Philipp Kupfer, D.M.D. - 7/16/2013 IN THE CIRCUIT COURT OF ...media.oregonlive.com/steve-duin-impact/other/Kupfer.pdfPortland, OR 97205 12 971-266-8877 [email protected] 13 For

Philipp Kupfer, D.M.D. - 7/16/2013

(503) 502-5504REGER REPORTING

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

PRISCILLA SCHMIDT, ) ) Plaintiff, ) ) vs. ) Case No. ) 1302-02500 )OREGON HEALTH AND SCIENCES )UNIVERSITY, a public corporation, )and PHILIPP KUPFER, D.M.D., )JEREMIAH JOHNSON, D.D.S., M.D., and)ROBERT W. T. MYALL, B.D.S., FDSRCS,)FRCD(C), M.D.,, ) ) Defendants )

VIDEOTAPED DEPOSITION OF PHILIPP KUPFER, D.M.D.

Taken in Behalf of the Plaintiff

Portland, Oregon

July 16th, 2013

Reported by:

Robin Reger, RPR, CSR



2 (Pages 2 to 5)

Page 2

1 BE IT REMEMBERED That, pursuant to OregonRules of Civil Procedure, the videotaped deposition

2 of PHILIPP KUPFER, D.M.D. was taken in behalf of thePlaintiff, before Robin Reger, Registered

3 Professional Reporter, on Tuesday, the 16th day ofJuly, 2013, commencing at the hour of 9:30 a.m. in

4 the law offices of Hart Wagner, LLP, 1000 SWBroadway, Twentieth Floor, Portland, Oregon.

5 --o0o--

67 APPEARANCES:8 For the Plaintiff:

James D. Huegli9 Todd J. Huegli

Rhett Fraser10 HUEGLI FRASER LAW

1001 SW Fifth Avenue11 Suite 1415

Portland, OR 9720512 971-266-8877

[email protected]

For Defendants OHSU, Dr. Kupfer and Dr. Johnson:14 Michael J. Wiswall

HART WAGNER, LLP15 Twentieth Floor

1000 SW Broadway16 Portland, OR 97205

503-222-449917 [email protected] For Defendant Dr. Myall:

Paul Silver19 LINDSAY HART, LLP

1300 SW Fifth Avenue20 Suite 3400

Portland, OR 9720121 503-226-7677

[email protected]

Also Present: Lisa Ross, Paralegal23 Dr. Myall

Ryan Jacke, River City Media24 503-224-332125

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1 - I N D E X -23 EXAMINATION BY PAGE4 Mr. Huegli 456 --O0O--78 EXHIBITS9 EXHIBIT

NUMBER DESCRIPTION PAGE1011 1 Copy of three films on one page 5712 2 Page with copy of front and 58

back of disk containing original13 films141516171819202122232425

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1 PHILIPP KUPFER, D.M.D.2 after having been first duly sworn on oath by the3 Certified Shorthand Reporter, was examined and4 testified as follows:56 EXAMINATION78 BY MR. HUEGLI:9 Q Could you please state your full name.

10 A My name is Philipp Kupfer.11 Q And you're a dentist?12 A Correct.13 Q And I understand you're a student at OHSU14 in the maxillofacial department?15 A Resident, yes.16 Q Is there a difference between a resident17 and a student?18 A Yes.19 Q Aren't residents doctors who are in20 training to do something more advanced?21 A That's correct.22 Q So, are you in training at OHSU to become23 a maxillofacial surgeon?24 A That's correct.25 Q Okay. And you are not now one; you

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1 haven't graduated?2 A You mean, are you asking if I am an oral3 surgeon?4 Q Yes.5 A No, I'm not.6 Q And were you an oral surgeon in 2010?7 A No.8 Q And in 2010, how long had you been in9 training to become an oral surgeon when you first

10 met Priscilla Schmidt?11 A How long I've been at OHSU or total12 training?13 Q Training in the maxillofacial department.14 A Eight months.15 Q Eight months. Okay. Have you ever had16 your deposition taken before?17 A No.18 Q A deposition is a sworn statement in19 front of a court reporter. It's being videotaped.20 It will be typed up into a book called a transcript,21 and the transcript will follow us throughout this22 trial. So what I'd like to do initially here is23 just provide you some ground rules, if I may.24 A Yes.25 Q Your questions must be answered out loud,



3 (Pages 6 to 9)

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1 yes or no. The court report cannot take down a2 shake of the head or an uh-huh or an huh-uh. If you3 don't understand a question, I'd ask you not to4 answer that question and simply ask that I clarify.5 Okay?6 A Yes.7 Q Okay. If you answer the question, I'm8 going to believe that you fully understood the9 question. All right?

10 A Okay.11 Q So if your answer is different at the12 time of trial than it is here today, I can call that13 to the attention of the jury.14 A Okay.15 Q For example, at trial if you say, "Gosh,16 I didn't understand your question or I would have17 answered it differently," I'm going to read this18 portion of the transcript back to the jury.19 A Okay.20 Q So please take your time and think about21 your answers carefully.22 A Yes.23 Q All right. Could you please tell me,24 before this deposition today, is there anything that25 you reviewed in order to get ready?

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1 A I reviewed the chart records.2 Q Okay. Anything else?3 A That was it.4 Q Did you read the deposition of Dr.5 Johnson?6 A I did read the deposition of Dr. Johnson.7 Q Anything else?8 A No.9 MR. WISWALL: Well, wait. Anything else

10 to prepare for the deposition?11 MR. HUEGLI: Correct.12 THE WITNESS: No.13 BY MR. HUEGLI:14 Q Did you look at the X-rays?15 A To prepare for the deposition?16 Q Yes.17 A No.18 Q When did you last look at the X-rays?19 A The last time I looked at X-rays must20 have been probably a month after the procedure.21 Q Okay. Have you ever looked at the CT22 scan done by Dr. Jay Mamlquist?23 A No.24 Q Have never seen that?25 A No.

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1 Q It's a cone beam CT. Okay?2 A I've never seen it.3 Q Do you know what a cone beam CT is?4 A Yes.5 Q Did you receive any training in dental6 school about the use a cone beam CT?7 A Yes.8 Q Is there anything else you reviewed9 besides the transcript of Dr. Johnson and the

10 medical chart?11 A No. For the deposition?12 Q Yes.13 A No.14 Q Let's go into your training, if I could.15 Where did you go to undergraduate school?16 A Concordia University in Portland.17 Q Okay. And how did you do in school?18 A Well.19 Q What was your grade point average?20 A I believe it was 3.5 or six.21 Q Okay. And is Concordia a university?22 A Yes.23 Q And after you left Concordia, where did24 you go?25 A I worked at a research lab at OHSU for

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1 two years.2 Q What did you graduate in? What was your3 major at Concordia?4 A A bachelor, a BA, bachelor in arts and5 sciences.6 Q In arts?7 A It's arts and sciences. It's one8 department there.9 Q All right. What did you do at work for

10 the two years after you got out? What was your job?11 A My job was research -- the title was12 Research Assistant 2, and it involved animal13 research in the field of hypertension and nutrition.14 Q Okay. And did you have any special15 skill, training or experience from college to16 qualify you for that job?17 A Yes, I did. I received a scholarship to18 do a research project at OHSU the year prior to my19 graduation that qualified me.20 Q And after that two-year job in research,21 what did you then do?22 A I went to dental school -- applied to23 dental school.24 Q At OHSU?25 A Where did I go to dental school or where



4 (Pages 10 to 13)

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1 did I apply to dental school?2 Q Where did you go?3 A I went to Harvard Dental School in4 Boston.5 Q And how did you do at Harvard Dental6 School; did you graduate?7 A Yes.8 Q And what was your place in the class? I9 assume you had class standings?

10 A We don't have class standings.11 Q Did you have GPAs?12 A There's no GPAs.13 Q Is it pass/fail?14 A It's pass/fail, correct.15 Q All right. And after you graduated from16 dental school, did you go to OHSU next?17 A Yes.18 Q All right. When you started at OHSU19 dental school, who was your direct -- excuse me --20 at the maxillofacial school, who was your direct21 supervisor?22 A The direct supervisor would be the23 attendings at OHSU, the attending team at OHSU.24 Q Who was the attending supervisor when you25 got there?

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1 A Well, it depended on what we were doing2 at the time. So the program director at the time3 was Leon Assael, so he would have been the first4 contact person; and then whoever you're assigned to5 or whoever you're working with, that attending would6 be your direct supervisor.7 Q Okay. I'd like you to help me understand8 how the department works, and I'm only talking about9 the period of time that you met Ms. Schmidt in 2012.

10 Okay?11 During an average month, just walk me12 through an average day. You would come to the13 school. You're in training to become a14 maxillofacial doctor. You arrive at what time in15 the morning?16 A I would usually arrive somewhere between17 5:00 or 6:00 in the morning.18 Q All right. And how do you know what to19 do that day?20 A The beginning of each week the intern,21 the first year resident, would make a schedule with22 all -- every clinic and every operating room has a23 schedule. The intern combines the schedules into24 one schedule; and then the senior resident or chief25 resident assigns each resident to the schedule, and

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1 that's how they are assigned; and then the schedule2 usually gets reviewed by an attending.3 Q Okay. And does the first-year resident4 prepare treatment plans for all the people on the5 schedule?6 A Treatment -- there's no people on the7 schedule except for the OR patients. Maybe I'm not8 understanding the question correctly.9 Q Well, do you participate in planning the

10 treatment of the people that are on the schedule,11 the patients that are on the schedule?12 A That would usually happen -- that process13 happens before they go on to the schedule.14 Q Okay. When you were at dental school,15 did you learn what an ankylosed tooth was?16 A Yes.17 Q What was your understanding of what an18 ankylosed tooth is?19 A An ankylosed tooth is a tooth that's20 fused with the surrounding bone.21 Q In layman's terms, has the bottom portion22 of the tooth actually become the bone?23 A The bottom portion of the tooth?24 Q Yes.25 A Can you describe for me what you mean by

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1 "the bottom portion"?2 Q Sure. Some of the tooth is not out, in3 the bone, and some of the tooth is in the bone.4 Like in my teeth, I've got some that's in the bone5 that's below the gumline, and I've got teeth that6 are above the gumline that's not in the bone.7 A No, that's not my understanding of an8 ankylosed tooth.9 Q What's your understanding?

10 A My understanding of an ankylosed tooth is11 if a tooth that's inside the bone is directly fused12 with the bone. A normal tooth, such as your own13 tooth, has the surrounding periodontium that holds14 it into place. So that's not ankylosed.15 Q What do you mean by "fused with the16 bone"?17 A It means that interface in between the18 bone and the tooth, or the tooth root has become19 obliterated or replaced by some other substance --20 Q All right.21 A -- such as bone.22 Q When you were in dental school, did you23 learn the difference between baby teeth and adult24 teeth?25 A Yes.



5 (Pages 14 to 17)

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1 Q And what is a tooth K?2 A Tooth K is a primary molar.3 Q Would that be called a baby tooth?4 A Yes.5 Q And I think laymen use the term baby6 teeth for children's teeth, and adult teeth for7 second teeth that come out of your mouth; is that a8 fair statement?9 A Yeah.

10 Q Okay. And, by the way, in this11 deposition if you don't understand these questions,12 or I don't phrase them artfully as a dentist would,13 because I'm a layman -- and this videotape will be14 played to a jury of laymen, much like myself, who15 don't have any medical training. Okay?16 A Okay.17 Q So when my children lose teeth, I say18 they have lost a baby tooth as opposed to a primary19 tooth.20 A That's fair.21 Q If they lose an adult tooth, I say they22 lost a permanent tooth as opposed to a secondary23 tooth or something like that.24 A Okay.25 Q So we'll use those terms interchangeably,

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1 if you are comfortable with that.2 A That's okay.3 Q All right. What is an impacted tooth?4 A An impacted tooth is a tooth that hasn't5 erupted.6 Q All right. And is that different from an7 ankylosed tooth?8 A Yes.9 Q Can an impacted tooth also be ankylosed?

10 A Yes.11 Q All right. When you have a primary12 tooth -- such as a tooth K -- that has erupted, and13 then for some reason goes back and gets covered in14 tissue, what is that called?15 A That's called -- sorry. Can you explain16 to me what you mean by "has erupted and then gone17 back"?18 Q It gets covered with tissue.19 A Secondarily?20 Q Yes. You have got a baby tooth, like a21 tooth K, that comes out, and you can see the top of22 it --23 A Yeah.24 Q -- and a dentist can see it. For25 example, he might put a filling in it. And as the

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1 child grows older, the adult teeth come out --2 A Yeah.3 Q -- the baby tooth stays inside --4 A Yeah.5 Q -- stays inside the jaw, and actually6 gets covered by tissue.7 A So it's impacted. It's impacted unless8 you find it to be ankylosed. The two are not9 exclusive of one another.

10 Q Can a baby tooth like that be impacted11 and ankylosed at the same time?12 A Yes.13 Q All right. When you were at dental14 school, if you can give me an estimate -- I realize15 the number won't be exactly accurate -- the number16 of ankylosed tooth Ks that you pulled in an adult.17 A I don't think I can give you an estimate18 on that. It would have been a very small number.19 Q Less than 10?20 A Probably.21 Q Maybe none at all?22 A Possibly.23 Q Okay. Is that an unusual thing to happen24 then?25 A In dental school?

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1 Q Yeah.2 A It's not unusual, but it would be unusual3 for a dental student to have seen that.4 Q Okay. And is there a reasonable chance5 that you might not have seen that in dental school,6 an ankylosed tooth baby K -- an ankylosed tooth K in7 an adult that needed to be pulled out?8 A That specific tooth K?9 Q Yes.

10 A Yes, it would.11 Q And are all teeth, when you pull all12 teeth, do they all have different risks to the13 patient, based upon their location?14 A Different teeth have different risks,15 yes.16 Q For example, if I pull a back molar,17 would you agree there's very little risk to the18 mental nerve?19 A I would agree that the risk is different20 than if you pull a different tooth.21 Q Is there a significant degree of risk if22 you pull a back molar in an adult, a wisdom tooth --23 A Yeah.24 Q -- for injury to the mental nerve coming25 out of the mental foramen in the front of the face?



6 (Pages 18 to 21)

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1 A It's not -- can you define "significant"2 for me?3 Q Yes. Have you ever heard, in all the4 medical literature that you have studied, that if5 you pull a wisdom tooth in an adult, there is a risk6 of injury to the mental nerve coming out of the7 mental foramen in the front of the mouth?8 A It would be unlikely, but I can certainly9 think of possibilities where that could happen.

10 Q Please explain it. What possibility?11 How could that happen?12 A Well, any time you have an instrument --13 sharp instruments or metal instruments that do work14 in somebody's mouth, there is a possibility for15 damage to the surrounding tissue. Since we are16 working within the oral cavity it's conceivable that17 that would be possible.18 Q Do you believe that if a dentist is19 pulling a wisdom tooth, that if he injures the20 mental nerve -- and he's pulling a back wisdom21 tooth -- if he injures a mental nerve during the22 course of that procedure that that is an acceptable23 risk of pulling a wisdom tooth?24 MR. WISWALL: Object to the form.25 MR. SILVER: Join.

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1 MR. WISWALL: It's sounds like a pure2 expert question.3 MR. HUEGLI: No, it's a question as to4 what his skill and training is as to what he5 knows the risks of procedures are.6 MR. WISWALL: I disagree with that. It's7 also a very incomplete hypothetical.8 MR. HUEGLI: In he doesn't understand it,9 he can certainly tell me that it's not

10 complete.11 MR. WISWALL: Well, I think those are two12 different issues, whether he understands it or13 not and whether it's a complete or incomplete14 hypothetical.15 BY MR. HUEGLI:16 Q Do you understand my question?17 A Can you repeat the question?18 Q Certainly. Are you aware, in all of your19 training -- I'll ask it this way -- in all of the20 training you've had, either at dental school or at21 OHSU, of a mental nerve ever having been injured as22 a result of pulling a wisdom tooth?23 A As a -- sorry, that question was24 different than the question you asked me before.25 Q I understand that.

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1 A So you want me to answer this one or the2 one before?3 Q This one.4 A I'm not aware of a case.5 Q Are you aware of any literature -- and I6 assume you have studied medical literature in the7 six years that you've been studying dentistry,8 correct?9 A Yes.

10 Q Are you aware of any literature or any11 reported case that you're aware of where a mental12 nerve has been injured as a result of pulling a13 wisdom tooth?14 A I've heard of -- are you talking about15 just working in that area or the entirety of the16 procedure?17 Q I'm talking about if a dentist pulls --18 or a oral maxillofacial surgeon pulls a wisdom19 tooth, are you aware of any reported case in the20 literature where the dentist who was pulling the21 wisdom tooth at the same time injured the mental22 nerve as it comes out of the mental foramen?23 A Reported literature, no, I'm not aware.24 Q When you were in dental school, did you25 have an opportunity to physically observe the mental

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1 nerve in an actual patient?2 A Yes.3 Q On how many occasions?4 A At least four that I can think of off the5 top of my head.6 Q And while you were at OHSU, prior to7 meeting Priscilla Schmidt, on how many occasions did8 you personally physically examine an exposed mental9 nerve in a patient at OHSU?

10 A I would not have a specific number, but11 it would be much more than that.12 Q Do you remember the very first time that13 you saw a mental nerve at OHSU?14 A No.15 Q Do you remember the circumstances?16 A So you are asking me if I remember the17 very first time, and do I remember the circumstances18 of the very first time?19 Q Do you remember any circumstance where20 you examined -- other than Priscilla Schmidt --21 where you either physically examined or saw a mental22 nerve at OHSU?23 A Yes.24 Q Can you tell me about that.25 A So -- do you want one specific one in a



7 (Pages 22 to 25)

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1 specific time range?2 Q Sure. And just pick one out, just pick3 any one, other than Priscilla Schmidt.4 A Yeah. So during facial trauma, when a5 patient goes to the OR for a jaw fracture, we expose6 the mental nerve frequently.7 Q And what does the mental nerve look like?8 A The mental nerve, as it comes out of the9 foramen, which is the small opening, it looks like

10 a -- sorry -- I would like to say that it looks like11 a nerve, but that's probably not going to be very12 helpful.13 Q Not really because I'm a layman, so I14 really don't know what a nerve looks like. Maybe15 you can compare it to something that we might16 experience in our regular life.17 A So it's probably about the size of a18 spaghetti that is covered with a very thin, delicate19 vasculature.20 Q Does it come out in one piece or does it21 have branches?22 A It does have branches, but -- what do you23 mean by "come out"?24 Q When it exits the mental foramen, does it25 have branches or does it -- just as you said, a

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1 piece of spaghetti, is that the size of it, a piece2 of spaghetti?3 A So the way the nerve exits the foramen is4 in a bundle, and then within that bundle there's5 certain branches, yes.6 Q And how thick is the bundle itself?7 A The bundle itself is probably about -- it8 varies from patient to patient, but around the size9 of a piece of spaghetti.

10 Q All right. And in the mental foramen is11 a bone, as I understand it?12 A The mental foramen -- sorry, what was the13 question?14 Q It exits the mental foramen. Would you15 tell us what the mental foramen is.16 A The mental foramen is the hole in the17 bone.18 Q And what is the bone called?19 A The bone is called the mandible.20 Q And what's on the other side of the bone21 when the nerve comes out? What's on the other side?22 In other words, where does the nerve come from?23 A From the inferior alveolar nerve canal.24 Q So is the mental nerve a branch of the25 inferior alveolar nerve?

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1 A Yes.2 Q And how big is the inferior alveolar3 nerve?4 A It depends on where within the jaw you5 look at it. It's smaller towards the front, bigger6 towards the back.7 Q Is there any portion of the mental nerve8 that is behind the mandible as opposed to the front9 part of the mandible?

10 A What do you mean by in front and behind?11 Q Well, there's a hole through the12 mandible?13 A Yes.14 Q And one side of the hole is the lingual15 side; is that correct?16 A Yes.17 Q One side is the buccal side?18 A Yes.19 Q And the buccal side, in laymen's terms,20 is the outside of the jaw?21 A Okay, so that's --22 Q And the lingual side is the inside of the23 jaw, the tongue side?24 A Yes.25 Q Is there any portion of the mental nerve

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1 that is on the tongue side of the mandible?2 A You mean inside the mental nerve --3 Q No.4 A -- is that your question?5 Q Is there any portion of the mental nerve6 on the other side of the hole --7 A On the other side of the hole --8 Q On the outside of the hole, the mental9 nerve comes out of a hole --

10 A Yeah.11 Q -- is there any portion of the mental12 nerve that's on the other side of the hole?13 A The nerve is defined as the mental nerve14 once it exits the foramen.15 Q So, when it's in the foramen or on the16 other side of the foramen?17 A The outside of the foramen.18 Q When it's on the inside --19 A It's called the inferior alveolar nerve.20 Q -- it's called the inferior alveolar21 nerve, the IAN?22 A Yes.23 Q Is that the correct letters?24 A Yes.25 Q What special training did you have before



8 (Pages 26 to 29)

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1 you came to OHSU? And I'm talking about very2 specialized training, specifically on how to remove3 an ankylosed tooth K as opposed to other teeth.4 A As opposed to other teeth or other5 students in my program?6 Q I'll repeat the question.7 A Yes.8 Q When you were at dental school, did you9 have any specialized courses in how to perform a

10 complex surgical extraction of an ankylosed tooth K11 in an adult?12 MR. WISWALL: Object to the form.13 MR. SILVER: Object to form.14 THE WITNESS: So the specific tooth K?15 BY MR. HUEGLI:16 Q Yes.17 A I do not recall. I don't think so.18 Q When you got to OHSU, what specific19 training did you have on removing an ankylosed tooth20 K in an adult?21 MR. WISWALL: And just to clarify, you22 are ignoring any other training about other23 ankylosed teeth or extractions in general?24 MR. HUEGLI: Yes, I am.25 THE WITNESS: Okay. So that specific

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1 tooth K -- we've learned about other ankylosed2 teeth, but I don't recall being trained3 specifically on an ankylosed tooth K.4 BY MR. HUEGLI:5 Q Okay. Does the mental nerve come out of6 the top part of a person's jaw, the top part of the7 mandible, or is it limited to the lower jaw?8 A Oh, you are asking upper versus lower9 jaw?

10 Q Yes.11 A Yes, lower jaw.12 Q So when you pull a wisdom tooth in the13 top right corner of a person's mouth, do you14 believe, from your skill, training and experience,15 that the mental nerve of the patient should be at16 risk for injury if the dentist is being careful?17 MR. WISWALL: Object to the form.18 THE WITNESS: That would be very19 unlikely.20 BY MR. HUEGLI:21 Q What?22 A It would be very unlikely.23 Q Okay. Because it's not in the same area24 of the mouth; is that my understanding --25 A Yes.

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1 Q Okay.2 A Yes.3 Q So would you -- is it your understanding4 that the closer you are to operating on a tooth that5 is in close proximity to the mental nerve, the more6 risk there might be to the mental nerve to being7 injured?8 A Yes.9 Q All right. Are you aware, in all of your

10 training at Harvard, and all of your training even11 up until today at OHSU, other than Priscilla12 Schmidt, of another patient who had a permanent,13 irreversible injury to the mental nerve as a result14 of a tooth being pulled by a dentist or an oral15 surgeon at OHSU?16 MR. WISWALL: Object to the form.17 THE WITNESS: Is the question if I've18 seen a case where the mental nerve was damaged19 or had damage from a procedure that was done at20 our institution or outside?21 BY MR. HUEGLI:22 Q I'll state the question again.23 A Okay.24 Q I'm not talking about trauma from an auto25 accident, or a gunshot, or somebody being hit by a

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1 machete in front of their face, or a child falling2 off a skateboard and fracturing their jaw. I'm3 talking about a patient who came into OHSU who4 needed to have a tooth pulled --5 A Yes.6 Q -- any tooth, any tooth at all, elective7 procedure -- are you with me?8 A Yeah.9 Q -- and the dentist or the student at

10 OHSU, either one, caused permanent, irreversible11 injury to the mental nerve? That's the question.12 Other than Priscilla Schmidt, are you aware of any13 other instance where that ever occurred while you've14 been at OHSU?15 MR. WISWALL: Object to the form.16 THE WITNESS: I don't recall a specific17 instance.18 BY MR. HUEGLI:19 Q And, Doctor, you read Dr. Johnson's20 deposition?21 A Yes.22 Q And do you recall him saying that in the23 six years he's been there he's never heard of one24 either?25 MR. WISWALL: Object to the form.



9 (Pages 30 to 33)

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1 BY MR. HUEGLI:2 Q Do you recall that?3 A A case that has resulted in permanent4 nerve damage caused by an operation done at OHSU?5 Q Yes.6 A Correct.7 Q When you were at dental school, did you8 receive training on when to take films and which9 films to take before a surgery?

10 A Yes.11 Q And did you have training in dental12 school doing surgery?13 A Yes.14 Q And is the training that you received at15 OHSU the same or different than what you received at16 dental school?17 A I don't understand the question.18 Q When you were at dental school you19 received training when to take films?20 A Yes.21 Q And you received training at OHSU on when22 to take films?23 A Yes.24 Q Is the training the same?25 A The training is different.

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1 Q Tell me what the difference is on2 training at OHSU.3 A The difference in training at OHSU is4 that it's more clinical based.5 Q And explain what that means in layman's6 terms.7 A It means that there are specific cases on8 which you learn throughout your education, and you9 learn about how to read advanced imaging, and you

10 get exposure to multiple types of imaging throughout11 your training.12 Q For example, did you learn at dental13 school when and how to do a cone beam CTA -- CT?14 A The basics.15 Q And have you learned more advanced16 training at OHSU?17 A Yes.18 Q All right. Did you receive training,19 either at dental school or as a student at OHSU,20 what proper films would be necessary before you21 operated on a patient who had an ankylosed tooth K22 where the mental nerve was at risk of injury?23 A I have received training on what imaging24 is necessary to perform a -- to perform tooth25 extractions of ankylosed teeth.

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1 Q Let's talk about tooth extractions of an2 ankylosed tooth K. Okay? I'd like to limit the3 question to that. Did you receive any special4 training on what images were necessary to be taken5 of a patient who had an ankylosed tooth K who was an6 adult?7 MR. WISWALL: Object to the form.8 THE WITNESS: I did receive training on9 how to -- what imaging is necessary to remove

10 any ankylosed primary tooth, which would11 include tooth number K.12 BY MR. HUEGLI:13 Q Okay. What images did you believe were14 necessary in order to perform a safe surgery in15 March of -- excuse me -- February of 2012, when an16 ankylosed tooth K in an adult was going to be17 exposed or operated on by you?18 MR. WISWALL: Object to the form.19 THE WITNESS: An adequate two-dimensional20 plain film.21 BY MR. HUEGLI:22 Q Did you believe that one adequate23 two-dimensional plain film was sufficient?24 A Yes.25 Q Did anybody at OHSU train you that a pano

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1 was necessary?2 A I'm aware that a pano would have been an3 option.4 Q Would you tell us what a pano is?5 A A panoramic radiograph you are referring6 to?7 Q Yes.8 A It's a two-dimensional X-ray of the9 entire upper and lower jaw.

10 Q And were you trained at OHSU -- and you11 can answer this either way -- that when you are12 doing a surgery on an adult like Priscilla Schmidt,13 before you operate on her, that a pano was not14 necessary but merely an option?15 MR. WISWALL: Object to the form.16 THE WITNESS: That's my understanding.17 BY MR. HUEGLI:18 Q And who trained on that, which trainer,19 which professor?20 A That is consistent throughout all the21 attendings at OHSU.22 Q Okay. And when you say one film is23 sufficient, one two-dimensional film, one24 two-dimensional film of what part of the body?25 A You are basically referring specifically



10 (Pages 34 to 37)

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1 to this case?2 Q Yes.3 A Yes. So the entirety of the tooth that4 is to be removed.5 Q And would you please describe to me what6 you mean by "the entirety of the tooth."7 A The crown and any possible roots --8 Q Okay.9 A -- of that tooth.

10 Q Did you receive any training at OHSU11 regarding the extent of the exposure necessary of an12 ankylosed tooth K before you could operate safely?13 A The extent of the radiation exposure or14 the extent of the surgical exposure?15 Q No, the extent of the view. In other16 words, were you trained at OHSU that before you17 could operate safely on a patient that you only18 needed to see the top of the tooth?19 A Sorry. I was trained to -- in order to20 do a safe operation, you need to see the entirety of21 the tooth to be removed.22 Q And what do you mean by "the entirety of23 the tooth"?24 A The crown as well as the roots, if they25 are present.

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1 Q And when I think of a tooth, I think of a2 tooth as having a flat part on top, and then having3 a tip that goes down into the jaw.4 A Okay.5 Q And I think of a tooth is that tip being6 where the roots go through. Is that a fair layman's7 statement?8 A The tip where the roots go through --9 Q In other words, the bottom of the tooth

10 is pointed.11 A Yeah, the bottom of the tooth can have12 pointed projections which are called the roots.13 Q And the roots come out of the bottom of14 the tooth as opposed to the top of the tooth?15 A That's a -- yes, on the inferior portion,16 which if it's on the top -- if it's a top tooth, it17 comes off the top.18 Q Well, don't teeth have roots that come19 out the bottom? Isn't that why we call them roots?20 A Yes, but you turn the tooth upside down.21 Q Well, of course. But I'm talking about22 when people -- normal people have teeth, and they23 have teeth that have roots, and the roots go into24 the jaw.25 A Yes.

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1 Q That's correct, isn't it?2 A Yes, uh-huh.3 Q All right. And the roots come out of the4 bottom of the tooth, and they go into the bony area;5 is that a fair statement?6 MR. WISWALL: I think the confusion is7 you are talking about just the teeth on the8 bottom row because he's talking about the9 top --

10 THE WITNESS: The teeth on the bottom.11 BY MR. HUEGLI:12 Q Yes, teeth on the bottom.13 A Okay. We're limiting the discussion to14 teeth on the bottom, yes. Roots usually come out of15 the bottom part of the crown and go into the bone.16 Q Okay. And in order to safely operate,17 you have indicated to me you need to see the top of18 the tooth all the way to the bottom of the tooth?19 A Correct.20 Q And what did you learn as to how far21 below -- by the way, the bottom of the tooth is22 called the apex, isn't it?23 A Uh-huh, yes.24 Q And I'm going to call that the pointed25 part. Are you comfortable with that?

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1 A Okay.2 Q And the top of the tooth is called the3 crown?4 A Yes.5 Q And I'm going to call that the flat part.6 Are you comfortable with that?7 A Yes.8 Q What did you learn from your training,9 and even training from Dr. Myall -- and, by the way,

10 he was one of your teachers, wasn't he?11 A Yes.12 Q How far below the apex did you learn that13 the film had to be to expose the tooth? In other14 words, how much below the apex did you need to see15 in order to operate safely?16 A You need to see the apex of -- the entire17 apex of the tooth, that was the minimum.18 Q Did you learn you need to see two19 millimeters below the apex in order to have a safe20 exposure of that tooth?21 A No.22 Q When were you allowed, as a resident at23 OHSU, to be alone in the room and to operate on a24 patient in removing a tooth surgically all by25 yourself with no other supervision in the room?



11 (Pages 38 to 41)

Page 38

1 A Never.2 Q During your first eight months of surgery3 at OHSU, was there ever an occasion where you4 operated on a patient and you were in the room all5 by yourself, there might have been an assistant such6 as a nurse --7 A Uh-huh.8 Q -- in this first -- I'm talking about the9 first eight months --

10 A Yeah.11 Q -- and there was not another doctor, a12 supervising doctor in the room the entire time?13 A Yeah, there are instances where there was14 not a supervising doctor in the room the entire15 time.16 Q And how often did that happen at OHSU?17 A Almost -- often.18 Q Okay. And would that be true on19 procedures where you operated on a patient doing a20 procedure you had never done before?21 A For portions of the case, yes.22 Q Are there any videotapes at OHSU that you23 have seen or examined that were used to train you to24 pull an ankylosed tooth K in an adult?25 A No, not that I'm aware of.

Page 39

1 Q Were there any videotapes at OHSU, or2 books, textbooks, where you were taught how to3 provide informed consent to a patient?4 A Specific in the oral surgery department5 or as training at OHSU?6 Q Anywhere.7 A Yes.8 Q What videotapes or books did you use to9 learn how to give informed consent to a patient?

10 A Well, there's several -- there's a class11 series at the OHSU Medical School that we take, and12 then there's classes during dental school that we13 take about informed consent.14 Q And if I wanted to find out about that15 class series at OHSU --16 A Yes.17 Q -- how would I find that out?18 A It's called the PCM course. It stands19 for Primary Clinical Medicine, I believe.20 Q Okay.21 A It's part of the curriculum.22 Q Are there any videotapes or classes on23 how to do proper charting at OHSU?24 A Videotapes or classes was your question?25 Q Videotapes, classes, books. In other

Page 40

1 words, if I wanted to go to OHSU and find out, "how2 should I properly chart a file," if its being taught3 at OHSU, how would I find that?4 A There's an Epic training class, and then5 the specific chart notes are reviewed by the6 attendings, and we get feedback.7 Q And is the Epic training class a8 videotape?9 A You mean, am I watching a video or while

10 I'm there they are videotaping me?11 Q What is the Epic training class? How12 does that work?13 A It's a one to two day class with a person14 who is showing you how to work Epic and how to15 chart, and you sit in a computer room and you follow16 along with the different tasks.17 Q Okay. Are you aware of any textbooks18 that are used at OHSU that are recognized as19 authoritative for pulling teeth in oral surgery?20 MR. WISWALL: Object to the form.21 THE WITNESS: There are several textbooks22 that are regarded useful for the training of23 oral surgery residents that are available to24 us.25

Page 41

1 BY MR. HUEGLI:2 Q Can you name one or two?3 A There's the Peterson's.4 Q Peterson?5 A Peterson's Oral and Maxillofacial Surgery6 text. There is the Contemporary Oral Maxillofacial7 Surgery text.8 Q Who is the author of that?9 A The second one? Dr. Bell is one of them,

10 and then I don't recall the other author.11 Q Okay. And any others?12 A There's multiple other ones, but I can't13 think of the name right now.14 Q Do you rely upon these books in your15 practice?16 MR. WISWALL: Object to the form.17 THE WITNESS: Yes, I refer to them.18 BY MR. HUEGLI:19 Q Did you have any classroom sessions at20 OHSU for pulling ankylosed teeth on cadavers before21 you started on regular, live patients?22 A No.23 Q Did you have any classroom sessions at24 Harvard in pulling ankylosed teeth on cadavers as25 opposed to live patients?



12 (Pages 42 to 45)

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1 A No.2 Q Before Ms. Schmidt, how many complex3 surgical procedures had you done at OHSU?4 A Can you define "complex surgical5 procedures"?6 Q It's in your note. It's your words,7 right out of your chart. So, I don't know, you are8 going to have to define it for me.9 MR. WISWALL: Object to the form.

10 THE WITNESS: I'm going to limit it to11 complex surgical tooth extractions, and I could12 not think of a specific number, but it would13 have been numerous.14 BY MR. HUEGLI:15 Q How many is numerous?16 A I'd have to go back, but probably in the17 hundreds.18 Q At OHSU?19 A Yes.20 Q In eight months?21 A Yes.22 Q So how many complex surgical tooth23 extractions did you do a month at OHSU before you24 met Ms. Schmidt?25 A Per month -- I would say about 10 to 12

Page 43

1 per week.2 Q Okay. And those are surgical as opposed3 to simply pulling the tooth?4 A That's correct.5 Q All right. Did you keep records, either6 at the school or at home, of the surgical procedures7 that you had done at OHSU before you met Priscilla8 Schmidt?9 A Surgical tooth extractions?

10 Q Yes.11 A No.12 Q Is there any way I could find that out to13 verify what you have just told me?14 A Possibly, yes.15 Q How would I do that?16 A You would have to go through all the17 notes written by me over the last year to find out18 which one of those were surgical extractions.19 Q Do you keep copies of your notes on a20 computer log or paper copies at home, anywhere at21 all?22 A Of the tooth extractions, no.23 Q Do you have your -- do you keep a file,24 either by paper or on the computer, of all the25 surgeries that you have done at OHSU?

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1 A OR surgeries I do have a file.2 Q And as opposed to OR surgeries, do you3 have a file showing all the complex surgical tooth4 extractions that you have done at OHSU?5 A No.6 Q Would you please describe to me your7 understanding of how serious an injury would be to a8 patient to have a permanent, irreversible injury to9 a mental nerve?

10 MR. WISWALL: Object to the form. I'm11 not going to let him answer it like that. It's12 just too hypothetical. That's a pure expert13 question.14 BY MR. HUEGLI:15 Q Do you know what happens when a person16 has an injury to the mental nerve?17 A Yes. I have an understanding.18 Q Do you have an understanding what happens19 to their face and their ability to function if it's20 permanent?21 A I have an anatomical understanding of22 that concept.23 Q And had you ever seen one before Ms.24 Schmidt?25 A Yes.

Page 45

1 Q Had you ever seen one before Ms. Schmidt2 as a result of having a tooth pulled?3 MR. WISWALL: Object to the form.4 THE WITNESS: Yes.5 BY MR. HUEGLI:6 Q Where? When did you see that?7 A In Dr. Assael's clinic.8 Q Okay. And was that the result of having9 a tooth pulled at OHSU?

10 A No.11 Q Where was the tooth pulled?12 A I don't recall. In an outside practice.13 Q And what was your understanding as to14 what happens anatomically to a patient when they15 have a permanent, irreversible injury to the mental16 nerve?17 MR. WISWALL: Object to the form.18 THE WITNESS: It varies -- it varies from19 person to person, and it can have a range of20 presentations.21 BY MR. HUEGLI:22 Q Of what?23 A A range of presentations and a range of24 sensations to the patient.25 Q What would be the most severe



13 (Pages 46 to 49)

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1 presentation, from your understanding?2 A The most severe would be called3 dysesthesia, which would be altered sensation,4 including pain, tingling.5 Q And what was your understanding as to how6 dysesthesia would affect a patient's life?7 A Again, that depends on the extent of the8 damage and the patient itself.9 Q I'm talking about severe, at the far end

10 of the spectrum where it's very severe. What was11 your understanding as to how that would affect a12 patient?13 MR. WISWALL: Object to the form.14 THE WITNESS: My understanding is that it15 could cause constant irritation.16 BY MR. HUEGLI:17 Q What do you mean by "irritation"?18 A It means you could have altered sensation19 from tingling to pain, and intermittent to constant20 times, waxing and waning.21 Q Is that a serious injury, from your22 understanding?23 A Can you --24 MR. WISWALL: Object to be form.25 THE WITNESS: Can you define "serious"?

Page 47

1 BY MR. HUEGLI:2 Q You're a doctor. You are going to have3 to tell me if you know what that means. If you4 don't understand what the term "serious" means, I'll5 accept that.6 MR. WISWALL: Well, I'm going to object.7 At the beginning of the deposition you8 encouraged him to ask you clarify the question9 if he wanted to, and so now he's asked for

10 clarification.11 BY MR. HUEGLI:12 Q I'll rephrase the question. What is your13 definition of the term "serious"?14 A There's serious life threatening, there's15 seriously disabling.16 Q Let's use seriously disabling. Was it17 your understanding that a serious, permanent,18 irreversible injury to the mental nerve could be19 seriously disabling to an individual's ability to20 function with their mouth?21 A I understand that that's possible.22 Q How did you first become involved in the23 care of Priscilla Schmidt?24 A We received a call from the urgent care25 clinic at the dental school, asking if we would see

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1 Ms. Schmidt.2 Q Now, you said "we." Who is "we"?3 A Sorry, the call is placed to the front4 desk office --5 Q Okay.6 A -- and then usually, and in this case,7 got routed to a resident who answers the call, and8 then consults with an attending in the clinic if we9 can add on a patient.

10 Q Who answered the call?11 A Who answered the call initially?12 Q Who answered this call?13 A The call from the -- I answered the call.14 I responded to the call.15 Q And what did the person on the other line16 say?17 A They said, we have a patient in urgent18 care who possibly has an ankylosed tooth, and she is19 complaining of pain; and they were wondering if we20 could see her.21 Q Okay. And what did you say?22 A I said, "I will talk to my attending and23 check, and I will get back to you."24 Q And after you hung up the phone, what did25 you then do, and who did you talk to?

Page 49

1 A After I hung up the phone, I looked at2 the clinic schedule, and then I talked to Dr. Myall3 and asked him if we could add on a patient from the4 dental school.5 Q And what did you tell Dr. Myall?6 A I told Dr. Myall that there was a patient7 in the urgent care clinic who was complaining of8 pain, and that the urgent care clinic would like us9 to see her if possible.

10 Q Did you say anything else to Dr. Myall11 besides those words?12 A I probably mentioned that they took an13 X-ray.14 Q Anything further?15 A Not that I can recall.16 Q Did you tell him it was an ankylosed17 tooth?18 A I don't know if I told him at that point19 it was an ankylosed tooth.20 Q Would that have been important for Dr.21 Myall to know?22 MR. SILVER: Object to form.23 MR. WISWALL: Object to the form.24 BY MR. HUEGLI:25 Q Go ahead.



14 (Pages 50 to 53)

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1 A At that stage whether -- I was trying to2 find out whether or not we can see her. I don't3 think it would have been important.4 Q Okay. So you told him that there was a5 patient who had pain in a tooth, and that's all you6 basically indicated to him?7 MR. WISWALL: Object to the form.8 Misstates the testimony.9 THE WITNESS: I told him that there's a

10 patient at urgent care who is in pain, and I11 asked him whether or not there would be time in12 his schedule to see the patient.13 BY MR. HUEGLI:14 Q And he said?15 A Yes.16 Q What did you then do?17 A I called the urgent care clinic back.18 Q Okay. And she came up, as I understand19 it?20 A Yes.21 Q And I'm trying to walk through this day.22 What did you -- where did you then go and what did23 you do?24 A After I hung up the phone, I went and saw25 other patients.

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1 Q You were the first one to see Priscilla2 Schmidt in the clinic?3 A Well, no.4 Q Who was the first one to see her?5 A Well, it would have been first the front6 desk person, and then it would have been an7 assistant who would have taken vitals and checked8 for medications.9 Q What next happened?

10 A So she was in -- she was in an exam room,11 and I came in and introduced myself to Ms. Schmidt.12 Q What did you say?13 A I said, "Hello, my name is Dr. Kupfer,14 and I work with Dr. Myall."15 Q And what did you say to her, as to any16 inquiry as to what her problem might be?17 A Yeah, so I asked her about: What seems18 to be the problem? What brings you here?19 Q And what did she say?20 A She said, I have a tooth, a baby tooth21 that is -- that has not erupted in my jaw that has22 caused me problems.23 Q And do you know why she would have used24 the term "erupted"? Is that a term that most laymen25 use?

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1 A Yeah, often for when a patient is told2 that there's a tooth that is buried, they use the3 term "not erupted."4 Q Was she in the examining room where the5 actual surgery took place at this time?6 A At that time there was no surgery taking7 place. She was just in an exam room, so it's not8 the same room where the procedure was performed.9 Q Okay. And were you in a lab coat?

10 A No, probably not.11 Q Were you in a suit, business suit or12 dressed like you are today?13 A I was wearing scrubs.14 Q And when you told her you were Dr.15 Kupfer --16 A Yes.17 Q -- did you say, "I want you to18 understand, I am simply a resident student here at19 the maxillofacial department, and I'm in training"?20 MR. WISWALL: Object to the form.21 THE WITNESS: I did not tell her that,22 but I was wearing a name badge.23 BY MR. HUEGLI:24 Q And what did the name badge say?25 A The name badge says my first and last

Page 53

1 name, my degree, the department, and it says a2 resident.3 Q Why did you not say, "My name is Dr.4 Kupfer. I am in training here. I am not a5 maxillofacial surgeon. I've only been here eight6 months"?7 A There's no reason why I didn't say that.8 Q Do you think that might have been9 something that she might want to know?

10 MR. WISWALL: Object to the form.11 MR. SILVER: Object.12 THE WITNESS: Again, I introduced myself13 as working with an attending, and I was wearing14 a name badge at the time that identified me as15 a resident.16 BY MR. HUEGLI:17 Q Do you think it would have been important18 for your patient, Priscilla Schmidt, to know that19 you had only been at the maxillofacial department20 for eight months, and that you were in training?21 MR. WISWALL: Object to the form.22 THE WITNESS: That's a question you would23 have to ask her.24 BY MR. HUEGLI:25 Q If it was a member of your family going



15 (Pages 54 to 57)

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1 up there, do you think that's something you would2 want your family member to be told before somebody3 operated on them?4 MR. WISWALL: Object to form.5 MR. SILVER: Object to form.6 THE WITNESS: I don't think that makes a7 difference.8 BY MR. HUEGLI:9 Q Do you -- do you think that's-- well,

10 I'll rephrase the question.11 MR. WISWALL: Jim, now that we're going12 into the area of his care on that day, why13 don't we take a short break.14 MR. HUEGLI: That's fine. That's exactly15 where we're going to go, so let's take a break.16 (A brief recess was taken.)17 BY MR. HUEGLI:18 Q Before we get going again, Dr. Kupfer, I19 wanted to go back over a question I had before20 because I'm not sure I wrote it down correctly.21 This question involves adequate films, X-rays of a22 patient's mouth before an ankylosed baby tooth K is23 removed, pulled or operated on in an adult. Okay?24 That's where I'm going to ask you a question.25 A Okay.

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1 Q Did you tell me that all of the2 attendings, such as Dr. Myall, at OHSU taught you3 that a single two-plain film is adequate before you4 perform that operation safely?5 MR. WISWALL: Object to the form.6 MR. SILVER: Join.7 THE WITNESS: They taught me that that's8 the minimal amount of imaging that is9 necessary.

10 BY MR. HUEGLI:11 Q For that surgery, ankylosed tooth K in an12 adult, and where you are going to operate and do a13 complex surgical extraction, Dr. Myall taught you14 that that's an adequate amount of imaging?15 MR. WISWALL: Object to the form.16 MR. SILVER: Join.17 THE WITNESS: In general, they taught me18 that.19 BY MR. HUEGLI:20 Q I'm not talking about in general. That's21 why I was concerned about your answer.22 A Okay.23 Q Specifically, when you are operating on24 an ankylosed tooth K in an adult that you25 potentially might be removing that has serious

Page 56

1 exposure to the mental nerve, what did Dr. Myall at2 OHSU teach you regarding imaging, which I call3 X-rays, before you can safely do the surgery?4 MR. WISWALL: Object to the form.5 BY MR. HUEGLI:6 Q Go ahead.7 A Again, prior to me seeing Ms. Schmidt?8 Q Yes.9 A It was not specifically discussed.

10 Q In the entire eight months you were11 there, nobody at OHSU taught you what necessary12 imaging was before you did a surgery like this on13 Ms. Schmidt?14 MR. WISWALL: Object to the form.15 BY MR. HUEGLI:16 Q Is that what you are telling me?17 A That's not what I was saying.18 Q What are you telling me?19 A I'm saying that I have been trained and20 told that two-dimensional imaging is the minimum21 necessary in order for any tooth to be removed,22 including ankylosed primary teeth.23 Q In adults?24 A In adults and children.25 Q And based upon your skill, training and

Page 57

1 experience, are you comfortable that doing just the2 minimum is safe for a patient?3 MR. WISWALL: Object to the form.4 MR. SILVER: Object to the form.5 BY MR. HUEGLI:6 Q Go ahead.7 A It depends on what the X-ray -- or the8 film shows.9 Q Okay. The quality of the film?

10 A The quality of the film, the anatomical11 position of the structures that are exposed.12 Q Okay. In Ms. Schmidt's case I'd like13 you -- did she bring films with her?14 A I believe she had some films with her.15 Q And do you remember how many?16 A I don't recall how many.17 MR. HUEGLI: Let's tee up the films, if18 we could. Let's go off the record for a19 moment.20 (Off the record.)21 (Exhibit No. 1 was marked.)22 BY MR. HUEGLI:23 Q Dr. Kupfer, we've loaded on a computer24 here some films that your lawyer sent to us on what25 we call discovery. We can sends letters to the



16 (Pages 58 to 61)

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1 other attorneys, and they can send us back documents2 we request. And we got from OHSU two sets of films.3 One that was taken at the dental clinic, and the4 other is a series of three films.5 Are those the films that you looked at6 before you did your surgery on Priscilla Schmidt?7 And please take your time and look at the films.8 A Yeah, I believe they are.9 Q All right.

10 A Yes.11 Q Did you believe in any of the films --12 and we'll mark the disk I think might be the easiest13 thing to do. It's on a disk. We'll mark the disk14 as Exhibit 2, if that's all right.15 When you looked at the films, did you16 believe that those films were adequate to do a17 complex surgical extraction of an ankylosed tooth K18 safely on my client, Priscilla Schmidt?19 MR. SILVER: Object to the form.20 THE WITNESS: After reviewing the imaging21 with Dr. Myall, we determined that the imaging22 was adequate to do the procedure.23 BY MR. HUEGLI:24 Q All right. And did Dr. Myall tell you,25 as the trainer of you as his student, that you did

Page 59

1 not need to do any other imaging?2 A I don't know if that was specifically3 said, but it was said that the imaging was adequate4 in order to do the procedure.5 Q Based upon your skill, training and6 experience, did you question Dr. Myall's decision on7 that issue?8 A We -- I'd agreed with his assessment at9 the time.

10 Q And did you believe that those films that11 you're looking at on Exhibit No. 2 adequately12 exposed the entire tooth K?13 A Yes.14 Q And did it show the apex of tooth K?15 A Yes.16 Q Did you believe that a pano, a panoramic17 X-ray, might have been helpful to you at the time?18 A Possibly, but unlikely.19 Q Did you make a conscious decision not to20 do a pano?21 A We decided to not do any other imaging.22 Q And why was that?23 A Because we assessed the film and agreed24 that it has adequate exposure of the surgical site.25 Q Okay. I'd like to go over now the

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1 documents that you have in front of you regarding2 your first visit with Priscilla Schmidt. And the3 first document has a Bates stamp number of 38 on the4 bottom right-hand corner.5 A Sorry, can you show that to me? This6 one?7 Q Certainly.8 A Oh, you want me to find that --9 Q This one does not, but it has a number 13

10 on the bottom left. Okay?11 A Okay, yes.12 Q Is that your operative note?13 A Yes.14 MR. SILVER: Show me where you are15 looking. Okay, got it.16 BY MR. HUEGLI:17 Q All right. Did you determine that she18 had an ankylosed baby tooth K in an adult?19 A That was the diagnosis -- that was the20 diagnosis, yes.21 Q And under Bates stamp No. 38, this22 two-page document, is that your operative note?23 A That is the note after it's been24 reviewed, yes.25 Q And did you review that before the

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1 deposition today?2 A Yes.3 Q And is everything in that note true and4 accurate, to the best of your knowledge?5 A To the best of my knowledge, yes.6 Q And were you careful when you dictated7 the note?8 A Yes.9 Q And were you careful when you took the

10 history?11 A Yes.12 Q And were you as careful when you dictated13 the note and took the history as you were during14 your surgery?15 MR. WISWALL: Object to the form.16 MR. SILVER: Object to form.17 THE WITNESS: Yes, I'm as careful as I18 can be, yes.19 BY MR. HUEGLI:20 Q All right. Did you believe when you21 first met Priscilla Schmidt that the ankylosed tooth22 K that you saw in the films before you did the23 surgery served any material function in her body?24 A It served a function prior to being25 ankylosed --



17 (Pages 62 to 65)

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1 Q At the time you saw her, did it serve any2 material function? Was it necessary to eat or to3 drink or to swallow? Did it have any function as4 far as life-sustaining services?5 A No.6 Q When you were trained by Dr. Myall, were7 you trained, when taking out an ankylosed baby tooth8 K, to always take out the entire tooth?9 A No.

10 Q What special training did you have11 regarding the removal an ankylosed tooth K or less12 than the entire tooth?13 A The specific tooth K?14 Q Uh-huh.15 A None.16 Q Okay. And ankylosed teeth, did you ever17 receive any training on removing less than the18 entire tooth?19 A Yes.20 Q What type of training did you receive21 from Dr. Myall?22 A Any tooth, not just an ankylosed tooth,23 has the potential of not being completely removed24 should there be additional risk to the patient or25 increase in risk by proceeding.

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1 Q And I want to limit my questions in this2 deposition to ankylosed teeth. Okay?3 A Okay.4 Q Did you receive training that if there5 was risk to the patient, substantial or material --6 do you know what those terms are, "substantial risk"7 or "material risk"? Do you know what that means?8 A I do know what that means. I'm not9 entirely sure if I understand how you are using

10 those terms.11 Q All right. What is your understanding of12 a material risk?13 A For extraction of an ankylosed tooth?14 Q As a doctor when you were giving informed15 consent to a patient, what is your understanding of16 the term "material risk"?17 A Risk of health, wellbeing or life.18 Q Okay. In the removal of an ankylosed19 tooth, what training did you receive when it would20 be appropriate to remove less than the entire tooth?21 A It's the same training I received on22 removing other teeth, which would be if roots are in23 close proximity to other structures, such as muscles24 or nerves, or if root fragments are particularly --25 would require particularly extensive surgery, that a

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1 decision will have to be made whether or not the2 risk is worth the benefit of removing the tooth, the3 entirety of the tooth.4 Q You just told me that your training for5 ankylosed teeth is the same as removing any other6 tooth; did I understand that correctly?7 A I'm saying the risk assessment is the8 same.9 Q Specifically in ankylosed teeth, describe

10 the training you had and the reasons why you would11 take out less than the entire tooth.12 A There are several reasons to not take out13 the entirety of the tooth.14 Q Okay.15 A One would be you cannot visualize a piece16 of the tooth. So you would not see it, either not17 on imaging or you don't see during the operation, in18 which case it's possible to have a part of the tooth19 remaining.20 The other one is if removing the tooth21 causes an increased risk, and that risk outweighs22 the benefits to surrounding structures.23 Q Okay. What discussions did you have with24 your teacher, Dr. Myall, regarding how this25 procedure would be done before you actually did this

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1 complex surgical extraction on Priscilla Schmidt?2 MR. SILVER: Object to the form.3 THE WITNESS: We discussed -- I presented4 the patient to Dr. Myall --5 BY MR. HUEGLI:6 Q What do you mean by "presented"?7 A Presented? After I take a history and8 then do an exam, we congregate in the dictation9 room, and together with the film uploaded, I present

10 the patient to Dr. Myall, give her history, her11 presentation.12 Q Was she there in the room?13 A No.14 Q Okay. Just the two of you?15 A There were probably other residents in16 the room.17 Q Okay. Did Dr. Myall give you any special18 instructions of any kind on how to do this surgery?19 A We discussed possible approaches to the20 surgery.21 Q Let's talk about those.22 A Okay.23 Q What did you discuss?24 A So we discussed anesthesia, meaning the25 numbing, we discussed the possibilities of a buccal



18 (Pages 66 to 69)

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1 versus a lingual approach.2 Q What does that mean?3 A Meaning approaching the tooth from the4 outside versus the inside.5 Q And what did you decide?6 A We decided that a buccal approach would7 be the safer approach.8 Q Did you agree with that decision?9 A Yes.

10 Q All right. What else did you discuss11 regarding the training that Dr. Myall gave you to do12 a complex surgical extraction of an ankylosed tooth13 K in an adult?14 A We discussed the position of the nerve --15 Q What nerve?16 A The inferior alveolar nerve as well as17 the mental foramen.18 Q Could you see that nerve on those films?19 A Yes, in part.20 Q Was the inferior alveolar nerve clearly21 visible on those films that you just showed us22 that's Exhibit 2?23 A We saw the superior cortical outline of24 the alveolar.25 Q The what?

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1 A The top part of the cortal outline of the2 nerve.3 Q Okay. And did those films clearly show4 the mental nerve?5 A I believe so.6 Q Okay. And did Dr. Myall tell you that he7 could see the mental nerve on those films?8 A I don't recall that.9 Q Okay. But you're telling me you can see

10 the mental nerve on those films.11 A I don't have the imaging right now, but12 at the time I believe so.13 Q And could you see all the branches of the14 mental nerve on those films?15 A You can only see the cortical outline,16 you cannot see the nerve itself. You can only see a17 canal.18 Q Were there other tools available to you19 that you could have used to get a clear image of the20 cortical outline of the mental nerve besides the21 films that you had?22 A Are you asking if we could have taken23 more images?24 Q Yes.25 A Yes, they would have been available.

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1 Q And were other images, such as a CT scan,2 or other films such as a pano, have been better in3 outlining the mental nerve and the inferior alveolar4 nerve than the films that you had?5 MR. WISWALL: Object to the form.6 MR. SILVER: Object to the form.7 THE WITNESS: It would have given8 additional views.9 BY MR. HUEGLI:

10 Q And would that have -- in your mind,11 would that have been safer to do or not necessary to12 do?13 MR. WISWALL: Object to the form.14 THE WITNESS: Again, at the time of the15 surgery?16 BY MR. HUEGLI:17 Q Uh-huh.18 A We did not think it was necessary.19 Q All right. And the reason was why?20 MR. WISWALL: Object to form.21 THE WITNESS: Because we had adequate22 imaging at the time.23 BY MR. HUEGLI:24 Q Tell me the rest of the plan that Dr.25 Myall and you discussed.

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1 A We were just talking about the plan of2 procedure and the plan for care.3 Q The plan of her surgery?4 A So we discussed the flap, the flap5 design.6 Q Let's talk about that. What was the flap7 design?8 A The flap was -- we decided that a coronal9 incision around the gingiva was the appropriate

10 design.11 Q What were the other options available?12 A The other options would have been13 possible releases, releasing flaps or direct access,14 which is probably -- I've not seen before.15 Q Why did you decide on a coronal flap?16 A Because it was deemed to be the safest17 to -- it was deemed to be the safest in order to18 visualize the nerve if it is necessary.19 Q What else did you discuss?20 A We discussed the proximity of the tooth21 to the nerve.22 Q I'd like you to go in as much detail as23 you can recall regarding those important24 discussions.25 A We're limiting the discussion to a



19 (Pages 70 to 73)

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1 discussion between the nerve -- distance between the2 nerve and the tooth?3 Q The discussions regarding the mental4 nerve itself.5 A Okay. So we looked at the imaging and6 were aware of the proximity to the mental foramen,7 and we discussed the possibility that during a flap8 it might be necessary to expose the nerve and9 protect it.

10 Q Okay. And what did Dr. Myall say11 regarding the risks of that exposure to the nerve?12 A The risk of visualizing the nerve or the13 risk to the patient --14 Q Risk to the patient of injuring the15 nerve, did you discuss that with Dr. Myall?16 A We discussed the fact that most likely,17 if there's visualization of the nerve, that there18 will be some numbness, some temporary numbness.19 Q Okay. And by "most likely," you meant20 more likely than not, is that my understanding of21 "most likely"?22 A Yes, yes.23 Q What else did you discuss regarding24 injury to the mental nerve?25 A He asked me if I'd talked to the patient

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1 about risks to the mental nerve, and as far as I can2 recall, that was the extent of our discussion.3 Q And what did you tell him?4 A That we had not discussed that at that5 point because we hadn't presented the treatment6 options to the patient.7 Q And did Dr. Myall discuss with you as to8 what you should tell the patient since you and he9 had come to the conclusion that more likely than not

10 there would be an injury to the mental nerve to some11 degree?12 MR. WISWALL: Well, I'm going to object13 to the form. He never said there would be an14 injury, he said there would be some temporary15 numbness.16 BY MR. HUEGLI:17 Q Okay. Does temporary numbness mean18 temporary injury to a nerve? What causes temporary19 numbness?20 A Temporary numbness would be stretching21 the nerve.22 Q Would temporary -- in layman's terms,23 would temporary numbness equate to a temporary24 injury to the nerve?25 A Yes.

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1 Q Okay. And did Dr. Myall discuss with you2 whether you should tell Mrs. Submit that it more3 likely -- that most likely or more likely than not,4 she would have a temporary injury to her mental5 nerve if she had the surgery?6 A We talked about the fact that if the7 nerve indeed does need to be exposed that there will8 be temporary numbness.9 Q And did you discuss with Dr. Myall

10 whether you should inform your patient of that fact?11 A I don't think we discussed it.12 Q With Dr. Myall? You didn't discuss it13 with Dr. Myall whether you should tell her?14 A No, we did not discuss it.15 Q Why not?16 A Because we -- it's a part of a evaluation17 of the tooth and the position that the patient will18 be counseled on risk of nerve damage and19 possibilities of nerve damage.20 Q Did you believe that after that21 discussion, in your own mind -- I'm trying to get to22 your state of mind now -- that Dr. Myall expected23 that you would tell this patient that she would, in24 all probability, have some temporary injury to a25 nerve during this surgery?

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1 A If the flap would require a2 visualization, then yes.3 Q Let's talk about the informed consent4 document.5 A Yes.6 Q You should have that there, and I have --7 we have a Bates number on this one of 65.8 MR. WISWALL: The exhibit packet here?9 MR. HUEGLI: Yes, it's in the packet.

10 THE WITNESS: It's not in my packet. I11 still can't find it. Do you want me to just12 look at this one?13 MR. WISWALL: It's three from the back, I14 think.15 THE WITNESS: Three from the back. Oh,16 there, three from the back.17 MR. SILVER: Well, go ahead, I'll look18 for it.19 THE WITNESS: This one, right?20 MR. HUEGLI: Yes, sir. All right.21 BY MR. HUEGLI:22 Q First of all, can you tell me what your23 understanding of what "informed consent" means?24 A Informed consent means that a patient has25 been given all the information necessary to make a



20 (Pages 74 to 77)

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1 decision about possible treatment.2 Q Why is informed consent important for a3 patient?4 A To -- in order to assess the risks and5 the benefits of a procedure, and to make a decision6 of whether the patient would like to have that7 procedure or not.8 Q Did you believe in 2012 that it was9 important to give the patient all of the necessary

10 information before you do the procedure?11 A Yes.12 Q Who filled out the form that you have in13 front of you, that is the informed consent document?14 A I did, except for the signature.15 Q And is it in your handwriting?16 A It looks like my handwriting.17 Q All right. And at the top it says, "Drs.18 Myall and associates will perform the following19 procedure," and, quite frankly, I can't read the20 next line.21 A Okay.22 Q Can you read it for me?23 A Yep. "Extraction," and then there's24 crossed out number "14/K."25 Q Why did you scratch that out?

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1 A Well, because it wasn't 14 or K, it was2 just tooth number K.3 Q Okay. Why did you write 14/K in there in4 the first place?5 A I don't know.6 Q All right. And the next one is -- it7 doesn't look like English to me, it might be. What8 is it?9 A It's a positive sign and then an L and an

10 A.11 Q An L?12 A Yes.13 Q And then there's scribbles with something14 next to it. What is that?15 A Sorry, what are you referring to?16 Q I see a hashmark and a letter that looks17 like a U, and then a little mark, and what might be18 an "LA."19 A So there's a number sign.20 Q Yep.21 A The letter K?22 Q That's the letter K.23 A Yes.24 Q Okay.25 A And a plus.

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1 Q There's a plus. Okay.2 A Uh-huh. And the letter L.3 Q Letter L.4 A And the letter A.5 Q Okay. Now, did you have an expectation6 that Priscilla Schmidt would be able to read that7 information and know what it meant on the document8 that she signed?9 A We read it together.

10 Q And I'm looking at the document, and I11 was not with you, of course, but when I read the12 document, I'm unable to read and understand it --13 I'll call it hieroglyphics -- but the medical14 terminology you wrote there, did you have an15 expectation that Priscilla Schmidt could understand16 what that writing meant, independent of your17 explanation?18 MR. WISWALL: I'm going to object to the19 comment and just answer that.20 BY MR. HUEGLI:21 Q Go ahead.22 A You would have to ask her that. I23 don't -- I wrote it, and we looked at it together,24 and read it together. So my expectation was that25 she understood what I wrote.

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1 Q All right. It says, "Dr. Myall and2 associates will perform the procedure." Was it your3 understanding that this document was intended to4 lead Ms. Schmidt to believe that Dr. Myall and5 others would do her operation?6 A Yes.7 Q Let's go to the next paragraph, it says,8 "Physicians other than operating practitioners..."9 Who was the operating practitioner, was that Dr.

10 Myall?11 A I would say it's the person doing the12 operation. So, in our case, it would be Dr. Myall13 and Dr. Johnson and myself.14 Q Okay. "...including, but not limited to15 residents, will be performing important tasks16 related to the surgery." What was your17 understanding of what that means?18 A That means that residents will be -- it19 means that physicians, other than the operating20 practitioner, as well as residents, will be21 performing at least part of the procedure.22 Q Okay. Does that mean to you that Dr.23 Myall will perform the procedure or some of it?24 A No.25 Q Well, then why is his name on there as



21 (Pages 78 to 81)

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1 the doctor who is going to be performing the2 procedure? Why did you write that on there? Why3 didn't you just write on there "I will perform the4 procedure"?5 MR. WISWALL: Wait a second. I'm going6 to object to the phrase --7 MR. HUEGLI: I'll rephrase. Let me8 rephrase the question.9 BY MR. HUEGLI:

10 Q You wrote on this document "Dr. Myall and11 associates will perform the procedure."12 A Yeah.13 Q In this case Dr. Myall performed none of14 the procedure; isn't that correct? That's what Dr.15 Johnson told us.16 A He did not scrub into the procedure.17 Q Right. So performing the procedure means18 that he was the operational doctor, isn't that what19 a layman would understand on our jury?20 MR. WISWALL: Object to the form.21 MR. SILVER: Object to the form.22 THE WITNESS: Again, my understanding is23 that we operate as a team, and the team that is24 taking care of the patient is on the consent25 form.

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1 BY MR. HUEGLI:2 Q All right. Is the nurse out in front,3 who does the intake at the secretary secretarial4 desk, on the team?5 A Yes.6 Q And does that mean that she is performing7 part of the procedure?8 A No, she is not directly performing the9 procedure.

10 Q And Dr. Myall did not directly perform11 any of the procedure, did he? That's what Dr.12 Johnson last told us.13 MR. WISWALL: Object to form.14 MR. SILVER: Object to form.15 BY MR. HUEGLI:16 Q Go ahead.17 A I consider supervision of a procedure --18 supervision of a resident an intricate part of the19 procedure.20 Q Okay. It goes on to state, "in21 accordance with hospital policy," do you see that?22 A Yep.23 Q Please describe the hospital policy that24 Mrs. Submit was led to understand.25 MR. WISWALL: Object to the form.

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1 THE WITNESS: It's the rules and2 guidelines that the hospital puts forth that3 are supposed to be followed by attendings,4 residents, physicians.5 BY MR. HUEGLI:6 Q And what are those rules and guidelines7 as it relates to this document?8 A I don't know the details.9 Q Okay. It says, the next paragraph,

10 "Qualified medical practitioners who are not11 physicians who will perform important parts of the12 surgery or administration of anesthesia will be13 performing only tasks that are within their scope of14 practice..." Do you see that?15 A Yes.16 Q "...as determined under state law and17 regulation." Do you see that?18 A Yes.19 Q Let's go down to the next paragraph. I20 am unable to read the words myself, other people may21 be able to. The first word looks like "pain."22 Okay?23 A Yes.24 Q Can you read those words for us?25 A "Pain, bleeding, swelling, infection,

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1 damage to nerve."2 Q Is there any statement on here that says3 mental nerve?4 A No.5 Q All right. Now, am I correct in assuming6 that in all complex surgical extractions, whether it7 be tooth K or a molar or an incisor or a bicuspid,8 that as the operating doctor, you use the same9 language in every informed consent document?

10 A No.11 Q What's the difference?12 A Certain patients have additional risk13 factors that would be taken into consideration.14 Q All right. Would I be safe in assuming15 that, at a minimum, you would put this in every16 informed consent document?17 A Yes.18 Q And there's an initial at the bottom19 right-hand corner, and is that the initial of20 Priscilla Schmidt?21 A I believe so.22 Q Okay. In every tooth that's pulled in23 the mouth -- and I assume that OHSU pulls thousands24 of teeth a year, would be a fair assumption, between25 the dental school and the maxillofacial school?



22 (Pages 82 to 85)

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1 A Probably, yes.2 Q In every tooth that's pulled, is there3 always a risk of pain?4 A Yes.5 Q Is there always a risk of bleeding?6 A Yes.7 Q Is there always a risk of swelling?8 A Yes.9 Q Is there always a risk of infection?

10 A Yes.11 Q And is there always a risk of damage to12 nerve?13 A Yes.14 Q How long did it take for you to fill out15 this form and go over this with Mrs. Submit?16 A You are just talking about the form or17 the entire consent process?18 Q The entire consent process.19 A I would say probably about 10 to 1520 minutes.21 Q And how long did it take you to go over22 the entire plan with Dr. Myall in the room that you23 talked about before, you went over the X-rays --24 A In the dictation room?25 Q Everything in the dictation room. You

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1 went over the X-rays, you went over the plan, you2 went over the mental nerve, you went over the3 exposure?4 A Probably about the same amount of time,5 10 to 15 minutes.6 Q Okay. And during this 10 to 15 minutes,7 was Ms. Schmidt sitting in the examining room by8 herself?9 A I believe so, yes.

10 Q So, all out, do we have about 30 minutes11 from the time you first started talking to Dr. Myall12 about the plan until the time you finished with the13 informed consent conference?14 A Possibly. I don't recall the exact time.15 Q Did Dr. Myall participate in the16 conference, in the informed consent conference, with17 my client, Priscilla Schmidt?18 A I don't think so.19 Q He was not in the room?20 A He'd seen the patient, but he was not21 there while we were doing the consent.22 Q Okay. What is PAQR? What does that23 stand for?24 A It's an acronym used as the -- do you25 want to know what each letter stands for?

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1 Q Yes.2 A Procedure, alternatives, risks and3 questions.4 Q Okay. In this second visit with5 Priscilla Schmidt in the PAQR conference -- okay? I6 want to go right to that one now.7 A Yes.8 Q We already know that you introduced9 yourself as Dr. Kupfer, and that was before the PAQR

10 conference?11 A Yes.12 Q And then after that meeting you went and13 talked with Dr. Myall and then came back, as I14 understand it?15 A Yes.16 Q In the second meeting, in the PAQR17 conference, you have indicated it was important to18 tell your patient all of the important things that19 she needed to know about her surgery in laymen's20 terms?21 A Yes.22 Q In the second conference, did you tell23 her that you were a student?24 A No.25 Q Did you tell her that you'd only been out

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1 of dental school for eight months?2 A No.3 Q Did you tell her that you had not removed4 an ankylosed tooth K at any time while at OHSU?5 A Sorry. Can you repeat the question? It6 sounds like a double negative.7 Q Did you tell her that during the eight8 months that you were a student at OHSU, you had9 never done this surgery?

10 A I've not told her that I've not done the11 surgery before, is that the question you asked?12 Q Let me ask you this question: I13 believe -- I could be wrong, the transcript will14 tell me -- while you were at OHSU during the eight15 months you were there, you had never removed an16 ankylosed tooth K in an adult before at OHSU?17 A I don't know the answer to that. It's18 possible, but I don't recall.19 Q Did you have any special skill or20 training in removing an ankylosed tooth K? I think21 you said no.22 A Do you mean other than my eight months of23 surgical training at OHSU?24 Q Yes.25 A No.



23 (Pages 86 to 89)

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1 Q In the second meeting, did you say to2 Mrs. Submit, "I'm a student. I've been here only3 eight months"?4 A No.5 Q Do you think that that information might6 have been important in her making a decision as to7 whether or not she wanted you to do a complex8 surgical extraction in her mouth?9 MR. WISWALL: Object to the form.

10 MR. SILVER: Object to the form.11 THE WITNESS: I was under the impression12 that Ms. Schmidt was aware I am a resident.13 BY MR. HUEGLI:14 Q How would she know that if nobody told15 her?16 MR. WISWALL: We have covered this17 already. I mean, he said he had a badge --18 MR. HUEGLI: I'm just talking about OHSU.19 Well, I'll rephrase the question, Mike.20 BY MR. HUEGLI:21 Q Did you point out to her that you had a22 badge that said resident?23 A No.24 Q Do you know whether she understood what25 that meant?

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1 A To be a resident?2 Q Yes.3 A No.4 Q Do you think it would be important to5 describe to your patient the fact that you were a6 student and what "resident" meant?7 A It didn't occur to me at the time.8 Q Did anybody ever teach you that that9 might be important to tell people you're a student

10 and not an oral maxillofacial surgeon?11 A Yes.12 Q Who taught you that?13 A Well, that is part of the reason why we14 wear our ID badges and introduce our attendings. So15 it's taught in the department as well as on the16 hospital floor.17 Q Okay. Did you tell Ms. Schmidt how many18 ankylosed tooth Ks you had removed in the past?19 A No.20 Q Did you tell her that you had done 50 or21 60 of them?22 A No.23 Q If she testifies that you told her that,24 would that be not true?25 MR. WISWALL: Object to the form.

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1 MR. SILVER: Object the form.2 MR. HUEGLI: I'll rephrase it.3 BY MR. HUEGLI:4 Q Had you performed 50 or 60 ankylosed5 tooth Ks before you met her?6 A No.7 Q In looking at the informed consent8 document, I want you to honestly tell me --9 honestly -- and right up until today, how many

10 patients read all of the fine print in that11 document?12 MR. WISWALL: I'm going to object to the13 form. Calls for speculation.14 BY MR. HUEGLI:15 Q Go ahead. If you know.16 A You want a percentage of how many?17 Q Let me put it this way -- I can only18 speak for myself, of course -- when I go to a19 doctor, I look at documents with fine print on them,20 and they are medical documents, I generally sign21 them and don't read them. That's just me. I don't22 know what a jury does.23 A Yeah.24 Q Do most people not read all the fine25 print and simply sign the document, honestly?

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1 MR. WISWALL: Object to the form.2 THE WITNESS: I don't know the answer to3 that.4 BY MR. HUEGLI:5 Q You don't?6 A No.7 Q Do you ever watch them?8 A I ask them if they had adequate time to9 look at the document.

10 Q Are there occasion, in your experience,11 when you hand the document to people and you know of12 your own personal knowledge that they just simply13 sign it and they don't read everything on it?14 A I have to go with the information that15 the patient gives me.16 Q I'll ask the question one more time.17 Have you had occasions, many occasions, where you18 have given this document to people after you have19 talked to them, you handed it to them and they20 immediately sign it and they don't read it at all?21 MR. WISWALL: Object to the form.22 THE WITNESS: I've had that discussion,23 yes.24 BY MR. HUEGLI:25 Q And when that happens, what do you do?



24 (Pages 90 to 93)

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1 A I ask the patient if they read the entire2 document, and if they had enough time to look at it.3 Q And there are occasions when you have had4 patients say, you know, "I didn't read the document,5 but I trust you, Dr. Kupfer"? Have you had that6 happen?7 A Not that I recall.8 Q Really?9 A Not that I recall a specific instance.

10 Q I want to go now over what you told11 Ms. Submit, and please exhaust your memory,12 everything you told her about this procedure: The13 procedure, the alternatives and the risks to her.14 Go ahead.15 A Okay. So after we had seen Ms. Schmidt16 together, we discussed her options, which would have17 been -- which was to either monitor the tooth and18 have regular checkups, including hygiene.19 Q Please describe everything you discussed20 in regard to that option.21 A Yeah. So we discussed that the option22 would be to have an operation or to watch and23 monitor the tooth.24 Q And what did she say?25 A I'm sorry, I was still describing. At

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1 that time she didn't respond to that. We discussed2 that we had the option to try to remove the tooth or3 she would have the option to monitor the tooth over4 time, which would have to include periodontal5 maintenance and cleaning; and then we discussed the6 fact that there's probably a limitation on the7 amount of maintenance that can be done, and that8 there's going to be a fair likelihood that that9 tooth will cause her trouble in the future.

10 After that we discussed the surgical11 option of removing the tooth. We did -- I described12 the extraction to her as a complex tooth extraction.13 And we discussed the possibilities of the risks of14 pain, bleeding, infection, nerve damage, partial15 removal, as well as possibly more operations.16 Q I want you to discuss with me, tell me --17 you'll be telling the jury on videotape -- all of18 the options that you gave her, other than removal of19 the entire tooth, besides the ones you have just20 told me here today.21 A The option was to surgically remove the22 tooth, and the option of -- the aspect of not23 removing the entirety was covered during the24 possibilities of risks and complications.25 Q All right. Tell me everything you told

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1 her about removing less than the entire tooth.2 A I told her that we would try to remove3 the entire tooth unless we think either there's an4 increased risk to removing the entirety of the5 root -- the tooth at the time of the surgery, or if6 a part of the tooth -- if a small fragment of the7 tooth is left behind, then it would require an8 extensive operation to remove that.9 Q And is that how Dr. Myall trained you to

10 do a PAQR?11 A Yes.12 Q Please describe to me how you were13 trained in removing an ankylosed tooth K in14 relationship to removing only the crown of the tooth15 and leaving the remainder of the tooth in.16 MR. WISWALL: Object to the form.17 BY MR. HUEGLI:18 Q If you were trained at all. I don't19 know.20 MR. WISWALL: Here's the objection:21 Before you were very specific that you just22 wanted training limited to tooth K, ignoring23 any other training that he received. And so24 for purposes of this question, are you also25 asking him just the training with respect to

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1 tooth K or how he was trained in general?2 MR. HUEGLI: Training to tooth K.3 THE WITNESS: Specific ankylosed tooth K4 in an adult?5 BY MR. HUEGLI:6 Q You bet, a baby tooth.7 A No.8 Q Did you receive any training -- I don't9 know what the "no" meant, and I apologize if I'm

10 going over the same ground. Did you receive any11 training that when you were removing an ankylosed12 tooth K in an adult, that one of the options is to13 remove only the crown of the tooth because removing14 the remainder of the tooth is not only unnecessary,15 but increased risk of injury to the mental nerve?16 MR. SILVER: Object to form.17 BY MR. HUEGLI:18 Q Did you receive any training like that at19 all ever?20 MR. WISWALL: Object to the form.21 THE WITNESS: I received training in the22 fact that it's a possibility to remove only23 part of the -- as much of the tooth -- sorry.24 I received training in the fact that it's an25 option to remove part of the tooth, and to not



25 (Pages 94 to 97)

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1 do excessive surgery unless necessary.2 BY MR. HUEGLI:3 Q Okay. And in this case, did you come to4 a conclusion that it was necessary, medically5 necessary, to remove the entire tooth K as opposed6 to only the top?7 A I gave that to Ms. Schmidt as an option,8 and she made the decision whether or not she would9 like to have the procedure.

10 Q What did you tell her her risks were in11 removing the entire tooth as opposed to only12 removing the top of it?13 A I did not specify that.14 Q Why not?15 A Because her -- we determined her risk of16 the operation.17 Q I don't understand your answer.18 A Well, we determined the risk -- we talked19 about the risk of her procedure, which might or20 might not include a partial removal.21 Q All right. Dr. Kupfer, was it less risky22 to the mental nerve in February of 2012 to do no23 surgery as opposed to doing surgery?24 A Yes.25 Q Was it less risky to the mental nerve to

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1 do a partial removal of the top of the tooth as2 opposed to removing the entire tooth?3 A I think the risk was the same.4 Q Is there a difference, in your mind,5 between an informed consent document and a release?6 A Yes.7 Q Please tell me what the difference is in8 your mind.9 A An informed consent means a patient has

10 given -- had all the options -- had all the11 information necessary to make a decision, and a12 release is sort of a permission.13 Q Did you -- you never intended this14 informed consent document to release you from15 negligent care, did you?16 A No.17 Q Did you ever intend that this document,18 this informed consent document, would release you19 from liability if your conduct fell below the20 standard of care expected of a doctor and you21 injured the mental nerve?22 MR. WISWALL: Object to the form.23 THE WITNESS: Assuming -- we're making an24 assumption that that happened?25

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1 BY MR. HUEGLI:2 Q No. I'm not making an assumption that3 had happened. I'll state the question again. Did4 you believe that this document released you from5 liability if during the course of your surgery your6 conduct fell below the standard of care expected of7 a reasonable and prudent dentist, and you caused an8 injury to Ms. Schmidt's mental nerve?9 A No.

10 Q Did you know when this document was11 signed that if you, in fact, caused an injury12 through negligence, you could potentially be liable?13 A Yes.14 Q And that this document would play no role15 in releasing you from that liability?16 MR. WISWALL: Object to the form.17 BY MR. HUEGLI:18 Q Is that correct?19 MR. WISWALL: Whether you had that or20 thought of that at the time, I think is the21 question.22 BY MR. HUEGLI:23 Q Yeah. Let me go through it this way.24 When you got your training at the medical school on25 informed consent, did they teach you that this

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1 document is not a legal release, it doesn't release2 you from anything? It's part of your training,3 wasn't it?4 A Can you repeat the question?5 Q Yes. When you were trained on informed6 consent, did the dental school teach you that an7 informed consent document and a release of liability8 are different things?9 A Yes.

10 MR. HUEGLI: Do you want take a break?11 I'm just going to get to the surgery now.12 MR. WISWALL: What's your timing, what's13 your thinking?14 MR. HUEGLI: It will be the best part of15 the day.16 MR. WISWALL: I meant time wise, not how17 good it will be.18 MR. HUEGLI: I'll be done by 4:00.19 MR. WISWALL: Okay. So are you talking20 about a lunch break right now?21 MR. HUEGLI: Yes, or if you want to keep22 going, I'm fine. Let's take a break.23 MR. WISWALL: All right. Let's start up24 at 1:00 o'clock.25 ///



26 (Pages 98 to 101)

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1 (Recessed at 11:56 a.m., and2 resumed at 1:08 p.m.)3 BY MR. HUEGLI:4 Q Dr. Kupfer, are you still doing about 6005 complex surgical extractions a year?6 A Right now, no.7 Q Okay. You were at the time in 2012?8 A That would be -- yes. Yes, that estimate9 is probably in the right range.

10 Q And how many surgical procedures are you11 doing now?12 A Very few.13 Q Let's go back to 2012.14 A Okay.15 Q Would you pick a month out of the year16 after March for me, would you?17 A After March of 2012?18 Q Just pick a month.19 A April.20 Q Okay. April 2012. Do you remember the21 names of any patients that you operated on during22 the month of April of 2012?23 A Probably not, no.24 Q Do you remember in great detail the25 discussions you had with Dr. Myall regarding

Page 99

1 treatment plans for the patients whose names you2 can't remember in 2012?3 A I remember having discussions about4 treatment planning with Dr. Myall for different5 patients, yes.6 Q Can you pick and describe to me, in any7 detail, any treatment plan that you discussed with8 Dr. Myall in 2012?9 A Yes.

10 Q Please describe one.11 MR. WISWALL: For this de-identify, don't12 use patient names or no names to identify a13 particular patient.14 THE WITNESS: Okay. So I can think of a15 pediatric patient at Doernbecher that we worked16 on together for some wisdom tooth removal. And17 we discussed the plan ahead of time, as well as18 the consent process with the parents, and the19 imaging results that was taken by the pediatric20 dental team at the time.21 BY MR. HUEGLI:22 Q Okay. Can you remember in great detail23 the PARQ you had with the parents, much like you did24 in Priscilla Schmidt's case, word-for-word type25 detail?

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1 A Word-for-word type detail? A lot of it,2 yes.3 Q Okay. Any others during the month of4 April 2012, besides the pediatric plan?5 A No. There was several, but not a6 specific one in detail.7 Q How about July of 2012?8 A No. I'd have to look at the record to9 jog my memory.

10 Q Is taking out part of the tooth -- in11 other words, when I talk about taking out part of12 the tooth, I'm talking about intentionally leaving13 tooth in the jawbone. Is taking out the top part of14 the tooth less risky to the patient than taking out15 the whole tooth when removing an ankylosed tooth K16 in an adult?17 A It depends on the distance of the root to18 the nerve.19 Q In this case, was it less risky or the20 same?21 A It would be the same.22 Q So taking out only the top of the tooth23 was the same risk to the patient as taking out the24 entire tooth?25 A We're talking about the entirety of the

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1 crown, the flat surface of the tooth you are talking2 about?3 Q Well, there's two parts, in my mind, to4 the tooth. There's the top of the tooth and the5 bottom of the tooth. The top of the tooth is the6 crown?7 A Yes.8 Q The bottom of the tooth is ankylosed; is9 that correct?

10 A Well, the top of the tooth can also be11 ankylosed.12 Q Was it here?13 A Partially, yes.14 Q Is it less risky to Priscilla Schmidt to15 take off the crown of the tooth and leave the16 remaining tooth in the jaw that's ankylosed as17 opposed to taking out the whole tooth?18 A I don't think so, no.19 Q Is there more surgery involved?20 A There's more surgery.21 Q Would the result to her, both the22 functional and esthetic result be the same, either23 way?24 A It depends on the distance to the nerve.25 Q In this case.



27 (Pages 102 to 105)

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1 A In this case, I believe it would have2 been the same.3 Q Is there more bone and tissue removed4 when taking out the whole tooth than when you only5 take out the top of the tooth?6 A In her case or in general?7 Q In her case.8 A In her case it did involve more bone9 removal, yes.

10 Q If you took out the whole tooth?11 A Yeah, a little bit more.12 Q And I'm going to use the term "bigger13 surgery," for lack of a better term in layman's14 terms. Is it a bigger surgery to take out the whole15 tooth than take out only the top of the tooth?16 A Yeah, it would be slightly bigger.17 Q If we could go over your note now, your18 operative note. It shows the author is Philipp19 Kupfer. It's dated February 23rd on the top right?20 A Yes.21 Q All right.22 A Up here, yes.23 Q It shows a note, it says 2/24/12 at 6:04.24 Do you see that?25 A Yes.

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1 Q And what does that note term mean and2 what's the date mean?3 A That's the date when I submitted the note4 as completed.5 Q All right. And what's the date over here6 filed 3/12/12 at 1353; why is that date on there?7 A I don't know how that date gets on there.8 That would a question for the Epic personnel on how9 that date gets on there.

10 Q You don't know?11 A I don't know how that date got on there.12 Q It says, "She had an ankylosed baby tooth13 that had an RCT performed." Is that root canal?14 A Yes.15 Q And did it, in fact, have a root canal?16 A It appeared that she had work done that17 involved the pulp of the tooth.18 Q Did this tooth have a root canal done?19 A The only way for me to know that for sure20 is to look at what that provider did back then.21 Q Okay. You can't tell by your surgery?22 A You can tell -- you could tell if the23 root has been instrumented and filled. You could24 not tell if it wasn't filled without a restorative25 material.

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1 Q When you took the tooth out, were you2 able to tell from the pieces you took out?3 A I could tell that there was extensive4 work, I could not tell for sure if it was a root5 canal.6 Q If there had been a root canal, would7 there have been any reason for her to have pain in8 the tooth, sensitivity?9 A Possibly, yes.

10 Q Did that surprise you that she'd had a11 root canal and was having hot and cold sensitivity12 on that tooth?13 A Sorry, I'm not aware of her hot and cold14 sensitivity on the tooth.15 Q Did you look at her prior records from16 the dental -- from the dental clinic?17 A From the dental clinic, yes, I believe I18 did.19 Q Did you study those before you met her?20 A I looked at the referral. I don't think21 that she had a note in place at the time when we saw22 her.23 Q Well, then let me go back over with you,24 what were her specific complaints that day?25 A Okay.

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1 Q Go ahead.2 A Oh, you are asking me what her3 specific --4 Q Yes.5 A She was telling me during our interview6 that she currently has no pain, but she has had pain7 in the past in that area, which included sort of a8 pressure pain that felt like it was deep into her9 jaw.

10 Q Had she told you she had no pain that11 day?12 A She told me she had no pain at the time13 that I examined her.14 Q Okay. And it says, "It was recommended15 to there that the tooth needs to be removed because16 it causes periodontal problems." Who recommended17 the tooth be removed?18 A That was the wording that the urgent care19 clinic used -- hold on, I'm sorry. Yes.20 Q And your testimony is on the day you saw21 her, she denied any pain or sensitivity from that22 tooth?23 A Correct.24 Q Why do you suppose she was up to see you25 then if she had no pain and no sensitivity and no



28 (Pages 106 to 109)

Page 106

1 problems, when she was in your clinic, at all?2 MR. SILVER: Object to form.3 MR. WISWALL: Misstates the prior4 testimony.5 BY MR. HUEGLI:6 Q All right. The day she was in your7 clinic, was she having any pain or sensitivity?8 A At the time that I saw her she did not.9 Q So why did you think that she was there,

10 because she had --11 A She had pain prior.12 Q All right. Says, "Imaging" --13 A Sorry, I've got to follow you there.14 "Imaging," yeah.15 Q It says, "The mental nerve is in close16 proximity to K." Do you see that?17 A Yes.18 Q You said you could see that on the films?19 A Yeah.20 Q All right. It says, "PARQ held. Patient21 understands the risks of damage to other teeth and22 the risk to the nerve, particularly the mental23 nerve."24 A Yes.25 Q So did you specifically talk to her about

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1 the mental nerve then since this is in your note?2 A Yes.3 Q Did you use the term "mental nerve"?4 A Yes.5 Q Did you tell her that there was a risk to6 her, that the mental nerve could be permanently7 damaged to the point that she would have no mental8 nerve function?9 A I told her that there would be a risk for

10 permanent nerve damage, yes.11 Q Did you describe those risks to her other12 than permanent nerve damage?13 A I described to her the sensation and14 function of the nerve.15 Q Describe that to me, everything you told16 her about that.17 A I told her that the nerve -- the mental18 nerve is a sensory nerve that gives sensation to the19 lip and chin on that side, and that possible nerve20 damage can range anywhere from numbness, to21 tingling, to pain.22 Q Did you tell her that she could have23 permanent numbness, tingling and pain if the tooth24 was removed?25 A I told her it was a possibility.

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1 Q "Anesthesia options were discussed with2 the patient." What anesthesia options did you give3 her?4 A She had the options for just local5 anesthesia. She had the option of local anesthesia6 in combination with nitrous oxide sedation, as well7 as IV sedation, or oral sedation in combination with8 local anesthesia.9 Q You discussed all those with her in

10 detail?11 A Uh-huh.12 Q What did you tell her about the13 differences between the sedations?14 A I told her that it would be her decision15 in the sense of how comfortable she is with having16 dental procedures done. It would be her decision17 based on the timing that she would like to have it18 done. So like IV sedation or oral sedation would19 happen at a different date. And I told her that20 there are different levels of possible sedation for21 anxiety management.22 Q Okay. What did you tell her about that?23 A I told her that we can either do it24 without anesthesia, which would be similar to what25 she had done in the past in the sense that she would

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1 get numbing medicine, and then the operation would2 be performed. The next step up would be nitrous3 oxide sedation, where she could inhale gas that4 would make her relax but she probably would still be5 able to remember things. And the next step up would6 be an IV sedation procedure that when IV is7 inserted, a medicine is given through an IV.8 Q And did you describe to her the different9 risks of those sedation methods?

10 A I asked her if she would be interested in11 any of them, and was then going to follow up with12 the risks, depending on if she even had an interest13 in any sort of sedation.14 Q And what did she say?15 A She said, "I do not want any sedation."16 Q She didn't want any sedation at all?17 A Well, she wanted local anesthesia but no18 sedation.19 Q Okay. Let's go to the progress notes,20 please. It's the next page. It says, "Procedure21 performed, complex surgical extraction of full bony22 impacted number K," correct?23 A Hold on. You said the next page. I24 don't think mine is on the next page. Down --25 sorry, where are you reading there?



29 (Pages 110 to 113)

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1 Q "Procedure performed."2 A Procedure detail -- oh, yeah, right here.3 Yes.4 Q Okay. Is everything in that paragraph5 accurate?6 A Yes, I believe so.7 Q Okay. Under complications you put none.8 Do you see that?9 A Yes.

10 Q Why didn't you put under complications,11 "Patient will have some temporary anesthesia of the12 chin for awhile because the mental nerve was13 injured"? Isn't that a complication?14 A No, we wouldn't consider that a15 complication. It would be an expected result if the16 nerve was visualized that there would be some17 numbness. So that would be part of the exposure,18 not a complication.19 Q Okay. Let me ask you a question. Is20 this entire note typed by you?21 A The note was typed by me and submitted on22 that -- at 6:00 a.m. in the morning, and then an23 attending looks at it and can make changes to the24 note.25 Q And the attending is Dr. Myall?

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1 A That's correct.2 Q Can I see a copy of the original note3 that you submitted in this case?4 A I do not have a copy of it.5 Q How can I get that?6 A I believe Epic tracks every click that7 anybody does on the record.8 Q All right. Is that why we have a date of9 3/12 on here?

10 A Again, I cannot explain that date. I11 don't know how -- I don't know how the timestamping12 in Epic works.13 Q But, nevertheless, you make this document14 up, you put it in the computer and then the15 attending then at some later date can look at it?16 A Yes.17 Q And he can make changes on it if he18 wants?19 A They can make corrections, changes, they20 can send it -- they can ask a resident to review it21 and make changes, if asked for. Yeah, that's the22 process.23 Q All right. It says -- so what I'm asking24 you is: Do you have a specific recollection -- this25 is quite important -- that all the words in this

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1 note are your words as opposed to Dr. Myall's, he2 might have made changes later?3 A Most all notes get -- made changes. So4 I'm assuming that this one probably had a couple of5 changes as well.6 Q So are you comfortable that in this note7 some of the language is not yours, it would be Dr.8 Myall's?9 A I'm comfortable in saying that there were

10 probably some corrections made.11 Q It says, "Care was taken..." Is that the12 type of language that you would use, "care was13 taken"?14 A Yeah.15 Q All right. "Care was taken to visualize16 the mental nerve and protect it during the17 procedure." Do you see that?18 A Yeah.19 Q Okay. Who was the person that took care20 to do that?21 A That would be me, and then Dr. Johnson22 after that.23 Q We'll get into Dr. Johnson in just a24 moment.25 A Okay.

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1 Q "Buccal bone was removed with a round2 bur." Is that something you did?3 A Yes.4 Q "The tooth K was then further exposed and5 sectioned with a rotary instrument." Did you do6 that?7 A In part, yes.8 Q "The tooth was elevated and extracted in9 fragments." Did you do that?

10 A Part of that, yes.11 Q "The remaining tooth elements were12 drilled away with a round bur." Did you do that?13 A That was Dr. Johnson.14 Q "The follicle was removed with a curet."15 Did you do that?16 A That was -- yes, that was me.17 Q Okay. "The surgical site was thoroughly18 irrigated and the flap was re-approximated with 3.019 chromic gut sutures."20 A Yep. Irrigation was done by the two of21 us, and the flap was re-approximated by myself.22 Q Re-approximated in my terms would be23 sewed up?24 A Put back together, yes.25 Q Put back together, stitched back up.



30 (Pages 114 to 117)

Page 114

1 A Okay.2 Q All right. Who else was in the room3 besides you when you started this procedure?4 A When I started this procedure, it would5 have been me, Ms. Schmidt and an assistant.6 Q Nurse Patty?7 A I don't know exactly who the assistant8 was.9 Q Was there anyone else in the room besides

10 you, Ms. Schmidt and the assistant?11 A At the beginning of the procedure?12 Q Yes.13 A Possibly, but I'm not sure.14 Q Was there a male in the room at the15 beginning of the procedure?16 A Besides myself?17 Q Besides yourself.18 A I don't know, possibly.19 Q Was there another student in the room20 besides yourself?21 A We have students rotate with us22 frequently, so, yeah, it's possible.23 Q Okay. You say in this note that, "The24 team paused to identify the patient." Who is on the25 team?

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1 A Who was on the team would be me, the2 assistant and Ms. Schmidt.3 Q Well, Ms. Schmidt is the patient. I'm4 talking about the team.5 A Yeah, so it would be me and the6 assistant.7 Q Why did you not put the assistant's name8 in the chart?9 A I guess -- there's no particular reason

10 why I didn't put it in the chart, but I usually11 don't include the assistant's name in the note.12 Q Is there anything in this chart note that13 indicates Dr. Myall was ever in the room?14 A Are you asking me if he was ever in the15 room --16 Q No.17 A -- or if the record shows that he was18 ever in the room?19 Q Is there anything in your chart note that20 mentions that Dr. Myall ever came in or out of the21 room?22 A No.23 Q How long did this procedure last?24 A From the point when Ms. Schmidt came to25 the clinic or the point when we started?

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1 Q How long did the procedure last from the2 time you said, "Open your mouth, I'm going to3 operate," until the time you sent her home?4 A I would say about an hour.5 Q All right. What time did Dr. Johnson6 come in?7 A Probably about 30 to 40 minutes after the8 beginning.9 Q Up to that point in time, what had you

10 done?11 A I'd anesthetized the patient, and I12 elevated a flap.13 Q Tell the jury what that means.14 A Elevating a flap? Yeah. So I15 anesthetized Ms. Schmidt. I made sure that there16 was adequate anesthesia. At that point I made an17 incision around the crevice of the teeth and18 elevated the gums away from the bone.19 Q In layman's terms, would that be you20 pulled the skin away from the bone?21 A Yes.22 Q Okay.23 A And at that point I evaluated how -- the24 size of the flap and identified the mental nerve.25 Q Okay.

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1 A Go ahead.2 Q Was the mental nerve sitting right there,3 you could see it?4 A Well, you could see the edge of the5 mental foramen, and at that point I dissected around6 the mental nerve.7 Q With a knife?8 A No, with a blunt instrument --9 Q With a --

10 A No, with a blunt instrument.11 Q Okay.12 A It would have been an elevator.13 Q Go ahead.14 A Probably a periosteal elevator was the15 instrument I used.16 Q Okay. Continue with everything you did17 before Dr. Johnson came in.18 A Okay. So at that point the nerve was19 visible. I remember Dr. Myall coming in, inspecting20 the flap --21 Q Let's stop there. Why did you not chart22 Dr. Myall came in and inspected the flap?23 A There's no reason why I didn't chart24 that.25 Q Okay. How long was Dr. Myall in the room



31 (Pages 118 to 121)

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1 from the time he walked in until the time he walked2 out when he inspected the flap?3 A It's hard for me to tell. I mean, I know4 he was in the room to look at the flap, but I don't5 see him walk out because my focus is on the surgical6 site. So I don't know how long he was physically in7 the room.8 Q Do you have any estimation? Was it less9 than an hour?

10 A Yeah, it must have been less than an11 hour.12 Q What I'm trying to get at is: Dr. Myall13 was not present for the entire procedure, was he?14 A Define "present" as?15 Q Being in the room, being in the surgical16 suite, doing the surgery, being present. I mean,17 I'll ask you this same question with a jury. Being18 present means being there.19 A In the room?20 Q Yes.21 A Yes. He was not there for the entirety22 in the room.23 Q All right. Approximately how long was24 Dr. Myall in that room during the entire hour coming25 and going, all up?

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1 A I remember three instances where I know2 he was in the room, but it's impossible for me to3 tell how long he was in there because I don't have4 visualization of the whole room.5 Q Okay. The first time he inspected the6 flap and then he left?7 A He inspected a flap and agreed that I8 should proceed with exposing the tooth.9 Q What did you then do before Dr. Johnson

10 came in?11 A I removed the buccal bone with a round12 bur, until I had most of the crown exposed. At that13 point I switched to a different type of a bur,14 sectioned the tooth once vertically. I elevated the15 tooth, and only a fraction of the tooth came loose16 and that was removed. I sectioned the tooth a17 second time with the same type of a bur18 horizontally, elevated it again. Again, only a19 fraction of the tooth came loose. At that point is20 when I asked the assistant to call for or get Dr.21 Myall or Dr. Johnson.22 Q Why is that?23 A It's because we agreed when we were24 discussing her treatment, we made a plan that had a25 step wise approach, and there's expectations about

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1 the speed at which each step will be approached, and2 I was slowing down in making progress, and that's3 the reason why I asked to have either a senior4 resident or an attending take a look.5 Q Was there a hurry to get it done?6 A No.7 Q So if you were going slower than you8 would have liked, why did you need anybody else to9 help you if you were confident to do the entire

10 procedure by yourself?11 A We are trying to ask for help when we12 slow down and don't make progress as we would like.13 Q Well, what does speed have to do with it?14 A It just has to do with the fact that the15 plan was to section the tooth, and then elevate it,16 and have it come out in at least two, three pieces;17 and at that time it just broke into more pieces than18 expected, and so it slowed down the progress, which19 triggered me to have another attending or senior20 resident take a look.21 Q So this was the plan all along, to have22 Dr. Johnson come in?23 A The plan is to have -- to do the24 procedure as we discussed, knowing that if something25 slows down, or there's a point at which I might need

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1 some assistance, that I have an attending or senior2 surgeon that is there to assist me.3 Q And who did you send out of the room to4 go get someone else?5 A Whoever was the assistant at the time.6 Again, I don't know who that was.7 Q Okay. And who did they get?8 A I believe Dr. Myall came in first.9 Q Okay.

10 A And he looked at the site and --11 Q What did he say?12 A He said -- I don't remember what he said13 in detail. I know that he then went or -- he went14 or Dr. Johnson came in at the same time.15 Q Do you remember Dr. Myall's saying to16 you, looking at you and saying, "Now it's not17 everything to be a doctor, is it"?18 A No, I don't recall that.19 Q You said that you took extra care to20 protect the mental nerve. How did you do that?21 A By "extra care" is after I visualize the22 mental nerve, I made a conscious effort to always23 have an instrument between the operating site and24 the mental nerve itself.25 Q And why did you do that?



32 (Pages 122 to 125)

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1 A In order to protect the mental nerve from2 damage.3 Q And who trained you to do that?4 A I would say all the attendings trained me5 to do that.6 Q Okay. Does the mental nerve have more7 than one branch?8 A The mental nerve does have more than one9 branch.

10 Q Okay. Where were you positioned in11 relationship to the head of Ms. Schmidt when you12 started the surgery?13 A I did the injection from the right side.14 Q Her right side?15 A Her right side, patient's right side.16 And then after anesthesia was achieved, I switched17 over to the left side.18 Q Okay.19 A And most of the time that I was in the20 operation, I was on the left side until Dr. Johnson21 came and performed the rest of the procedure --22 Q Okay.23 A -- then I switched to the right side.24 Q When Dr. Johnson came in the room -- let25 me go back. When Dr. Myall came in the room, what

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1 did you say to him?2 A I don't remember details of the3 conversation that we had, but I told him that I had4 removed a buccal bone, and I had sectioned the tooth5 twice, and I don't seem to be making progress.6 Q What do you mean by "not making7 progress"?8 A Meaning that I've tried the two steps9 that we discussed; as a first step, to try to remove

10 the tooth. And those were only partially11 successful, so I was asking for advice.12 Q If you had chosen to do so, could you13 have stopped the procedure at that point in time and14 closed the wound?15 A That is always an option, I suppose.16 Q Did you consider that option rather than17 continuing to take the rest of the tooth out?18 A It might have crossed my mind, yes, but19 there was -- at that point we had removed less than20 two-thirds of the crown, so it wouldn't -- it21 probably wouldn't have been -- it wouldn't have been22 a logical point to stop the operation.23 Q So when Dr. Johnson came in, you had24 removed less than two-thirds of the crown?25 A Yes, or about two-thirds.

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1 Q What did Dr. Myall suggest when he was2 there?3 A Well, Dr. Myall sent in Dr. Johnson to4 evaluate the situation as well. He did not make a5 direct suggestion to me.6 Q So did Dr. Myall send for Dr. Johnson?7 A I don't know if he sent for Dr. Johnson8 or Dr. Johnson came in independently. I don't know9 how that -- how he came in.

10 Q But he came in nevertheless. What11 happened next?12 A Dr. Johnson looked at the surgical site,13 and I explained to him what I had done so far; and14 he decided that he would scrub in to the case.15 Q Okay. And Dr. Myall was not scrubbed in?16 A Dr. Myall was not scrubbed in, that's17 correct.18 Q Do you have any recollection of Dr.19 Johnson asking you where was the pano? "Where is20 your pano?"21 A No.22 Q Could he have asked you that that you23 don't recall or he didn't?24 A He certainly could have asked, but he was25 aware of the imaging that we did have because it was

Page 125

1 posted in the room.2 Q Did he go over to the imaging? What I'm3 trying to get at is: Did he go over to the imaging4 that was posted and say where is the pano?5 A I don't know if he went over the imaging6 or not. I was focusing on the patient.7 Q Did Dr. Myall ever ask you, "Where is the8 pano"?9 A At --

10 Q At any time.11 A At any time. Well, we discussed the12 imaging during the part where I presented the case,13 and we decided that we had adequate imaging at the14 time.15 Q Was Dr. Myall ever at any time, right up16 until the time Priscilla Schmidt was discharged from17 OHSU in April of that year, critical of you for not18 securing adequate films?19 A No.20 Q Was Dr. Johnson ever critical of you for21 not securing adequate films at any time?22 A No. Again, for this specific case?23 Q In this specific case.24 A No.25 Q What did Dr. Johnson then do?



33 (Pages 126 to 129)

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1 A Dr. Johnson switched back to the round2 bur and continued to remove the rest of the crown,3 including the roots of the tooth.4 Q I don't understand why you didn't5 continue the surgery.6 A Because I wasn't making the progress we7 were expecting.8 Q But weren't you just as skilled at doing9 this as Dr. Johnson?

10 A Dr. Johnson certainly has more surgical11 experience than I do.12 Q Okay. So did you believe, in your own13 mind, that you were capable, based upon your skill,14 training and experience, of completing that surgery15 safely on this patient?16 A I think it would have been possible, but17 as a trainee I have the luxury of relying -- or18 asking for help when I feel I don't make steady19 progress.20 Q So when you say you think it would be21 possible, are you telling me it was unlikely that22 you could have continued the surgery safely?23 A No.24 MR. WISWALL: Object to the form.25 THE WITNESS: No, what I'm saying is I

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1 probably wouldn't have -- couldn't have done it2 as quickly as Dr. Johnson.3 BY MR. HUEGLI:4 Q So, Dr. Johnson finished the surgery for5 you?6 A Yes.7 Q Do you remember Dr. Johnson at any time8 ever offering you to complete the surgery yourself9 and you refusing to complete it?

10 A No. I mean, up to the point where we had11 the entire tooth removed, we irrigated, at that12 point I closed the surgical site, so if you mean13 that by "completion of the surgery."14 Q Ms. Schmidt tells us that Dr. Johnson was15 in the room with you and offered the tools back to16 you to complete the surgery, and you backed away and17 refused, and that's why he completed the surgery.18 Is that true?19 MR. WISWALL: Object to the form.20 THE WITNESS: It's possible. I don't21 recall that, but it wouldn't be unusual.22 BY MR. HUEGLI:23 Q Are you familiar with the charting24 requirements at OHSU?25 A Only in as far as it requires our

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1 documentation as a resident.2 Q Okay. Does it require that you are to3 put in your operating note all the individuals, the4 names of all the individuals who operated on5 patients at OHSU?6 A Yes.7 Q And Dr. Johnson is completely absent from8 this note, is he not?9 A Yes.

10 Q Please tell me why.11 A I don't have a reason for why it's not,12 but probably should have documented that he was13 part.14 Q Is it possible you might have put his15 name in this note and accurately recorded his name16 in this note, and somebody at a later date removed17 his name? Is that possible?18 A It's possible, but I -- yeah, it's19 possible.20 Q Have you ever heard the term "indirect21 supervision"?22 A Yes.23 Q Is Dr. Myall what is known at the medical24 school as an indirect supervisor?25 A I don't -- I don't know it as being used

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1 as a person -- to describe a person.2 Q Let me ask you this question. What do3 you mean by indirect supervision?4 A So, there is strict definitions of direct5 and indirect supervision by OHSU and the Oregon6 Dental Boards. Those would be the ones that I'd7 refer to.8 Q Please do. Tell me what they are.9 A I don't know -- and I can't recall them

10 in detail, but under -- in the Oregon -- my belief11 is that in the Oregon Dental Association, "direct12 supervision" is the provider is in the clinic, in13 the same building. That would be considered direct14 supervision.15 Indirect supervision in the sense of, for16 instance, a hygienist performing a hygiene17 procedure, the dentist would know about it, but does18 not necessarily need to be in the room -- in the19 room or in the building. That would be indirect20 supervision.21 Q So if Dr. Myall would testify that he was22 supervising you as an indirect supervisor, would23 simply being in the building be sufficient to be an24 indirect supervisor?25 MR. WISWALL: Object to the form.



34 (Pages 130 to 133)

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1 MR. SILVER: Object to form.2 THE WITNESS: I don't know that. I'm not3 an attending, and I don't know what that --4 where that starts and ends.5 BY MR. HUEGLI:6 Q Are you uncomfortable here today, having7 to testify with your teacher being right across the8 table from you?9 A No.

10 Q Does he still work at OHSU?11 A I believe so, yes.12 Q Do you know whether he's going to be13 continuing to work at OHSU in the future? Have you14 heard one way or the other?15 A I've heard nothing official.16 Q How about unofficial?17 A I've heard that he was going to cut back18 to part-time.19 Q And do you know when?20 A No.21 Q Do you know why he was chairman of the22 department, and then no longer chairman of the23 department sometime ago?24 A No.25 Q Have you heard any rumors about it?

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1 A No.2 Q No idea?3 A No, I don't know.4 Q Is he still your supervisor?5 A Yes.6 Q Let's go to the next page of your notes,7 if you would. There should be a page that has Dr.8 Myall on it. There you go.9 A This one here?

10 Q Yeah. Do you see those two pages? Right11 above, a page back, go back one page.12 A That's an empty page.13 Q At the bottom of that page -- actually14 the next one. At the bottom of that right there, it15 shows progress notes signed by Robert Myall. Do you16 see that, it's 3/12/12 at 1353?17 A No. Can you show that to me, that would18 be helpful. I think I was slightly out of sync.19 Q I think that might not have photocopied.20 Let me show you my copy. There you go. It's at the21 bottom of this page. I've highlighted it in yellow.22 A Okay.23 Q Do you see where it says "Progress Note"24 signed by Dr. Myall?25 A Yes.

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1 Q Can you read for me the date and time2 please.3 A It says 3/12/12, 1352.4 Q And that's approximately three weeks5 after the surgery?6 A Probably, yeah.7 Q Let's go to the next page, please.8 A Okay.9 Q It shows 3/12/12 at 1353. Do you see

10 that?11 A The updated?12 Q Uh-huh.13 A Sorry. I don't think we're looking at14 the same thing.15 MR. SILVER: It's a Bates stamp you're16 looking at?17 BY MR. HUEGLI:18 Q Up at the top here it says updated19 3/12/12 --20 A That's what you are referring to?21 Q Right. It's 1:53 p.m.22 A Yes.23 Q Okay. And the last editor is Dr. Myall?24 A Yeah.25 Q Okay. And the next document, and it

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1 states -- could you read for us what that states?2 MR. SILVER: What Bates number is that?3 MR. HUEGLI: 40. I apologize, Paul.4 Some of these had Bates numbers and some of5 them didn't. We got them at different times.6 THE WITNESS: Okay. The "I saw" part is7 what you want me to read?8 BY MR. HUEGLI:9 Q It says "I saw."

10 A "I saw and evaluated the patient. I11 agree with the findings and the plan of care as12 documented in the resident's note."13 Q Okay. And let's go down to the next14 note. And that's signed by Dr. Myall?15 A Yes.16 Q And the next note is signed by Dr. Myall.17 It's March 12th, 2012 at 1351. Do you see that one?18 A Created at 1351?19 Q Yes.20 A Yeah. Mine says 1:51, but, yeah, that21 same part. Yeah.22 Q Yours says 1:51?23 A Mine says 1:51.24 Q Do you know why these notes -- you and I25 have different notes? I don't know --



35 (Pages 134 to 137)

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1 MR. WISWALL: The 1:51 is on -- well, you2 have got that too, as PS120015.3 MR. HUEGLI: Yeah. They are different.4 For some reason they are different notes. I5 don't know if they have different times.6 MR. WISWALL: Well, the time is the same,7 just one is in military time and one is not.8 MR. HUEGLI: Right.9 MR. WISWALL: I don't know whether it's a

10 function of you can have it display either way,11 and it's a function of when somebody hits print12 and they want a record. That's my guess.13 BY MR. HUEGLI:14 Q Could you print either military time or15 regular time?16 A I cannot select that.17 Q Who can, Dr. Myall?18 A No, I don't think anybody can select the19 time. I think it's an Epic feature to display it20 one way or another, but I don't know.21 Q The next one is, Dr. Myall states, "I was22 present for the entire procedure as described in the23 above note for this encounter." Do you see that?24 A Yes.25 Q Okay. And that one is also 1351 on

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1 March 12th. Do you see that?2 A Yes.3 Q 1:51?4 A Yes.5 Q And it shows filed at 1353 on March 12th.6 A I don't know if the file is updated --7 yeah, I can see that on yours. I don't see that8 here, but, yeah, I see that on yours.9 Q Dr. Kupfer, is that time filed 1353 on

10 March 12th the exact time to the minute that your11 progress note was filed March 12th?12 A I don't know that. Again, it looks that13 those two times are the same. So I don't know14 when -- I don't have -- I don't file the note.15 Q Dr. Myall does?16 A I assume so. The only timestamp that I17 have any input on is the 6:04. So I don't know when18 or how that time gets there.19 Q All right. Is the only person that could20 have filed that and signed Dr. Myall's name on21 1353 -- on March 12th, 2012, at 1353, Dr. Robert22 Myall, to the best of your knowledge?23 A I believe so, but that is an access to24 Epic question then I cannot answer.25 Q Do you have access to Dr. Myall's

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1 computer and his passwords, and things of that2 nature?3 A No.4 Q Does he have access to yours?5 A No.6 Q But he can get into yours?7 A He can get into my computer?8 Q No, into your progress note.9 A Yeah. He can review and alter the

10 progress note before he signs it.11 Q And after he closes it out, can you get12 back into it and review it and change it yourself13 once it's closed?14 A Once it's closed, I have to create an15 addendum or ask to have it reopened before I could16 make any changes.17 Q Okay. When was the next time you saw or18 talked to Priscilla Schmidt for any reason, if you19 can recall?20 A The one that I can recall is that she21 called our office about a week later.22 Q Okay.23 A And she called once in the morning and24 once in the afternoon, and I returned her call in25 the afternoon.

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1 Q What did she describe to you and what was2 said?3 A Ms. Schmidt described that she was4 starting to -- she had some persistent swelling in5 the area, and that she had some pain and discomfort6 that is less than it was right after the operation,7 but it's not completely gone.8 Q Okay. And that was -- I think that note9 is in there as well. I'll hand that to you. It

10 looks like it's the 28th of February.11 A Yes, yep.12 Q All right.13 A Yeah.14 Q And what concerns did she express?15 A Well, as documented, she expressed that16 she had some swelling and a feeling like there was17 like someone shoved some cotton into the surgical18 site.19 Q Okay. Did that surprise you?20 A No.21 Q We're now five days post-op.22 A I asked questions about the description23 of what she means by having cotton in her mouth; and24 I asked her about her pain and her swelling, and it25 appeared to be consistent with the operation that



36 (Pages 138 to 141)

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1 was done.2 Q What do you mean "consistent"?3 A It means we expect a certain decrease in4 swelling and decrease in pain, based on how5 elaborate the operation was. And at that point it6 seemed like it was still within the range of normal7 for post-op operative discomfort, and she was8 offered a follow-up appointment the next day.9 Q Okay. What follow-up -- postsurgical

10 follow-up appointment did you schedule for her when11 she left the office on February 23rd?12 A We did not schedule a post-op follow-up13 appointment.14 Q Why not?15 A Because she was -- we were giving her the16 opportunity to come back at any time if she notices17 that things -- that she's not progressing or healing18 as expected.19 Q Is that what you ordinarily do at OHSU,20 you just say, "If it's not going well, come back,21 otherwise you're discharged after a surgery"?22 A After a tooth extraction, yes.23 Q What about a complex surgical extraction24 of ankylosed tooth Ks, are they all handled the25 same?

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1 A It's usually at the discretion of the2 attending surgeon and --3 Q And that's you?4 A No, I'm not the attending surgeon.5 Q Who is the attending surgeon?6 A The attending surgeon is Dr. Myall and7 attendant -- attending.8 Q Why did Dr. Myall not schedule a post-op9 follow up for her when you had a complex surgical

10 extraction of an ankylosed tooth K that you have11 already indicated is a very unusual procedure at12 OHSU?13 MR. SILVER: Object to the form.14 MR. WISWALL: Object to the form.15 THE WITNESS: So there was kind of two16 questions in there. The one question is: Why17 did Dr. Myall not schedule a follow up? And I18 don't know the answer to that. That would be a19 question you would have to ask Dr. Myall.20 BY MR. HUEGLI:21 Q Have you ever asked him that question:22 Why didn't you schedule a follow up for this lady?23 A I did not. And the second part to your24 question was -- indicated that it was an unusual25 operation for OHSU?

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1 Q For you.2 A For me?3 Q A complex surgical extraction of an4 ankylosed tooth K at OHSU.5 A Specific tooth K, yes.6 Q When did you next talk to her?7 A I believe it was at -- our next8 conversation was at a follow-up appointment.9 Q Okay. I think you have got that document

10 there. Let's go to that appointment, if we could.11 It looks like it's on March 7th.12 A Yes.13 Q All right. Who was present at that14 follow-up appointment?15 A I believe it was myself. It was in Dr.16 Engelstad's clinic, so he was present, and I believe17 Dr. Johnson also was there for a brief moment.18 Q And how was Ms. Schmidt doing?19 A So she would describe that she was still20 having some discomfort, however improved from21 before. She said that she was -- has seen her PC,22 her primary care provider, who prescribed some23 antibiotics for her, and she claimed at the time24 that those had helped.25 Q Now, are you on the March 7th note?

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1 A Yes.2 Q Where it starts, "Priscilla Schmidt is a3 31-year-old female with extraction of an4 ankylosed..."?5 A Yes.6 Q And you said that her condition was7 better and improved?8 A Said that it was improved from the9 baseline.

10 Q And where is that in your note?11 A It would be in my assessment of mild12 swelling.13 Q Where is the statement that her condition14 is improved from the baseline?15 A That statement is not in there.16 Q Do you just remember that of your own17 personal recollection? Your memory is clear on18 that, "improved from the baseline"?19 A Well, I've talked to her before, and I20 see her -- I saw her at that time, and the swelling21 was mild, so --22 Q Did you chart that?23 A That her swelling was mild?24 Q Yes.25 A Yes, it's right here.



37 (Pages 142 to 145)

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1 Q Okay. But did you chart "improved from2 the baseline"?3 A No.4 Q Did you chart that her pain is not well5 controlled?6 A Yes.7 Q Did that surprise you?8 A Yes.9 Q Why did it surprise you?

10 A Because she was on pain medicines, and11 it's unusual at that far out to not have well12 controlled pain.13 Q What kind of medication was she taking?14 A I'd have to go back to the record to see.15 Q Was she taking narcotics?16 A I believe so.17 Q And did you discuss with her the fact18 that her pain was not well controlled?19 A Yes.20 Q What did you tell her?21 A I don't remember all the details, but I22 do remember asking her about the pain, asking her to23 describe the pain to me.24 Q What did she say?25 A She described that the pain medicine is

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1 not doing it's-- that the pain medicine seems not to2 be working as well as she was hoping.3 Q Did you chart that?4 A No.5 Q But you remember that independently of6 March 7th, 2012?7 A I believe so.8 Q Please continue.9 A So continue with what?

10 Q With what she said.11 A She said that she had seen her primary12 care physician who provided her some penicillin, and13 that she was feeling better that day.14 Q Feeling better than when?15 A Feeling better than when -- prior, when16 she got the penicillin.17 Q Okay. And did you chart that that she18 was feeling better than before she got the19 penicillin?20 A Said, "The patient was prescribed21 penicillin by her PCP and is feeling much better22 today."23 Q And did she have an infection?24 A It wasn't possible for me to tell at the25 time.

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1 Q Okay. What did you recommend for her?2 A I recommended for her to use an3 antibiotic mouth rinse and try different pain4 management, and come back for a follow up in one5 week with Dr. Myall.6 Q Why did you not take films?7 A Because of that -- I don't know the8 answer. I don't know why we didn't take films.9 Q Do you think a cone beam CT would have

10 been helpful to you in diagnosing problems that she11 might have had?12 A At the time, no.13 Q Okay. Did you see her again?14 A I saw her again one more time for a15 follow up.16 Q And when was that, please?17 A I think that was -- must have been a week18 or two later in Dr. Myall's clinic.19 Q I have a note of March 23rd.20 A That sounds accurate.21 Q Okay. Do you see that note?22 A Yes.23 Q And that note is dated March 23rd at24 1404.25 A Yes.

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1 Q Do you see that time and day? And it2 shows the note time, March 23rd, 2012, at 1313. Do3 you see that?4 A Yes.5 Q Excuse me, March 20th at 1313 is when you6 saw her?7 A Okay.8 Q At least that's when the note says.9 A Yeah, that's when the note was written.

10 Q And the date of the appointment, up on11 the top right-hand corner, is March 20th, 2012. Do12 you see that?13 A Yeah.14 Q Okay. Is that the date you saw her?15 A I believe so, yes.16 Q And then it shows filed March 23rd, 2012,17 at 1404. Do you see that?18 A Yep.19 Q Did you have any input on that at all?20 A I don't recall. I don't think so.21 Q You can't make -- somebody else makes22 that entry, as I understand?23 A Yeah, I don't put in the dates for like24 an update or a review or something like that.25 Q Now, what I'd like you to do is go to the



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1 next page.2 A Okay.3 Q It has Dr. Myall's signature on it. Do4 you see that page?5 A This one. It has mine, too, yeah. This6 one.7 Q And it has a note date of March 23rd,8 2012 at 1403. Do you see that?9 A 1403 created, yeah.

10 Q Uh-huh.11 A Uh-huh.12 Q And it has filed date of March 23rd,13 1404 --14 A Yeah.15 Q -- one minute later. Okay?16 A Yep.17 Q Let's switch back to the page before.18 A Yes.19 Q The file date on your note is March 23rd,20 2012, exactly at 1404. Do you see that?21 A Yep.22 Q Did you have any input on that time at23 all?24 A I don't have input on the time. I mean,25 it's possible that I made -- like I described

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1 earlier, an attending reviews the note, and then2 either sends it back to the resident to make3 changes, or he makes changes himself and then files4 the note.5 Q All right. And does this indicate to you6 if the minute -- can you explain to me exactly why7 the minute yours is filed, to the exact minute on8 the same day, four days later Dr. Myall's is filed?9 MR. WISWALL: I'm not sure you mean his

10 is filed. You mean this note is filed?11 MR. HUEGLI: Yes, this note.12 BY MR. HUEGLI:13 Q Can you explain to me why it's exactly14 the same date, the same minute on March 23rd as Dr.15 Myall's?16 A No, I don't know.17 Q All right. Is it possible that some of18 the information that's contained in this note of19 yours, that this note that actually bears your20 signature, might have been put in here by somebody21 else, just like we discussed, in the prior notes?22 A It's possible that that note could have23 been altered afterwards and then filed, yes.24 Q Okay. So let's talk about this note. Do25 you have independent recollection of this visit,

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1 other than what's in this note?2 A I have a recollection of this visit as3 it's described in the note.4 Q Okay. It says, "Patient is feeling well5 with mild pain and persistent anesthesia which is6 improving." Do you have an independent recollection7 of that?8 A Yes. That's a statement that the patient9 made at the time.

10 Q And you remember that clearly?11 A Yes.12 Q Can you remember the names or the visits13 of any patient either the day before or the day14 after or what they said?15 A The exact detail?16 Q Yes.17 A No.18 Q Or any detail of anybody that you saw the19 day before, on March 19th, of what they told you?20 A Not without the chart record.21 Q Let's go to the CNB3. Do you see that22 there?23 A Yep.24 Q Light touch, it says "full sensation."25 Do you see that?

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1 A Uh-huh.2 Q Would full -- in your opinion, in March3 of 2012, would full sensation to light touch be4 consistent with a mental nerve injury?5 A No, it would not.6 Q "Coarse touch, full sensation," would7 that be consistent with a mental nerve injury?8 A No, it would not.9 Q "Pain. No dysesthesia, but patient has

10 limited sensation or anesthesia." Would that be11 consistent with a mental nerve injury?12 A Limited -- so no dysesthesia. It's13 possible to not have dysesthesia but to have a14 mental nerve injury, limited sensation would be15 possible.16 Q Is it more likely, in your opinion, in17 2012, that a permanent mental nerve injury would18 cause dysesthesia as opposed to anesthesia or do you19 know?20 A Sorry. Does a permanent -- the question21 is, does a permanent nerve injury --22 Q Mental nerve.23 A -- mental nerve injury, is it more likely24 to cause dysesthesia than anesthesia?25 Q Yes.



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1 A That depends on the individual and an2 individual case. Some patients experience3 anesthesia, others experience dysesthesia.4 Q "Two-point discrimination, proprioception5 down to 2 millimeters." Is that consistent or6 inconsistent with a mental nerve injury?7 A That's pretty close to normal.8 Q So it's inconsistent with a permanent9 mental nerve injury?

10 A Yes.11 Q "Temperature slightly decreased." That's12 fairly normal, isn't it?13 A Normal for what?14 Q I don't know. "Temperature slightly15 decreased" doesn't have anything to do with a mental16 nerve injury, does it?17 A Yes, you can have decreased temperature18 sensation with a mental nerve injury.19 Q Does that say temperature sensation or20 just her temperature?21 A Well, it's a temperature test.22 Q Okay. What is Tinel sign?23 A Tinel sign?24 Q Uh-huh.25 A It's when you put your finger onto the

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1 foramen and you see if it elicits pain.2 Q Okay. And this didn't?3 A No.4 Q And is that consistent or inconsistent5 with a mental nerve injury?6 A That is -- some patients have it and7 others don't. Again, it's not a definitive test.8 Q In summary, are all these findings that9 you have listed here mostly inconsistent with a

10 mental nerve injury?11 A These findings are mostly consistent with12 a temporary nerve injury, not a permanent nerve13 injury.14 Q Okay. Let's go back over them one at a15 time. Light touch, full sensation --16 A Yep.17 Q -- is that consistent with any nerve18 injury, temporary, permanent or partial?19 A At that time?20 Q Yes.21 A No, she wouldn't have had -- an exam of22 full sensation to light touch usually indicates no23 nerve injury.24 Q Right. Coarse touch, full sensation,25 that's no nerve injury, correct?

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1 A Yes.2 Q Two-point -- or pain, has limited3 sensation. That could be a nerve injury, temporary?4 A Temporary or permanent, yeah.5 Q Two-point discrimination down to6 2-millimeter.7 A That would be pretty normal.8 Q Pretty normal. No temporary, no9 permanent, just pretty normal?

10 A Again, even with -- we test all six of11 these because those are the six things that can go12 wrong. Not every patient who has an injury or a13 permanent or temporary nerve injury has all of these14 signs.15 Q Tinel sign none?16 A Yes.17 Q It says, "Female patient healing well18 post extraction with persistent but improving19 anesthesia." Do you see that?20 A Yeah.21 Q Okay. Was that your conclusion?22 A That was the conclusion based on the23 exam.24 Q Do you have a clear recollection of this25 specific exam, and doing all of those specific

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1 tests, March 20th --2 A Yes.3 Q -- 2012?4 A I do.5 Q And do you have a clear recollection,6 independent of this note, that she had full7 sensation to light touch?8 A Yeah, I do, because this was an -- in Dr.9 Myall's clinic, we don't see -- we don't do this

10 type of exam all the time, so it was unusual for me11 to do this exam in his clinic on that day.12 Q Why?13 A Why? Just because most of these exams14 are done -- were done in Leon Assael's clinic, who15 sees a large population of patients with nerve16 damage.17 Q These exams are done because doctors are18 concerned -- let me ask you this question: Did Dr.19 Myall have you do this exam because he was concerned20 that the mental nerve of Priscilla Schmidt had been21 injured during the surgery?22 MR. SILVER: Object to the form.23 THE WITNESS: No. The exam was done as24 an evaluation -- as a more objective evaluation25 of her stated complaint.



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1 BY MR. HUEGLI:2 Q Okay. Did you believe on March 20th,3 2012, that Priscilla Schmidt had had injury to her4 mental nerve?5 A I believed that she had temporary nerve6 injury.7 Q Didn't ask you that question.8 A Okay.9 MR. WISWALL: Well, wait a second. How

10 is that not answering the question --11 MR. HUEGLI: I asked him about the mental12 nerve.13 MR. WISWALL: You asked him, did he think14 she had an injury to the mental nerve, he said,15 "I believe she had a temporary injury to the16 mental nerve."17 MR. HUEGLI: He did not say that. Read18 it back.19 (The reporter read back the20 previous question and answer.)21 MR. WISWALL: How is that not answering22 the question?23 MR. HUEGLI: It did not. I asked him24 about the mental nerve, not a temporary nerve25 injury of any kind. I want to know about a

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1 mental nerve.2 MR. WISWALL: Okay. Do you think he was3 referring to a different nerve?4 MR. HUEGLI: I have no idea.5 BY MR. HUEGLI:6 Q So, did you believe on March 20th, 2012,7 that Priscilla Schmidt had some type of injury to8 her mental nerve as a result of your surgical9 procedure?

10 MR. WISWALL: Asked and answered.11 THE WITNESS: Yes.12 BY MR. HUEGLI:13 Q Do you know how that happened?14 A There's no exact way of knowing how that15 happened, but the most likely scenario seemed to be16 that she had temporary nerve injury from stretching17 the nerve.18 Q Did you tell her that?19 A That was our belief, yes.20 Q Is that the last time you saw her?21 A That was the last encounter that I had22 with her.23 Q After you saw her, and after she left the24 room, did you and Dr. Myall discuss your findings?25 A I would have discussed my findings of the

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1 exam with him before she left the room.2 Q After she left the room, did you and Dr.3 Myall talk about Priscilla Schmidt, out of her4 presence?5 A I don't recall. I don't know, but I6 believe so, but I don't recall any details.7 Q Between March 20th and the end of April8 of 2012, did you and Dr. Myall discuss Priscilla9 Schmidt's case in any way?

10 A The only part that I can remember is that11 Dr. Myall recommended that she be seen by Dr.12 Assael.13 Q Did he tell you why?14 A For further evaluation.15 Q Did he tell you why?16 A To evaluate her complaint, that was the17 reason why.18 Q Did he tell you that he was concerned19 that she had a permanent mental nerve injury?20 A I do not recall him saying that.21 Q Did he discuss with you the fact that he22 was making the referral regarding her mental nerve?23 A I don't recall that either.24 Q Did he tell you why he was making the25 referral other than "I'm sending her over to Dr.

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1 Assael about her complaints"?2 A That is the part that I remember, yes.3 Q We know that OHSU is a teaching4 institution, correct?5 A Yes.6 Q And you were one of Dr. Myall's students,7 correct?8 A I'm one of his residents, yes.9 Q And would it seem unusual to you, when

10 you have a surgical extraction of an ankylosed tooth11 K, and you have this event occurring that we've just12 gone through for the last several hours, that Dr.13 Myall would not sit down and discuss with you what14 happened during the surgery and how a mental nerve15 might be injured, as a teaching tool?16 MR. SILVER: Object to the form.17 MR. WISWALL: Object to the form.18 THE WITNESS: You mean, at what point?19 At any point?20 BY MR. HUEGLI:21 Q At any point, from the time you saw her22 right until the end of April.23 A Yeah, it would have -- I mean, it would24 have been discussed at the time and right after she25 had the procedure.



41 (Pages 158 to 161)

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1 Q Okay. Do you remember what was2 discussed?3 A No, I don't recall the specific sit-down4 about --5 Q How about generally?6 A Generally, since he was in the room and7 saw the patient in between me and Dr. Johnson, the8 follow up would have been: Is she -- how is she9 doing? Did she get her post-op instructions? Is

10 the flap closed? That would have been the sort of11 discussion about the operation.12 Q So, what I'm trying to get at is, was13 there any teaching or discussion with Dr. Myall14 after the surgery about the mental nerve: "How did15 you protect it? What did you do? It looks like we16 may have a mental nerve injury on our hands, let's17 talk about how that can be prevented." Was there18 anything like that discussed with Dr. Myall at any19 time?20 MR. WISWALL: Object to the form.21 THE WITNESS: I mean, he saw and he asked22 if we protected the nerve; is that the23 question?24 BY MR. HUEGLI:25 Q No. Did you have any teaching

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1 discussions with Dr. Myall at any time after2 Priscilla Schmidt's surgery about an injury to the3 mental nerve that might have happened to her while4 you were operating on her?5 A We did review that panoramic X-ray6 together at the time it was taken.7 Q Tell me what you did when you reviewed8 that X-ray and what was discussed.9 A We looked at the surgical site, and it

10 was discussed whether or not we see any tooth11 fragments remaining or foreign body remaining, and12 if we see any sign on this two-dimensional film that13 could explain Ms. Schmidt's symptoms.14 Q When you looked at the pano, did it15 appear to you that the grinding that you or Dr.16 Johnson did on Priscilla Schmidt went into the17 mental foramen?18 A No.19 Q Are you comfortable, as you sit here20 today, that that never happened?21 A As far as we could tell by looking at the22 surgical site during the procedure, and from what we23 could see on the panoramic radiograph, yes.24 Q Did you have an opinion in 2012 if a cone25 beam CT would demonstrate whether or not you went

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1 through the mental foramen with your drill?2 A No, I did not have an opinion. At the3 point where I would consider that, that would have4 been at the time when she was referred to Dr.5 Assael.6 Q You what?7 A There's -- the time at which that8 decision gets made would be at the time when she9 would have seen Dr. Assael.

10 Q Okay. Did you have an opinion in 2012 if11 a cone -- from your own experience as a doctor -- if12 a cone beam CT of that particular surgical site13 would show whether or not the mental foramen had14 been invaded by a surgical tool?15 A At the time when we took the panoramic16 X-ray?17 Q Yes.18 A No.19 Q It would not show it?20 A Sorry?21 Q It's a bad question. I know it's late.22 I'm sorry.23 A No, that's fine.24 Q Did you believe in 2012 that a plain25 film, a pano, would clearly show any injury to the

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1 mental foramen area?2 A Pan --3 Q Pano.4 A Sorry. Possibly.5 Q Did you have an opinion in 2012 if a cone6 beam CT would clearly show an injury to the mental7 foramen as opposed to a plain film pano?8 A I would have been indifferent about that9 at this time.

10 Q What do you mean by "indifferent"?11 A Meaning that I did an exam to quantify or12 try to better characterize her improvements. If13 that exam persists or gets worse, at that point it14 would be logical to consider advanced imaging.15 Q I guess I didn't phrase the question16 appropriately.17 Based upon your skill, training and18 experience in 2012 -- not Ms. Schmidt, beside the19 point -- in just a patient --20 A Okay. So just any patient?21 Q -- any patient, would a cone-beam CT22 disclose injury to the mental foramen by a surgical23 instrument that would not be disclosed by a pano?24 A That's in general?25 Q In general.



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1 A Yes, possibly.2 MR. WISWALL: Why don't we take a short3 break to stay fresh.4 MR. HUEGLI: Suppose I have five minutes.5 MR. WISWALL: I've heard that before from6 lawyers.7 (A brief recess was taken.)8 BY MR. HUEGLI:9 Q Dr. Kupfer, are you married?

10 A Yes.11 Q Dr. Kupfer, after this lawsuit was filed,12 at any time, up until the time you had a lawyer, did13 you have an occasion to talk about this case with14 Dr. Myall?15 A I would have had an occasion, but I don't16 recall discussing her outside of these visits.17 Q After the lawsuit was filed and before18 you had a lawyer, did you talk to Dr. Myall about19 Priscilla Schmidt and the facts surrounding this20 lawsuit?21 A There was only one time when we met, and22 the only thing that was told to me is that there's a23 lawsuit that is being filed, and that I should24 follow the instructions of the legal team.25 Q Other than that, did you have any

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1 discussion with Dr. Myall before you had a lawyer?2 A No.3 Q After the lawsuit -- were you served with4 a complaint personally?5 A I think -- I don't recall if it was6 served or if it was accepted through the --7 Q School?8 A No, through the law firm here.9 Q Okay. That's fine. After you found out

10 the lawsuit was filed -- what I'm trying to get at11 is, did you and Dr. Myall -- you work together12 everyday, don't you?13 A Yes.14 Q Did you and Dr. Myall ever sit down over15 a cup of coffee and say, "Wow, I've been sued. Do16 you remember this case? What happened?" Anything17 like that, any discussion whatsoever?18 A No, nothing related to this case.19 Q How about Dr. Johnson? Did you ever talk20 to him at all in any way about this lawsuit?21 A There was one email where he said --22 MR. WISWALL: Wait a second. Just so23 we're clear, if it's an email that I was part24 of, you can't talk about that or discussions25 that I was a part of. It would all be

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1 privileged as well. So if there's anything2 beyond that.3 THE WITNESS: Okay. I think there was4 one email where he asked, "What's going on?"5 And my response was, "Sorry you're involved."6 I think that was the extent.7 BY MR. HUEGLI:8 Q And do you have that email?9 A I don't have that email, but I'm sure

10 it's on the OHSU server.11 Q OHSU server?12 A (Witness nods head.)13 Q Okay. Any emails from Dr. Myall?14 A No, not that I can recall.15 Q Other than Dr. Johnson and Dr. Myall,16 have you talked with anyone else about this lawsuit?17 A My wife.18 Q Other than your wife?19 A Just some administrators and higher ups20 for scheduling purposes.21 Q Okay. Other than that?22 A Again, just other residents for23 scheduling purposes.24 Q Who is your best friend as a resident?25 A Probably Nariman Saadat.

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1 Q Have you talked to him about this lawsuit2 and what happened?3 A Only in the sense that if I needed to4 miss a day during -- in order to have a meeting, for5 him to cover my pager or organizational things like6 that.7 Q Dr. Myall puts in every one of his notes,8 I believe -- and you correct me if I'm wrong -- when9 he is involved in a procedure, "I was present for

10 the entire procedure," much like he did with you.11 Are you aware as to whether or not when Dr. Myall12 puts that in other notes for other patients, once13 again he's not in the room, but might just be in the14 building?15 MR. WISWALL: Object to the form.16 MR. SILVER: Object to the form.17 BY MR. HUEGLI:18 Q Go ahead.19 A I have seen that sentence on a note20 before and cannot comment on how often or in what21 circumstances he uses it.22 Q Has Dr. Myall been involved in other23 procedures where he has been your supervisor?24 A Yes.25 Q Approximately how many?



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1 A That's' hard to estimate, but it would be2 a quarter of the total procedures that I've done,3 maybe more, so.4 Q Okay. And do you know, of your own5 personal knowledge, whether or not in each one of6 those procedures where Dr. Myall has been your7 supervisor, he puts in the note "I was present for8 the entire procedure as described in the note for9 this encounter"?

10 A I do not know that. I do not know what11 he signs after the note -- after I submit it on a12 consistent basis.13 Q That's fair. Okay. Have you discussed14 or have you heard other residents discuss Dr. Myall15 as far as their opinion as to whether he's a good16 supervisor or not?17 A Yes.18 Q Okay. And what have you heard?19 A I've just heard -- same things I hear20 from all the other attendings that there was -- you21 know, sometimes you disagree with an approach or22 sometimes you disagree with a note or criticism to a23 note. Nothing that would strike me as out of the24 ordinary.25 Q Does Dr. Myall have a reputation at OHSU,

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1 Department of Maxillofacial Surgery, as being a poor2 supervisor?3 A I do not know that.4 Q Did you read Dr. Johnson's deposition?5 A Yes, I did.6 Q Just about done, I promise.7 A However long you need.8 Q When you stopped operating on Priscilla9 Schmidt --

10 A Yes.11 Q -- was there any injury whatsoever to the12 mental nerve?13 A Not that I could tell.14 Q When Dr. Johnson stopped operating on15 Priscilla Schmidt, was there any injury whatsoever16 that you could see to the mental nerve?17 A No.18 Q If neither you or Dr. Johnson injured19 Priscilla Schmidt's mental nerve during this20 surgery, do you have any explanation as to how that21 happened?22 A I do not.23 Q Are you aware of any other way, just from24 your own personal knowledge, as to how Priscilla25 Schmidt could sustain a permanent, irreversible,

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1 serious injury to the mental nerve other than during2 the surgical procedure done by you and Dr. Johnson?3 MR. SILVER: Object to the form.4 MR. WISWALL: Object to the form. He's5 asking for your opinions at the time that she6 was under your care.7 BY MR. HUEGLI:8 Q At the time she was under your care,9 other than the surgery, do you have any explanation

10 as to how she could have a serious, permanent,11 irreversible injury to the mental nerve other than12 being caused by either your surgery or that of Dr.13 Johnson?14 MR. SILVER: Object to the form.15 MR. WISWALL: Object to the form.16 THE WITNESS: So at the time she was in17 my care, there was no clear evidence while I18 was treating her that she had permanent nerve19 injury.20 BY MR. HUEGLI:21 Q Okay. Are you aware of any trauma while22 she was under your care, any trauma to her face at23 all, other than the surgery that was accomplished by24 you and Dr. Johnson --25 A No.

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1 Q -- in the area of the mental nerve?2 A No, I'm not aware of that, of anything3 else.4 Q Were you aware in 2012, from your own5 skill, training and experience, as to any method a6 mental nerve could be injured other than trauma?7 A Yes.8 Q How?9 A It could be a chemical injury.

10 Q Let's stop there. Was there any evidence11 she had a chemical injury?12 A No, not that I recall.13 Q Please continue.14 A The rest would be -- well, it would be15 localized trauma; it would be chemical injury; it16 could be central damage, meaning distant from the17 surgical site. Those would be the ones that come to18 mind.19 Q Did she have any of those?20 A I do not know the other ones, that's why21 she was referred to -- I'm assuming that's why she22 was referred to Dr. Assael.23 MR. HUEGLI: Thank you, Dr. Kupfer. I24 appreciate you coming today.25 THE WITNESS: Thank you.



44 (Pages 170 to 171)

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1 (Exhibit No. 2 was marked.)2 (Deposition concluded at 2:393 p.m.)456789

10111213141516171819202122232425

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1 CERTIFICATE23 I, ROBIN REGER, Certified Shorthand4 Reporter, do hereby certify that PHILIPP KUPFER,5 D.M.D. appeared at the time and place set forth6 herein; that at said time and place I reported in7 stenotype all testimony adduced and other oral8 proceedings had in the foregoing matter; that9 thereafter my notes were transcribed using

10 computer-aided transcription under my direction; and11 the foregoing transcript, Pages 1 to 170,12 constitutes a full, true and accurate record of such13 testimony adduced and oral proceedings had and of14 the whole thereof.15 Witness my hand and stamp at Portland,16 Oregon, this 25th day of July, 2013.171819 _____________________________

ROBIN REGER, RPR20 Certified Shorthand Reporter

Certificate No. 10-04162122232425

Documents

Philipp Kupfer, D.M.D. - 7/16/2013 IN THE CIRCUIT COURT OF ...media.oregonlive.com/steve-duin-impact/other/Kupfer.pdfPortland, OR 97205 12 971-266-8877 [email protected] 13 For