Ch. 2 – Testimony of defense expert witness, Dave Talan, MD


Q. Good morning, Dr. Talan.

A. Good morning, sir.

Q. I understand you have a plane to catch, and I know that the Court and the jury don’t want me to belabor this too much, but I do have a few questions I would like to ask you.

A. (Nodding head up and down.)

Q. First of all, would you go back to the easel, could I trouble you, and take your [print out of the] CBC that you have in front of you and –

MR. BRANNON: May I help, Your Honor?


Q. If you would, I want you to start with the first CBC, if you would, sir, below this line (indicating), if you would.

A. What would you like me to do, write the numbers?

Q. I would like you to put the total white blood count.

A. Okay.

Q. The neutrophils and bands. Is there anything else there just on that part of it?

A. I see 6.9.

Q. What time is this?

A. This is at 10:49 on March 3rd.

Q. Okay.

A. And neutrophils is 93.2.

Q. Uh-hum. Bands?

A. And there’s no bands.

Q. Zero bands?

A. Zero bands.

Q. All right. Let’s go to the next time, please.

A. Okay. We have 1540.

Q. 1540. What’s the white blood count there?

A. 3.39.

Q. Uh-hum. Neutrophils?

A. Neutrophils are –hold on a second –twenty.

Q. And bands?

A. Sixty-seven.

Q. All right. Let’s go to the next time.

A. 2122, 3.6 and sixty-three –well, no. I’m sorry. Twelve and sixty-three.

Q. Twelve and sixty-three?

A. Right.

Q. Okay. Now, if I understand you correctly, the creation of these bands has to take place over a period of time; is that correct?

A. That’s how we think about it.

Q. It just doesn’t happen in an hour or two, does it?

A. Probably not.

Q. Okay. So if we assume that your test there shows zero bands, and some you help me do the calculation, Doctor, what is that, some five, six hours later –let’s see –six, seven hours later it’s sixty-seven, is that more probably than not accurate that it was zero at that time?  

A. It –it –

Q. Zero.

A. It very well could be zero.

Q. You honestly –in your professional opinion  —

A. I don’t think it’s a mistake. I’ve seen changes like that happen.

Q. Okay.

A. And it –I’ll tell you, just to back up, in his condition and with the infection we know he had, it is unusual but not undescribed that the white count wouldn’t be higher or the band count wouldn’t be higher but that, indeed, was how his body reacted to this infection.

Q. But, Doctor, you would agree within realms of reasonable medical certainty, it would be highly unusual, if that band count zero is accurate, to go to sixty-seven in that period of time, correct?

A. No. I think I’ve seen that many times.

Q. Okay. Now, what if I told you that they didn’t take a band count,  that that zero was just the machine didn’t differentiate between it and it didn’t differentiate the number of bands in that 93.27 Please assume that.

You wouldn’t know what the bands were, would you?

A. No.

Q. So you couldn’t make a determination if there’s a left shift, could you?

A. Right.

Q. Now, let’s take a look and see if this white blood count or the CBC –and you see later, do you see that the original was a machine count and the rest of them were hand counts?

A. Let me see. Right. Well, they’re not reported.

Q. Tell the ladies and gentlemen of the jury, then, how many bands were here to show the ladies and gentlemen of the jury what his left shift was?

A. Well, you can’t say for certain except that they didn’t report any bands. There may have been bands, I’ll concede that, but none are reported there.

Q. Well, what if they had forty bands? Would that be good?

A. Would that be good in what sense?

Q. Would that be a left shift?

A. Yes.

Q. I think you said even twelve would be a left shift, wouldn’t it?

A. A slight one, yes.

Q. Sure..And let’s take a look at the white blood count. Obviously his white blood count is dropping, correct?

A. Yes.

Q. Can we agree, Doctor, that probably his infection started on 12/1 –I’m sorry on 3/1? I don’t know where I came up with 12 –on March the 1st?

Is that basically what you would say?

A. I don’t recall exactly. I think we know he injured himself –

Q. Well, do you know that?

A. –around that time.

Q. Okay. You are assuming –your testimony and your opinion today assumes an injury, doesn’t it? A. Yes•

Q. Without the injury, your testimony is not correct, correct?

Well, not all –your opinions are not accurate if he didn’t have an injury. Would you agree with that?

A. Well, I don’t know about that. I mean, what I’m saying is this: Injury or no injury, he reported that he was doing some heavy lifting, So we’ll just take that as a given.

Q. Okay. If we –

A. We’ll call that a history that would be consistent with an injury. That’s all.

Q. Well, okay. If the patient reported that he didn’t injure himself, I didn’t hurt myself lifting, and the doctor just assumed the lifting caused him to be hurt, that wouldn’t be an injury, would it?

A. Well, I’m not exactly sure what you are saying. I’m confused by your question.

Q. I’ll get to that in a second. As I understand –and please, I understand, you are the doctor. I’m just a lawyer, but if understand from some of the publications –andI think you have worked with Dr. Infectious Diseases Expert and Dr. Henry yourself in other cases, haven’t you?

A. I think Dr. Henry, at least one case and Dr. Infectious Diseases Expert, two or three.

Q. You have been teams together on these kind of cases, haven’t you?

A. I’m not always sure that we’ve been on the same side.

Q. But you have deferred to Dr. Infectious Diseases Expert when it comes to infectious disease, have you not, to his expertise?

A. In the specific area of group A strep infection, yes.

Q. Sure. And looking on March the 1st, let’s go –and I’m going to ask you to bear with me.

We know that at some point in time, Tina Lykins took a temperature of David Lykins later on March the 1st or early March 2nd. Can we agree on that, sir?

A. At some point there was a –someone felt there was a fever. It’s not entirely clear to me if and how it was taken.

Q. Well, are you doubting Mrs. Lykins sitting there (indicating), got a fever of a hundred degrees, Doctor?

A. I’m not doubting anybody. All I can say is that I rely most on the contemporaneous medical records and secondarily on people’s reference, and there is a contradiction here where there’s specific dictation at the time that this happened that there wasn’t a documented fever.

Q. Well-

A. So that’s –I’m trying to take into account every –all the –all the facts fairly, and I would say, yes, it seems that that was the report, and it certainly could be consistent with Mrs. Lykins taking a temperature.

Q. So we don’t know that his temperature wasn’t much higher and had started to fall before she took it, do we?

A. No, I guess we can’t know that.

Q. Sure. And as I understand this issue, that you may have a high temperature, once you start failing, your temperature drops, like it did on March 1st, below normal; is that correct?

A. Look, as –as infections become very, very severe and people become moribund, like ready to die, they get colder.

Q. Uh-hum.

A. He subsequently, if I may, continued to have fevers all throughout his course for two weeks.

So in patients who rapidly die, you know, of course when a person expires, their -all systems shut down and their body temperature drops.

I don’t think your analogy completely applies here, but I’ll acknowledge that temperatures can be low with severe infection, but on the other hand, we know from his course he was capable of generating high temperatures.

Q. But he was getting treatment afterwards. You’re not saying that he couldn’t have just taken a dive on the temperature if he continued to fall, are you (indicating)?

A. I’m not –I don’t understand why you presume that.

Q. What if he had

A. I said just the opposite, actually.

Q. Well, why is it not conceivable as we understood the testimony from the other experts that he had a hundred and three, hundred and four, sweating and chilling, he –his fever started to fall because the septic process was beginning to take effect on him and his systems were beginning to be attacked, and they took it at a hundred and it continued to drop?

A. Well, look, anything’s possible. It’s really strange that in the condition he was in, his white blood cell count was not abnormal on the 3rd

Q. Well-

A. Let me just finish. But on the other hand and, again, I think I’ve answered this question two or three times now.

The reason to believe that he was not the type to just have a low temperature because of his severe infection is because he had a very severe infection for two weeks after this and mounted substantial fevers, so that would be the –that would be the facts that would go against that being a likely possibility.

Q. Well, let’s go back. As I understand both you and Dr. Infectious Diseases Expert, it’s not unusual when this infection begins that you get a very high, high white blood count that starts to drop; is that correct?

A. Well, I wasn’t here for Dr. Infectious Diseases Expert’ testimony, but I’m well versed in his writings, and his writings actually –although certainly that can happen with severe infections in general and maybe he testified to that, in this specific infection, a high total white count is not often observed.

Q. Okay. But we don’t know that he didn’t have twenty and then ten and then twelve and 6.9 and 3.9 and 3.6, do we? You don’t know that?

A. We can’t –you can’t know that because those tests weren’t done.

Q. Well, whose obligation was it to get tests done? Would it be the physician’s or the patient?

A. Well, I think you framed that question wrong. I don’t think it was their obligation in this case. I don’t think they were clinically indicated.

Q. All right.

A. And, of course, it wouldn’t be the patient’s obligation to get a test.

Q. Dr. Talan, would you agree with us here today that your opinions that you have expressed are only as good as the facts that you have assumed in evidence to be true?

A. No, I wouldn’t say that. I would say that my experience and training also have great bearing on this.

Q. Okay. And it’s your testimony here today that you would not have had an indication of suspicion for David Lykins sufficient enough to observe him before he was released from the hospital based on what you know about the case; is that correct?

A. Well, are you talking about my own personal standard or the community standard? I thought that’s what I was here to address.

Q. Well, aren’t we talking about the same? We’re talking about your testimony. Are you testifying to the standard of care or do you practice at a higher standard than these doctors?

A. No. I frankly, even considering the fact that I focus on these things almost every day, I think I could have easily missed this diagnosis and probably would have, but I just wanted to make sure I understand that we’re talking about, you know, not me with my three boards, but a reasonable doctor in the community.

Q. Well, does any of  – does Physician’s Assistant Heller have any boards at all?

A. No, not medical boards.

Q. And I believe that Dr. Vaughn only has an emergency an emergency doctor’s degree or board; is that correct? Emergency doctor?

A. I’m –I wouldn’t characterize it as

Q. Emergency physician?

A. –I wouldn’t characterize it as only. I think that’s more than sufficient to work in an emergency department.

Q. Well, sufficient. We’re talking about meeting standards of care here. Okay? But my question to you –

A. I think it meets the standard of care, just to be clear with you.

Q. Okay. Just so they have got a license, they meet the standard of care?

A. I think his experience and training meets the standard of care, let me be entirely clear on that, if that was an issue in this case.

Q. All right. Well, Doctor, let me just ask you again, based on your training, experience, and education and the history that you have received, you, too, would have discharged David Lykins with a shot of Phenergan and a note to return in two to three days with instructions concerning a sprain/strain based upon all the symptoms that he had?

A. Yes.

Q. All right. Now, let me go back, Doctor. Let me ask you, if you will bear with me, to assume the following things.

MR. BRANNON: And if you will get that chart, that would help a little bit, the chart of the signs and symptoms. MR. BRANNON:

Q. This helps me remember. If I could, Doctor, while Debbie is doing that, you did review the Urgent Care form, didn’t you?

A. Yes.

Q. Did you read Mrs. Lykins’ deposition?

A. Yes, I did. Q. And did you read all of the March 2nd and March 3rd emergency room records, sir?

A. Yes.

Q. Did you read the phone form concerning the call-in by Dr. Roth?

A. No.

Q. Did you ever hear about that?

Q. OK. Now, I’m going to ask you to assume some things here. I’m going to ask you to assume David Lykins was quite healthy, quite active, and had a very high pain tolerance; that he had visited his doctor, as you have seen, some ten times in six years and his own doctor, as you saw in the deposition, described him to be in excellent physical and mental health.

I want you to assume that he got off work from doing his normal duties, nothing different, usual lifting of patients as a paramedic.

You did know he was a paramedic, didn’t you?

A. Fire fighter/paramedic, right.

Q. Okay. Captain?

A. Dh-hum.

Q. Chief of police?

A. (Nodding head up and down.)

Q. I want you further to assume this is a man that knew something about his health. A paramedic learns about their health, don’t they?

A. Well, I don’t know, but he would be –he would have extra training about health-related matters.

Q. Sure. And you would agree with us that listening to the patient is the most important part of a diagnosis, correct?

A. Often the history is the most important.

Q. SO the history includes more than just the patient, it includes all the information provided to you by anyone else that’s provided any kind of health care to the patient.

Would you agree with that?

A. It can. It depends on in what circumstances that’s really critically important.

Q. Well

A. I don’t think I know what you are building up to. I won’t steal your thunder.

Q. No, no. Don’t steal my thunder. When is it? When can you throw the history out and when can you –

A. Well, let’s just talk about this, because I know we’ve discussed it in the deposition.

There was a phone record recorded from Dr. Roth. There was a discharge sheet apparently given to Mrs. Lykins which she conveyed, and they said something to the effect rule out septic arthritis.

In circumstances where that information would add to my independent assessment, would help me evaluate the case, that would certainly be important to attend to, retain maybe for matters like this. I don’t think in this case it would add anything, and I think the records themselves demonstrate that septic arthritis was a consideration, and my understanding from Mrs. Lykins’ deposition was that she felt that she conveyed this information verbally to the

care providers. I don’t think –to me, that information, the piece of paper, whether it was conveyed or not was not really important in evaluating whether the standard of care was provided here.

Q. Well, you are wrong. That wasn’t where I was going, so try to listen –watch for the lightning instead of listening for the thunder. All right.

A. All right. I gave you your Heller.

Q. Well, you have already explained away something I wasn’t going to ask you. But, let’s go on to something else. Is it important to listen to the patient?

A. Absolutely.

Q. When a patient since you brought it up, is it important to listen to what another doctor thinks who is a board certified internist?

A. Again, sometimes that can be very important. Other times, it will not be particularly important.

Q. So the standard is whatever you want

it to be for that particular time or is it consistent all the time, Doctor?

A. Well, you are making a generality, and unfortunately, medicine isn’t practiced in terms of generalities and cases like this aren’t decided based on sort of general things. We have to look at specifically what happened and why they might be important.

Q. Usually it’s based on whether the patient is exhibiting signs that he’s sick. Would you agree with that?

A. What is based on?

Q. Isn’t the care and treatment of a patient and the acceptableness of the treatment based on whether or not the physician is taking care of the signs and symptoms of a sick patient? Would you agree with that?

A. I –I don’t really understand your question. Obviously

Q. Let me ask you this. I’ll withdraw it. Do you send sick patients home from the emergency room, Doctor?

A. All the time.

Q. Do you send people that are sick and having symptoms that are indicative of a septic process home without working them up?

A. Well, hopefully not, but I probably have missed a few in my lifetime.

Q. All right. Well, let’s go back and let me start with my original question before we get into it. We’ve got David Lykins. This is a healthy guy, tough guy, smart guy. He gets off work at 7:30, he’s fine. Talks to his brother, going to go down, do a little estate planning for his family.

This guy has lifted and worked and built barns and he’s never been known to have a problem with vomiting, never had a problem with his shoulder, never had a problem with anything but a back where he’s had a herniated disc, and he didn’t even take work off in 21 years with that disk.

I want you to assume that in the afternoon of March the 1st, he noticed a pain, a pain like he had never had before, in his left shoulder. I want you to assume that that pain continued to build and that he had fever,

he had chills and, in fact, he did get some ibuprofen.

I want you to assume further that besides that pain, it got to be excruciating, that he could not move his arm, that he did go to an Urgent Care center where he, not the doctor, reported that this is in my muscle twice. It’s in the record, if you would like to see it, twice, muscle, muscle, and he was unable to move it.

And he threw up there at the Urgent Care center. They gave him a little Phenergan, twenty-five milligrams, and they noted that he might have some possible swelling, that he appeared to be sick, and he reported he was dehydrated. He, using what he knew, said it’s not cardiac-related, it’s not my heart.

And the Urgent Care doctor said rule out a septic arthritis process, that he called down to the emergency room and said rule out a septic joint; that Tina Lykins took her form or the Urgent Care form you have talked about down to the emergency room for them to use it, but they didn’t use it, nor did they use the health –the phone records, nor could they read the triage nurse’s notes, but I want you to take a look and see where the triage nurse, Janice Licht, indicated that he had had excruciating pain, he had a history of fever, that he had had chills, and indicated that -well, anyway, they know that he vomited two or three more times in the emergency room. All right?

And even with his vomiting, they continued to give him Phenergan. Even as he went out the door at 2:25 when he was discharged, they gave him another shot of Phenergan, and that while he was in the emergency room, he was screaming with the pain. When they tried to x-ray him and moved his arm, he screamed.

I want you to assume that the physicians or the physician’s assistant who were providing their care indicated that he wouldn’t move his arm and, in fact, as you well know, noted in the record that he tends to sometimes overreact to his health-care needs. I want you to assume that that was taken into consideration by the physicians.

I want you to consider that Tina Lykins specifically begged for a lab –set of lab tests. I want you to assume that the physician, Dr. Vaughn, noted right in his record he has had no fever, has had no fever, that they didn’t take a temperature when they released him, that he did not feel well, that he, in fact, left and immediately threw up again in the car, that he was still having excruciating pain, pain like that he described like none other he had ever had.

Now, Doctor, first of all, if you assume all those things are true, and let’s go back there, let’s not look back, let’s go back, you are standing there and you are a reasonable emergency room physician, you are telling the ladies and gentlemen of the jury that you don’t believe that an infectious process would be anywhere in your differential diagnosis as that man walked out the door?

MR. FREUND: Objection.

THE COURT: Overruled.

THE WITNESS: That was the longest question.


Q. I’m sorry, I can’t do any better, but you understood it, didn’t you?

A. I’ll try to make my answer to the point.

Q. Yeah.

A. When patients come in with all those things and maybe others or less, we consider a broad range of things, of course, including infection. But just because we consider them at the beginning, that doesn’t mean we wind up with that at the end.  And so then you engage in your history, your physical, sometimes Some lab tests, you think about the epidemiology of disease, what’s common, what’s a reasonable explanation, and then you narrow it down to what’s reasonably likely, what’s a reasonable suspicion, what’s a reasonable differential diagnosis. And I understand your case. There are features of this that could be consistent with this eventual diagnosis, but there are many that aren’t, and I won’t go into them because I did before.

Q. Just get to my question if you would, sir.

A. Yes. I’m addressing what you said in your question, and bear with me because your question was fifteen minutes and my answer still has barely a minute. Okay?

Q. Yours is a yes or no. Would you have considered it or not?

A. Okay. So I’m explaining what it means to consider. I think since that was the basis for your question finally; I’m explaining to the jury how a doctor considers things.

Q. Oh-hum.

A. So, yes, the answer is yes, with those symptoms, you would certainly consider infection among them, but at the end of this process and for the reasons I’ve gone through, which I won’t bore the jury with, I don’t think that infection was a reasonable consideration at the end of that process.

Q. Well, an infection, any infection, not this infection, you would have considered an infection, would you not?

A. Yes.

Q. All right. Now, Doctor, and I don’t mean to irritate you or bore you or anything else. I’m doing the best I can.

A. You are not irritating or boring me, but I –this takes some concentration to understand what you are getting to sometimes, so if that’s the case, I’m sure it’s nothing personal. I’ll do my best to listen.

Q. Well, I’m just an ordinary guy. I’ll do the best I can. I don’t know the medicine like you do, but let me ask you this: You indicated that you agreed with the diagnosis of muscle sprain and perhaps a muscle tear; is that correct?

A. Yes. And the isn’t it true that a CPK would have confirmed whether or not there was some tissue damage to the muscle or could have, I mean, that’s kind of even the point that if there was a muscle tear due to lifting –and I just want to digress a little bit, because it was part of your assumptions that I think weren’t portrayed exactly like the record. Every –almost every time, this patient related his pain to this lifting.

In fact, if you look at the –not only during the ER and Urgent Care visits, but if you look at the visit on the 3rd when he was SO sick, Dr. –what is it [one doctor] says he apparently had been lifting weights and he thinks that he might have pulled a muscle, and he attributed his discomfort to this initially.

I don’t think that the doctors cooked this one up, but in any case, I think that, you know, it’s –I think that’s something that you have to take into consideration when you wind up finally with your list of reasonable considerations.

Q. SO David Lykins was responsible for not giving enough information to make it an appropriate history?

A. I’m not blaming David Lykins. I think he gave the history as he as he honestly would, but, look, life is not always fair. Sometimes you lift something and you think that’s what injured you and it turns out maybe that’s the case –that’s not the case or there’s something on top of that, and unfortunately, how we practice clinical medicine relies a lot on some of these likely associations.

Q. Now, David Lykins was very sick on March 2nd, wasn’t he?

A. No, I don’t –I mean, in what sense? He had a lot of pain. His vital signs were not unstable.

Q. Wasn’t he fighting for his life on March the 2nd?

A. I mean, this is –I don’t even understand what you –why you are trying to dramatize this in your question.

Was he fighting for his life on March 2nd? We know in retrospect he had a terrible infection. It was tragic. Please, don’t misunderstand me, jury members, that I don’t feel for what happened here. But, look, the standard of care as a doctor and P.A. who would see this prospectively, I think this is a very difficult case.

Q. Well, let me just go back, and if you would just answer my questions, maybe I’ll make them shorter or easier.

Would a CPK, properly done, have shown destruction of a torn pectoralis muscle if they believed that’s what it was?

A. I’m sorry. I didn’t fully answer that question. It could have shown a number of

things. It could have –because the process undoubtedly was a lot earlier, it could have been normal. The second thing

THE COURT: That didn’t answer the question. We’re having this problem, you are not listening to the question.

THE WITNESS: All right, well I think –

THE COURT: Some of his questions are long. The question was would a CPK have shown muscle damage on the 2nd, right? Was that the question?

MR. BRANNON: Yes, if there was a torn muscle.

THE COURT: Had one been conducted.

THE WITNESS: Well, I’m answering that I beg to differ from my medical perspective.

THE COURT: Maybe I missed it. Go ahead and answer that


THE COURT: Would it have?

THE WITNESS: Yes or no? It may have, it may not have, and I’m trying to explain why.

The court: Go right ahead.

THE WITNESS: All right. So the process was early so it may have been normal, in which case the answer is no. Or because it’s early, it might have been slightly elevated, in which case the answer is yes, or in a muscle tear it could have been elevated, in which case the answer is yes, but you would still be kind of left with dealing with this fellow who relates these symptoms, very, very common association, versus a very, very rare disease with no measured temperature, no external manifestations of infection, no evidence of septic shock. You would still that’s where you would be left. So I don’t think most people would do it, nor would it be likely that the test result would be that helpful.


Q. Well, Doctor, assuming a past history of fever, excruciating pain, chills, vomiting, repeated vomiting, don’t you think a reasonable physician would go further to rule out something other than the obvious that you say you could see, obviously, a shoulder sprain?

A. Well, if I haven’t made it clear, I will make it clear, even clearer. No, I don’t think many or let’s do it positively. think reasonable emergency physicians would have done what was done here.

Secondly, even if they had, I can’t logically see how the results of a CT scan or this CBC or sed rate or those things would have likely led to this diagnosis or the operation, which was critical, sooner.

Q. Well, Doctor, let me ask you: You’ve testified previously that the redness and the swelling can sometimes be a very late sign of a deep-seated infection, correct?

A. Well, I think in this case, they tended to correlate.

Q. When you’ve treated this disease or any deep-seated infection, Doctor, you want to get to it and get it diagnosed as soon as possible, correct?

A. Yes.

Q. And when you suspect any kind of infection, you want to eliminate the most dangerous things for the patient, don’t you?

A. Reasonably so.

Q. Sure. And you agree that time is tissue with this type of a disease, correct?

A. Right.

Q. And you’ve testified that David Lykins appeared to be not that sick on the 2nd. Now, I won’t put words in your mouth, but I believe you indicated he wasn’t that sick on March the 2nd.

A. Well, again, you see, you know, these are terms that could have all sorts of meanings. He was sick in that he was in tremendous pain. He did have vomiting, so, I mean, to any average person, you would say he is sick.

Was he sick in the sense of being unstable like we would view it as an emergency specialist, unstable vital signs, high temperature, altered mental status? No, he wasn’t sick in that way.

Q. Is pain one of the signs or symptoms that you take into consideration?

A. Absolutely.

Q. Is it how you perceive his pain or is it how the patient perceives his pain?

A. Well, it’s usually patient-driven.

Q. Right. And if I ask you to assume that the physician’s assistant just assumed he was exaggerating, just assumed he was being a big crybaby in asking for all these tests, his wife was asking for all those tests, would that color your opinion concerning the care and treatment they gave?

A. Not really. I’m assuming that he did have pain and that the doctors recognized pain as a major part of his symptomatology.

What –what makes it difficult here, fairly speaking, is that these other findings that would lead reasonable care givers to this diagnosis were not present.

Q. How about the vomiting? Did he exaggerate that?

A. I never said he exaggerated anything.

Q. No. I’m asking you. You are assuming that these physicians performed an adequate examination, took an adequate history, correct?

A. Yes

Q. And, of course, whether they did or not is up to the ladies and gentlemen to decide; would you agree with that?

A. Absolutely. They’re going to make the final decision.

Q. And can you explain to me how many times from a shoulder sprain a person has vomited repeatedly in front of you after seventy-five milligrams of Phenergan or at any time? How many times have you seen a person throw up because he sprained his shoulder?

A. Well, do you have to use a patient as an example? I would like to use my six year-old, because he was in pain and he threw up in my new car.

Look, it happens. Does it happen most of the time? No. People can react very strongly to pain, and sometimes they throw up.

Q. And have you seen them throw up repeatedly from pain did your child continue to throw up repeatedly just from a sprain?

A. Well, it was kind of like one long one with like sort of

Q. How much Phenergan did you give him? How much Phenergan did you give him?

A. I was driving, so I was trying to get him to contain it in his lap, but, you know, the poor kid couldn’t quite comply with that, so

Q. Let’s talk about the lab tests here. We’re talking about David Lykins. Now, the CPK, the sed rate, the CBC, those are fairly simple tests and inexpensive, aren’t they?

A. Yes.

Q. They’re very readily available, aren’t they?

A. Yes.

Q. And you use them in your everyday practice, don’t you?

A. Yes.

Q. And you use them anytime you suspect an infection, don’t you?


Q. Any of these, any well, let’s leave the CPK out. Okay? Do you use a CBC anytime you suspect an infection?

A. No, not anytime. I think we order tests where we think the results are really going to change our management that we wouldn’t already do from our history and physical. Q. Now, I’m confused here, Doctor. Do you presuppose what a test is going to show you or do you wait for it to come back to read it?

A. No. Again, let me explain how medicine is practiced. We don’t just order tests, because even inexpensive tests, when you order them like routinely and for no good reason, become very expensive. So we think about whether the test might logically, might possibly have a result that could change what we would do. That’s how we order tests.

Q. Now, does your do you have a contract with the hospital?

A. No. I’m an employee of the hospital.

Q. You are an employee. You don’t get anything in your contract for what you save on tests to treat a patient?

MR. FREUND: Objection. Relevance.

MR. BRANNON: We have a contract, Your Honor.

THE COURT: Sustained.


Q. So let me understand, if another physician thought that someone had a septic process and his rule-out, not his diagnosis, his rule-out, was septic arthritis and the patient came in and continued to throw up and continued to complain of unbelievable pain and continued to be sick, forget the rest of it, you believe it’s in the standard of care to send him home in that condition?

A. I think that what was done here met the standard of care.

Q. An average, reasonable physician would have let David Lykins go home?

A. Yes.

Q. Wouldn’t have held him for observation?

A. No. They could have, but I don’t think it was required to meet the standard of care.

Q. Okay. Wouldn’t be required to call for an orthopedist to check out this arthritic or torn shoulder muscle now?

A. No.

Q. Who treats torn shoulder muscles?

A. Primary care doctors, emergency physicians, orthopedists, family practitioners, sports medicine specialists.

Q. How was it treated here? How was his muscle sprain treated here?

A. He was given pain medicine, he was given a sling, he was told to ice it and to follow up with his physician.

Q. And would it have been reasonable to call a fellow like you, an infectious disease specialist?

A. I don’t think it was required to meet the standard of care.

Q. But it wouldn’t be unreasonable, would it?

A. Well, I mean, especially in cases like this, looking back on it, it would have been very reasonable, but that’s not how we evaluate these things.

I don’t think that with this presentation, and for the reasons I’ve given now many times, that any additional care was required to meet the standard of care.

Now, had they gotten additional care, additional consultations, certainly would have still been within the standard of care.

Q. So you agree with the Defendants in this case that if this happens again in the future, it should be handled exactly the same way; is that what you are saying?

A. Yeah. Well, of course, this is pretty acutely painful for everybody here to think of an upstanding citizen like this getting something that, you know, frankly, the diagnosis was probably there early and was missed, I think reasonably so. I don’t think that could have been avoided. I’m sure everyone feels bad about it.

You know what I do when stuff like that happens? It makes me so overreact the other way with the subsequent cases that I probably make mistakes by being too careful. That’s not right either.

Q. Doctor

A. I don’t I would say, look, based on what happened, at this point in time, not knowing anything else about the outcome, the same thing should be done again.  Now, 99.9999 times out of a million or whatever, it’s going to be right, and one time out of a million, it might be wrong.

Q. And, Doctor, are you saying that you can never be too careful? As a physician, you can never be too careful?

A. Well, it comes down to what’s reasonable. There’s an entity, sir, where we know people can have silent heart attacks. Can you imagine? We could all be having silent heart attacks.

You might I mean, so if someone comes in with a sprained ankle and I ask them is there anything else bothering you? No, I sprained my ankle. Anything else? Do you have pains anywhere else? Shortness of breath? No.

If I did testing of everybody whether they had no symptoms, put them in the hospital just because I could never be too careful, I think we all understand that that would be unreasonable.

The question is what is reasonable, and that’s how I’m looking at this case.

Q. Well, let me ask you, we’re not

A. Without exaggeration, I think that it has to be confined within what would be medically reasonable.

Q. I’m asking without exaggeration. I’m not asking for us to pretend that we’re all having silent heart attacks or anything like that.  I’m asking you to put yourself in that room with this responsible citizen, paramedic, with his wife, screaming from pain, can’t move his arm, and continually throwing up. Are you telling the ladies and gentlemen of the jury with that and the history that was available, whether they bothered to look at it or not, you don’t think it would have been reasonable to at least rule out an infection?

A. I think they reasonably excluded infection based on their history, physical, and the laboratory tests that they did.

Q. Are you aware that they missed what medications he was taking?

MR. FREUND: Objection.

THE COURT: Excuse me just a minute. Basis?

MR. FREUND: That’s a conclusion that’s not supported by anything.

MR. BRANNON: Medications, none. You saw that in the record, didn’t you?

MR. FREUND: Right.

THE COURT: All right. Overruled. You may go ahead.


Q. Yeah. Medications, none. Didn’t get the medications, did they?

A. Well, they may have missed it or, alternatively, he may not have mentioned them when they asked him.

Q. Or they may have said it and they didn’t care and write it down, right?

A. I don’t want to even –anything’s possible, I guess.

Q. Well, what if I told you that they wouldn’t listen to Mrs. Lykins about what medication he had, that they wouldn’t listen to him about what he had been ordered? Would that be possible?

A. I think physicians should listen to ‘ the patient and to their wife.

Q. And when the doctor –did you see where Dr. Vaughn on the 3rd wrote down he vomited a little?

Was that consistent with your understanding of how he presented himself on the 2nd?

A. I’m not sure where you are referring to.

Q. Have you looked at the March 3rd emergency room record where Dr. Vaughn indicated he was here yesterday, gave a history of pulling on some patients, and had vomited a little?

A. I’ll turn to that. Okay. What’s -what about that?

Q. Well, I mean, is that consistent with your understanding of the presentation of David Lykins on the 2nd?

A. Well, there are conflicting reports of how much he vomited.

Q. Yeah. The records don’t reflect he vomited at all, do they, the medical records?

A. No, I don’t think so. I think it does say that he had vomiting.

Q. Take a look in the emergency room record of March 2nd and tell us how many times they wrote down that he vomited so we can be accurate.

A. What it says here, the patient is vomiting, it says, in Dr. Vaughn’s note.

Q. Okay. Well, how many times does the nurse note he’s vomiting?

A. The nurse doesn’t note vomiting.

Q. Okay. And there’s nothing in the medical records as far as what’s been presented in the record or in the absence of the record that gives you any indication of substandard care?

A. No. I mean, I –I think the totality of this met with the standard of care for the reasons that I’ve said.

Q. And a physician that would rely upon a family physician or a physician assistant to indicate that you should consider exaggeration here –or, I’m sorry, overreacting here, was within the standard of care?

A. Well, I don’t know if he relied on him. That’s –it was built into the assumptions in your question, but I think what I saw of the evaluations by Mr. Heller and Dr. Vaughn, I think it was clear that the patient had pain, received medication for pain, and I think the evaluation met with the standard of care.

r don’t think this diagnosis could have been made by reasonable emergency physicians.

Q. And you would agree that their evaluation did not consider or rule out any type of infection, would you not?

A. No, I I wouldn’t agree with that, and, again, I will get back to what I said, briefly, previously is that we don’t typically rule out things. We reasonably exclude them. This was reasonably excluded because of the history, the mechanism that was related, physical examination findings, the likelihood of this disease versus a very, very common and associated type of reason to cause this gentleman’s pain, indeed, the one that he had offered.

And on the basis of that, I think infection as a cause of this was reasonably excluded. Was it ruled out beyond an absolutely infinitesimal shadow of a doubt? No, but that is not how medicine can be practiced.

Q. What laboratory or CAT scan test or any other test was used to even rule it out at all?

A. The none of those tests were indicated, as I’ve said. I’ll say it again. Had they been done, it’s unlikely they would have led to the diagnosis. The way this infection was reasonably excluded was based on the history and physical examination findings and the tests that were done.

Q. Doctor, how many times in your career and history have you found people getting routine tests having some very abnormal findings that are going on?

A. Very rarely.

Q. Doesn’t happen. People going in for their monthly exam or going in for their gynecological exam expect to be fine and it doesn’t come out. Does that happen?

A. It doesn’t happen often. Generally confine doing my tests to where I have a reason to expect that the result might help me.

Q. Dh-hum. Well, most of us are never going to get prostate cancer even though we’re men, so we shouldn’t have a prostate exam?

A. No, but you are mixing apples and oranges here. Screening for prostate cancer in men over fifty is different than doing a battery of tests for everybody that comes in with what to all for all intents and purposes looks like a muscle strain with no external manifestation of anything to suggest infection.

Q. So if it looks like a muscle strain, it seems like a muscle strain, a doctor is in the position in the standard of care to say it is a muscle strain; is that what you are telling me?

A. Yes. After –after looking at a broad range of considerations, going through a history and an exam and sometimes some laboratory tests.

Q. Sometimes. Sometimes. What laboratory tests? I’d like to know what sometimes is at least. Which ones and what times?

A. Well, I think I agree with getting an x-ray in this case. I think the pain was obviously severe. It was localized by all the care givers to around the joint. The joint is an orthopedic structure and would be well-demonstrated on x-ray, so the x-ray made sense. It fit with the fact that this was a vigorous man who did heavy lifting and could have had some type of orthopedic finding there, so I would order that. There would be a reasonable Heller I might find something that could do something about.

Q. And-

A. I don’t think these other –I don’t think the other tests that we mentioned would be indicated.

Q. SO if Dr. Roth said do a CAT scan and do the laboratory blood tests, he was being unreasonable?

A. In my opinion, yes. Now, the one thing he could have suggested or we haven’t discussed could be an aspiration of the shoulder if you thought it was a septic joint, but even that would –obviously there was no septic joint, and that wouldn’t have led to this diagnosis either.

Q. Was David Lykins sick when he was discharged from the emergency room?

A. Well, his vital signs were stable. His pulse had come down. His pain and his nausea had been treated, and based on the clinical evaluation, it didn’t appear that he had anything life-threatening.

So I would say in that sense, he was appropriate for discharge. Was he still having some symptoms? It sounds like he still was, but he was appropriate for discharge.

Q. Necrotizing fasciitis, streptococcus A, that’s an emerging disease, isn’t it?

A. We consider it an emerging infection. Whether it is more common now than five years ago, no one is quite sure.

Q. Do you keep up on the outbreaks in the areas of the United States where it’s occurred?

A. I read the public health reports, so only in that sense.

Q. Are you aware that southern Ohio had an outbreak during this time?

A. Well, I wasn’t until being involved in this case.

Q. But you became aware of that, didn’t you?

A. I’ve seen it referenced in your questions in depositions, yes.

Q. Let me ask you, in your hospital, are you the chairman of your infectious disease department?

A. No.

Q. Okay. You are actively involved in it, aren’t you?

A. Yes.

Q. Now, do you have a process or means of communicating to others in the emergency room about emerging diseases or biological diseases or these strange things?

A. We do. It’s not the type of infections that hospital infection control usually reports to the staff.

Q. Is there an obligation in your hospital for the infectious control department to report to the staff?

A. Yes.

Q. How many cases of necrotizing fasciitis have you treated?

A. I’ve lost count, but probably well over fifty, seventy-five, something like that.

Q. Do you usually treat them there in Los Angeles or do you go to other areas of the country?

Q. Just in Los Angeles alone?

A. Yes.

MR BRANNON: I have no further questions. Thank you.

THE COURT: Mr. Fruend, redirect.

MR FRUEND: Thank you so much, doctor I have no further questions.

THE COURT: Thank you. You can step down. Watch your step.

THE WITNESS: Thank you. Thank you.

THE COURT: All right. Let’s take

our lunch break. Let’s see you back at let’s see here 1:30. 1:30 we’re going to have you back. Don’t discuss the case, form or express any opinion, and we’ll see you back then. Thanks.

(Lunch recess taken.)