t recall any demanding of anything.

Q. Did you understand that the triage nurse had no reported injury of his shoulder?

A. No, sir.

Q. You heard her testify to that, didn’t you?

A. I heard the nurse say that he did not mention anything about an injury.

Q. And you also heard her say that if he –she asked him, and if he would have said something, she would have recorded it. Did you hear her say that?

A. Yes, sir. On the triage note, there was nothing about an injury, which is commonly the negative that would be recorded if that were answered.

Q. And he didn’t appear critically ill on that date, did he?

A. On March 2nd, he did not appear ill. He appeared uncomfortable.

Q. Okay. Did he appear from your examination and care and treatment, he did not appear to have any organ failure, did he?

A. I saw no indication of organ failure on March 2nd.

Q. No indication of sepsis on March 2nd, correct?

A. That’s correct.

Q. You saw excruciating pain, did you not?

A. I saw a gentleman with severe left shoulder pain, correct.

Q. Well, let’s describe it. Let’s describe it. I won’t use my word. How did he seem to convey himself in regards to the amount of pain that he was in?

A. He seemed to be in severe pain when the shoulder was moved.

Q. Did he appear to be overreacting?

A. No, sir, I would never make that assessment.

Q. It’s in your medical records, isn’t it?

A. I did not dictate that. I would never make that assessment of a patient. I’ve been doing this for nineteen years, and I’ve never accused anyone of overreacting or faking.

Q. Didn’t Dr. I’m sorry –Mr. Heller come to you and say that he had talked to his family physician and that this patient sometimes tends to overreact to his medical needs?

A. At the end, sometime after Mr. Lykins had left and I saw Mr. Heller again, he did mention that that telephone conversation had occurred.

Q. Did that help you close the book on your diagnosis here?

A. No, sir.

Q. And, in fact, your diagnosis of shoulder sprain/strain was not correct, was it?

A. At the time, that was the diagnosis that I had arrived at, yes, sir.

Q. Was that the correct diagnosis that you had arrived at?

A. At that time, that was the correct diagnosis.

Q. SO it’s your testimony here today that you can state within terms of a reasonable medical probability that David Lykins had no septic process such as necrotizing fasciitis ongoing on March the 2nd of 2000?

A. If that process was occurring, then there were there were no external signs that would give us that indication.

Q. Well, is vomiting a sign?

A. Vomiting is a sign, yes, sir.

Q. And past fever is a symptom?

A. That would require some clarification. Many patients present to the emergency department complaining of fever.

Q. That’s fair enough. Did you go to him and talk to him and say, now, I’ve heard that you have had this past fever; can you clarify it for me and tell me what happened? Did you do that?

A. Yes, sir, I did.

Q. And w at did who did you talk to, Mrs. or to David?

A. I don’t recall. Maybe both of them were giving some information.

Q. Well, what information did they give you about the past fever?

A. Whenever I see that in a complaint or hear that a patient has a fever, many patients present with the complaint of fever; however, when you ask them if they have actually taken the temperature, my next step is to ask them what the temperature recording was. Many patients just feel like they have a fever and never really check the temperature.

Q. Could we talk about David Lykins? Because you cared for him, didn’t you?

A. Yes, sir.

Q. And you agree that you gave him your individual attention?

A. Yes, sir.

Q. That you didn’t just put him in a mix of statistics and just took the most likely diagnosis? Can we agree with that?

A. I examined Mr. Lykins and came up with a diagnosis.

Q. And in regards to Mr. Lykins, he did have a reported fever, did he not?

A. I asked if there was a fever, when I dictate no fever, what that means to me is the patient never checked it or the temperature was less than a hundred degrees, which I don’t feel is clinically significant.

Q. Did you ask either Mrs. or David if they had taken a temperature for fever?

A. Yes, I did.

Q. What did they tell you?

A. My –my response to that is twofold. When I ask a patient if they have had a fever, the first question is; have you checked it? If they haven’t checked it, I would document no fever. If they have checked it and it is less than a hundred degrees, I would still document no fever. I don’t feel that is a clinically significant temperature.

Q. Would you then ask if they have taken any medication for fever?

A. I had reviewed the chart, and there was no medications listed.

Q. Did you ask the patient, did you ask David Lykins or Mrs. Lykins if he had taken any medication for the fever?

A. That is asked at triage. I don’t specifically ask that question again.

Q. And at least at triage, they didn’t report that he had Phenergan that day, did they?

A. That’s correct.

Q. That would have been something for you to know?

A. Yes, sir.

Q. But you never asked the patient if he had had any medication, did you?

A. I don’t recall if I had asked or not.

Q. All right. Now, chills and sweats, would that be an important thing to know about?

A. In the face of a fever, yes.

Q. Or in the face of a past fever?

A. I wasn’t aware of any sweats. The triage note mentioned chills. I don’t know about sweats.

Q. I’m sorry. Maybe I am wrong. Let me look and see a second here. Chills, fever. Symptoms started yesterday. I apologize to you. Let me ask you this: How about pale? Does a person look pale when he’s sick sometimes?

A. I think pale is a very subjective symptom or sign if somebody is going to use that.

Q. Now, you would agree with us, would you not, that David Lykins was having an emergency medical condition on March 2nd of 2000, would you not?

A. I would disagree with that. I mean, all patients that present to the emergency department technically have an emergency medical condition.

Q. So you didn’t consider David Lykins’ case any different than all patients that presented with an emergency?

A. I evaluate all patients and listen to all patients’ histories and obtain physicals on everybody.

Q. And in this case, in this particular case, I want you to explain to the ladies and gentlemen of the jury, first of all, what are some of the reasons a person would vomit or throw up?

A. Just in general?

Q. Yes.

A. I think we can start at the head and work down. Patients with headaches, with head trauma, patients with pneumonia, sore throat, urinary tract infection, abdominal injuries. problems,

Q. Infections?

A. Patients -people with infections can vomit. It’s not necessarily related to the infection.

Q. I’m not saying necessarily, but if you are considering throwing up, isn’t it more likely that someone would throw up in general, if you want to go back to that, because they have an infection than because they have a shoulder sprain or strain?

A. Not at all, sir. We see many people with orthopedic injuries with nausea and vomiting.

Q. We? How many have you seen throw up from a shoulder sprain and strain?

A. Again, sir, I -I don’t keep -I don’t keep numbers. I evaluate everybody individually.

Q. All right. Now, up here, is this a correct dictation of what you said (indicating)?

A. I –yes, sir, it is.

Q. Would you read it to the ladies and gentlemen of the jury?

A. The patient is vomiting, and I do not have a good clue as to the cause of this other than the pain from his shoulder.

Q. Did you do any laboratory work to rule out any other process that could be ongoing?

A. No, sir. That was not indicated.

Q. Did you see the Urgent Care form?

A. No, sir, I didn’t.

Q. Did you see the phone form?

A. No, sir.

Q. Did you see any indication that Mrs. Lykins had brought David into the emergency room to rule out either a septic arthritis or a septic joint? Did you see that?

A. At some point during our interaction, the Lykins and I had discussed a septic joint. I’m not sure where that had come up. have it dictated in my note, so we talked about it.

Q. And they didn’t mention that we’re here because of the doctor sending us straight down from Urgent Care to rule out a septic joint or arthritis or some kind of infection?

A. Again, sir, I don I t recall where that information came from.

Q. So you don’t deny here today in front of the jury that either one of the Lykins or both told you they had come in to have an infection ruled out?

A. That I don’t recall.

Q. You’ve seen Urgent Care forms before, haven’t you?

A. Yes, sir.

Q. And you have read them and used them, haven’t you?

A. If the patients give them to us, we read them.

Q. And you are saying you never got this?

A. I never saw the Urgent Care form.

Q. But I believe that you have indicated previously there was nothing on the Urgent Care form that would help you; is that correct?

A. I believe what I said was I it would have been nice to have known if the patient had received Phenergan at the Urgent Care.

Q. But as far as Dr. Roth’s work-up, working diagnosis and request for lab work, CAT scan that was either on the form or called in, that would be of no assistance to you, would it?

A. As far as the physical exam, I did the whole entire physical exam myself, so Dr. Roth’s physical exam would not have been helpful, and there was no mention of CAT scan or CBC on the Urgent Care form.

Q. Said laboratory work, didn’t it?

A. No, I don’t believe it did.

Q. Lab work?

A. No, it didn’t, to the best that I can tell. I’d have to look at it again. I don’t recall.

Q. So what you are telling the ladies and gentlemen of the jury, after you have had an opportunity to review the facts of this case, review your own notes and your own care and treatment and independent recollection, you could totally have disregarded Dr. Roth’s form even if it was available to you and it would have had nothing to do with your standard of care?

A. When I receive a patient from an Urgent Care, I take the responsibility. If there was a request for a test that was ordered, I would be the one who would be responsible for doing that, so I feel that it’s my obligation to make sure that I reevaluate the patient and agree. So based on based on Dr. Roth’s note, there would be nothing else that I would need.

Q. Just a moment, please. And you would not do anything different if we went back to March 2nd, 2000, than you did on that date for David Lykins, would you?

A. Sir, I’ve had a long time to think about this case, and I can say that I would not have changed anything as I go back and look.

Q. And you will not change anything in the future as a result of it, correct?

A. That’s correct.

Q. Okay. I’m going to show you the Urgent Care form. Now, you have seen the Urgent Care form, haven’t you?

A. Yes, sir.

Q. [What does it say?]

A. Severe left shoulder pain. Septic arthritis needs ruled out.