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O-cv-00184-GMS Document 48 Filed 03/28/13 Page 10 of 116 PagelD #: 277 137

not have legal authority I can cite to the Court on the

matter. It is the general principle that is embodied in the

rule.

THE COURT: Well, I am going to give plaintiff

the benefit of the doubt on this. I have now your letter of

January 11 and the items you have cited. Mr. Whitehurst has

made a representation that he has provided a list. You have

acknowledged receipt of a list, perhaps an incomplete list,

we don't know.

At this juncture, I am going to deny your motion

and permit the testimony, without prejudice to your ability

and your right to renew your objection at a later time.

MS. HANNIGAN: Thank you, Your Honor.

THE COURT: Anything else?

MS. HANNIGAN: No.

THE COURT: Let's get started.

MR. WHITEHURST: Call Dr. Mark Levin.

THE COURT: Now I have a response.

... MARK LEVIN, having duly affirmed to tell the

truth, was examined and testified as follows ...

THE COURT: All right, Mr. Whitehurst.

MR. WHITEHURST: Thank you, Your Honor.

DIRECT EXAMINATION

BY MR. WHITEHURST:

Q. Good morning. Doctor. You are a medical doctor. Is

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i-cv-00184-GMS Document 48 Filed 03/28/13 Page 11 of 116 PagelD #: 278 138

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that correct?

A. That1s correct.

Q. Where do you practice?

A. I have an office in Cliffside Park, New Jersey.

Q. Are you board certified in any fields?

A. I am board certified in oncology and internal

medicine.

MS. HANNIGAN: Your Honor, I apologize. Could

we ask the witness to speak up a bit? I am having a little

trouble hearing him.

THE COURT: You can slide that chair forward a

little bit.

THE WITNESS: Yes.

BY MR. WHITEHURST:

Q. Can you explain to the Court what the significance of

board certification is?

A. Board certification means that you have completed the

required training that the American board, the medical

specialties requires, and that you have also passed the

examinations and whatever are the requirements any

particular board might have,

Q, Do you understand the term reasonable degree of

medical certainty or reasonable degree of medical

probability?

A. Yes.

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Q. Will your opinions be couched in those terms unless

you tell me otherwise?

A. Yes.

Q. Now, at my request, did you review certain records for

treatment that was rendered to Elmer Campbell at the VA

Hospital in Wilmington?

A. Yes, I did.

Q. Did you make a determination as to whether in your

opinion or not there were breaches of the standard of care

regarding his treatment?

A. Yes, I have.

Q. And did you determine that as a result of those

breaches it eventually proximately caused his death?

A. Yes.

Q. Now, have you reviewed your report before you came to

court today?

A. Yes, I have.

Q. Do you recall how old Mr. Campbell was?

A. He was born in 1955.

Q. And do you remember reviewing a record from March 11th

of 1993?

A. Yes.

Q. Concerning him?

A. Yes , 1 do .

Q. And what were the recommendations based upon that

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examination that day?

A. Well, they recommended amongst other things a

colonoscopy. A colonoscopy was mentioned in the record.

Q. Why did they recommend a colonoscopy?

A. Because of rectal bleeding.

Q. And how was the rectal bleeding discovered?

A. It was an occult blood test.

Q. Occult blood?

A. Right. In other words, they tested his stool for the

blood.

Q. They used a specific test?

A. I don't know what specific test they used. But there

are a variety of chemical tests that detect the presence of

blood.

Q. What is the significance of the presence of occult

blood, Doctor?

A. It could mean a whole nvunber of different conditions

that cause bleeding. Among them, and probably the most —

one of the most concern is colon cancer, colon and rectal

cancer.

Q. And there are other causes, though, for rectal

bleeding. Correct?

A. Yes, there are.

Q. Mow, Mr. Campbell was noted to have external

hemorrhoids at that time?

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A. Yes.

Q. And did the doctor that recommended the

gastroenterology followup suggest that they should check for

internal hemorrhoids?

A. Yes.

Q. Is that one of the causes of occult bleeding?

A. Potentially, but usually not.

Q. And when you say occult bleeding, what do you mean?

A. It's blood that is not really visible to the naked

eye, but when you test the stool you find that blood is

mixed into the stool.

Q. Does the fact that it is occult bleeding have an

effect on your opinion as to whether you should consider it

to be hemorrhoidal in nature or have another source?

A. Well, occult bleeding usually comes from higher up in

the colon. So that it has time to mix in and become, in

quotes, "lost" in the stool.

So you cannot see it.

Most hemorrhoidal bleeding is bright red and is

immediately visible and it does have an effect. It suggests

that the bleeding source was higher than either external or

internal hemorrhoids.

Q, Now, did you then review his VA records for

information about a gastroenterology followup subsequent to

March 11, 1993?

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A. Yes.

Q. Do you recall the next date that he was seen?

A. I don't recall the next date. I recall that he was

seen many times over the subsequent several years.

Q. He was seen numerous times between March of 1993 and

October of 1999?

A. That's correct.

Q. And you reviewed those records?

A. Yes.

Q. He also was sort of not very good at keeping

appointments sometimes, was he not?

A. There are notes that there were some missed

appointments.

Q. And in your review of the records from March of 1993

until October of 1999, did you find any indication that any

physician in the VA had insured that a gastroenterology

followup was performed?

A. No, there is no indication that that happened.

Q. Do you consider that to be a breach of the standard of

care?

A. Yes,

Q. And why is that?

A» Well, a patient who has a positive occult blood needs

to have the cause of it established and investigated, and

cancer needs to be excluded, so that an appropriate

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treatment can be given. In the case of cancer, that would

have been a curative surgery. And one cannot leave that

alone.

Q. And what are some of the methods that are used to

determine what the cause of occult bleeding was during that

time frame, from March of 1993 through October of 1999?

A. The one that's standard now is colonoscopy.

Q. Were there other things that could have been done?

A. There are other things that could be done. A Barium

enema could be done. CEA levels could be done.

Q. What was the first one you said?

A. A Barium enema. It's an enema of Barium, and then

x-rays are taken. It's not as good. But it's an

alternative.

Q. How about a sigmoidoscopy?

A. Sigmoidoscopy is also an alternative. It doesn't go

all the way up the colon, so it will miss some colon

cancers. But it is better than nothing.

Q. And the ability to perform a colonoscopy was available

in VA hospitals in 1993?

A. Yes. Any gastroenterologist is trained to do it.

Q. What would have been the purpose of doing a digital

rectal examination?

A. Well, it examines that part of the anus and rectum

that is within the reach of the finger. And again, it

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'-cv-00184-GMS Document 48 Filed 03/28/13 Page 17 of 116 PagelD #: 284 144

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doesn't examine the entire colon, but it is again better

than nothing. It examines some of the rectum. If there is

a cancer there, then it could be detected.

It also might happen diagnosing a fissure or

internal hemorrhoids.

Q. When you have a fissure or an internal hemorrhoid,

what generally is the color of the blood?

A. It's usually bright red and very visible.

Q. And is that the same or different than when you get

the result of an occult blood?

A. No. Occult by definition means that it cannot be

seen. It's mixed into the stool, and that's why the stool

has to be tested.

Q. Now, Mr. Campbell had some other problems during this

time, also, did he not?

A. Yes.

Q. Can you tell the Court what some of those problems

were?

A. Well, he really had multiple medical problems at a

young age. Probably the most serious is that he had cardiac

problems, heart problems,

Q. And did he receive cardiac treatment at the VA

Hospital?

A. Yes, he did.

Q . And who provided that cardiac trea - jnent, do you

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recall?

A. I don't recall the name of the cardiologist. But he

was admitted. He had a cardiologist see him. He had

testing.

Q. And occasionally were certain tests performed on him?

A. Yes.

Q. And was he eventually admitted to the VA Hospital for

cardiac testing in October of 1999?

A. Yes, he was.

Q. Doctor, we have some books in front of you. They have

pages with little numbers down on the side. If you will

open them.

MR. WHITEHURST: May I approach, Judge?

THE COURT: Yes, sir.

Which volume are you in, Mr. Whitehurst?

MR. WHITEHURST: It's the third volume, Your

Honor, 1570.

BY MR. WHITEHURST:

Q. Doctor, does the Bates number 1570 through 1573 appear

to be the discharge summary for that admission?

A. Yes, 1571 and -- 1570 and 1571 are the discharge.

1572 does look like not an official discharge but some kind

of an end note, with a summary. And 1573 is also kind of a

summary note before discharge by a different physician,

Q. Now, how long was he in the hospital?

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A. He was there for two days.

Q. And what was his main complaint when he was admitted?

A. He came with what they call supraventricular

tachycardia, which simply means that he had the very rapid

heartbeat that originated from the atrium, which is at the

upper part of the heart. And they ultimately found it to be

a loop that was going around and overstimulating the heart.

He also had anemia and diabetes.

MS. HANNIGAN: Your Honor, I apologize again. I

am really having trouble hearing. Is there anything we can

do to amplify that?

THE COURT: Doctor, just keep your voice up. I

don't think there is much else we can do.

THE WITNESS: I will try.

BY MR. WHITEHURST:

Q. Doctor, at Bates No. 1571, can you read that into the

record, please, under No. 2, Anemia?

A. "Anemia." This was the second problem they discussed.

"Patient has microcytic anemia with hemoglobin

of 10.3 and MCV of 643 on routine labs. Patient does

complain of severe hemorrhoids with bleeding, but denies any

melena or bloody, dark stools. A colonoscopy was

recommended to the patient to follow up and he will discuss

it with his primary doctor."

Q. Okay. What is the significance of the anemia at that

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point in time?

A. Well, there are two issues. One, in terms of what

brought him to the hospital, which is the rapid heartbeat,

anemia would be relevant to that because lower blood

stimulates the heart to beat faster, to try to get the same

amount through in the same period of time.

Independently, it also means that he was

bleeding. And he lost blood, and that this happened over a

prolonged period of time, because microcytic anemia with MCV

of 64.3 means that he — it's not diagnostic, but very

suggestive that he is iron deficient, which happens over a

period of time. Somebody continues to lose his iron, they

become deficient. An acute bleed would not cause that.

Q. Okay. Would bleeding hemorrhoids cause that?

A. Very, very rarely. Very unlikely.

Q. Now, this is the cardiologist that is seeing him here.

Is that correct?

A. Yes.

Q. And he recommended when he discharged him that he see

a primary care provider on 11/1. Is that correct?

A. It doesn't say here which date. But it does say that

a colonoscopy was recommended.

Q. Okay. And that was to check for colon cancer?

A. Primarily, yes, that would be primarily for that.

Q. Now, is that, to the best of your recollection, the

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first time you ever saw any mention of colon cancer in those

records?

A. Yes. The colon cancer diagnosis implied — you know,

a physician reading it will see it in these words. It's not

specifically stated. But, yes.

Q. Okay. And the cardiologist recommended to have his

blood sugar checked regularly?

A. Yes.

Q. Now, we have already discussed Mr. Campbell's habit or

propensity to miss appointments. Did he have any other

problem that interfered with him coming to the doctor?

A. He had anxiety, and I think some social issues. He

was involved in a legal battle. A subsequent progress note

of 2/7/2000 notes that.

So I would be speculating that these things may

have interfered.

Q. Is it noted that he had a severe phobia of needles?

A. Yes. That was noted, and on the same discharge

summary.

Q. Now, Doctor, do you recall when the first time that he

saw Dr. Kraft was?

A, 1 don't recall the first time at this point.

Q. May I refer you to Bates 1574. It should be in that

same binder.

A. What is the number?

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Q. 1574.

A. Yes. I see a note by Dr. Kraft.

Q. And is there any indication in that note that Dr.

Kraft discussed the gastroenterology followup with him?

A. No. This is a note of 2/7/2000. And there is no

indication or mention of anemia or blood in the stool or a

recommendation for a colonoscopy.

Q. In your opinion, to a reasonable degree of medical

certainty, should Dr. Kraft have been aware that a

gastroenterology followup or colonoscopy was recommended?

A. Yes.

Q. With a reasonable degree of medical certainty, should

Dr. Kraft have inquired as to Mr. Campbell having or not

having that procedure done?

A. Yes.

Q. Now, prior to seeing Dr. Kraft, he had missed two

appointments. Is that correct?

A. I recall that that is correct.

Q. Is there any indication that Dr. Kraft did any kind of

rectal examination?

A. No.

Q. In light of the information contained in the record of

October 3rd and 4th, 1999, should he have done a rectal

examination?

A. Yes.

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0-cv-00184-GMS Document 48 Filed 03/28/13 Page 23 of 116 PagelD #: 290 150

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Q. Now, can you turn to Bates document 1568, please?

A. Okay.

Q. Halfway down, "Addendum"?

A. Yes.

Q. Is there any indication there that during the time

that Mr. Campbell was in the hospital he was given

medications?

A. Well, this note mentions one medication, which is

Verapamil, which is to break his rapid heartbeat.

There are other medications that were given on a

subsequent admission.

Q. All right. In that admission, was there a method to

administer medication through IV port?

A. In the emergency room they mention PO, oral Verapamil.

They mention Ativan, which was one milligram given IM,

intramuscularly. Then it says that, "Subsequent IV access

was obtained in the left antecubital area. Patient was

given six milligrams of Adenocard...," which is another

heart medication for arrythmia. The implication is that it

was given through IV. And then it says, "...followed by 12

milligrams IV Ativan,"

Q. So at least at that point in time he had been accessed

with a needle to do whatever was necessary for the doctors

to treat him. Correct?

A. That's correct.

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Q. And this was a cardiac event. Correct?

A. Yes.

Q. Now, when you have a flexible sigmoidoscopy, do you

undergo sedation?

A. For sigmoidoscopy, I am not sure, not being a

gastroenterologist. Certainly for colonoscopy you do.

Sigmoidoscopy, I think not.

Q. Okay. For a colonoscopy?

A. Yes, you do.

I am pretty sure that usually there is no

sedation with a sigmoidoscopy, now that I think about it.

Now that I think about it, I am pretty sure that usually

sedation is not required for a sigmoidoscopy.

Q. Sigmoidoscopy?

A. Right. Sometimes it's done. But it's just light

sedation. It can be done orally as well, or not at all.

Q. It's uncomfortable, though, is it not?

A. A sigmoidoscopy is much less uncomfortable than a

colonoscopy. It's possible to do it without sedation.

Q. Now, when Mr. Campbell had problems with his heart, he

would go to the VA Hospital. Correct?

A. Tes.

Q, And they would treat him. Correct?

A. Yes.

Q. And the primary concern for the gastroenterology

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followup in October and March of 1993 should have been to

rule out colon cancer?

A. Yes, it's the most, obviously, the most threatening

possible cause.

Q. Okay.

A. We also rule out the most threatening causes first.

Q. Is there any indication that anything was done between

March of 1993 until October of 1999?

A. No, there is no indication.

Q. To rule it out?

A. There is no indication.

Q. Now, Mr. Campbell was seen subsequently by Dr. Kraft

again on May 22nd. And that's Bates Document 1575.

A. That's correct.

Q. Is there any indication there that any rectal

examination was done?

A. No.

Q. Is there any indication that he discussed with Mr.

Campbell whether or not he had had a gastroenterology

followup?

A, No, there is no indication of that.

Q. Is there any indication in the records from either the

2/7 visit or the 5/22 visit that there is a gastroenterology

consult requested?

A, No.

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Q. Is that a breach of the standard of care under the

circumstances of this case?

A. Yes.

Q. Now, he next saw Dr. Kraft on the 31st, correct, of

July?

A. Yes.

Q. Of 2000?

A. That's right.

Q. And what were his significant findings that day

regarding his gastroenterology problems?

A. A July 20, 2000 note -- I am sorry. You are asking

about Dr. Kraft?

Q. 1577, yes, sir.

A. Yes. That was on July 31st. "Patient presents with

concern of blood in his stool."

So he came for blood in his stool.

Q. Continue on.

A. "He has had in the past hemorrhoids with some

spotting. He has noted increased amount of this bleeding.

Stool is blood streaked, but no black stool. He does not

note any diarrhea or constipation. He does note occasional

narrowing of the stools, varying consistency. Some pain

with passing stool."

Q. All right. And he took blood from Mr. Campbell that

day, or somebody took blood from him?

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Ucv-00184-GMS Document 48 Filed 03/28/13 Page 27 of 116 PagelD #: 294 154

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A. In the impression, under Item 3, it says, "Will allow

us to get blood today, check for DM," which means diabetes

melitis.

So the patient agreed to have blood.

Q. Okay.

A. Then he did, because there is an addendum —

THE COURT: Doctor, use the mike.

THE WITNESS: I am sorry.

There is an addendum note 7/31 saying, "Patient

with profound FE," which means iron deficiency, "anemia."

So there are some results that are being noted.

BY MR. WHITEHURST:

Q. Before the blood was taken, was a rectal examination

done?

A. Yes.

Q. And were hemorrhoids, both internal and external, able

to be palpated?

A. Yes.

Q. And Dr. Kraft's impression was this represented

hemorrhoids but he wanted to check for anemia and consider a

Barium enema. Is that correct?

A. That's correct,

Q. Okay.

A, To qualify, this was his initial impression,

Q, And then he filed an addendum. Is that correct?

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A. Yes.

Q. And what was his treatment plan at that time?

A. He noted the presence of profound iron deficiency

anemia, and says, "Spoke with Dr. Ali and will schedule

emergent colonoscopy within the next three weeks, will call

patient."

Q. Now, Dr. Kraft was correct in doing that, was he not?

A. Yes.

Q. And eventually, the colonoscopy was done in August.

Is that right?

A. That's right.

Q. August 18th.

A. Yes.

Q. Now, the doctor who performed the colonoscopy removed

a rectal mass. Is that correct?

A. Well, I think he describes seeing a rectal mass.

Q. That's correct. I stand corrected.

A. And he took fragments of it, biopsies.

Q . How did —

THE COURT: Mr. Whitehurst, that is the benefit

of not leading the witness, what you just heard. Let the

witness actually testify. Okay? He is your witness.

MR. WHITEHURST: Okay.

BY MR. WHITEHURST:

Q. Was a biopsy done on that?

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A. Yes.

Q. On those fragments. What was the result of the

biopsy?

A. Well, the fragments were the results of the biopsy,

which is the name for the procedure. And basically it

showed colon cancer — I should say, it's really rectal

cancer. Sometimes people use terminology interchangeably

because they are so similar.

Q. Was the size of that mass mentioned?

A. In this report, the size was not mentioned.

Q. Can you turn to 1579, Doctor?

A. Yes.

Q. Is that the colonoscopy report?

A. Yes, it's a colonoscopy report.

Q. And what were the findings on the colonoscopy?

A. There was a rectal mass that was felt on the colonic

wall by rectal exam prior to the procedure. Then they put

in the scope, and saw a large irregular ulcerated friable

mass present in the rectum which measured ten centimeters.

And then that was biopsied.

Q. Okay. How big is ten centimeters, Doctor?

A. It's quite large.

Q. What was the impression?

A, "Large irregular ulcerated friable mass in the

rectum."

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Q. Now, do you have an opinion to a reasonable degree of

medical certainty as to whether that rectal mass was what

was palpated as an internal hemorrhoid by Dr. Kraft?

A. I find it more likely than not that it was.

Q. Now, subsequently, surgery was performed. Correct?

A. Yes.

Q. And what was the purpose of that surgery and when was

it done?

A. I am just trying to establish the exact date.

Q. It was in the end of September.

A. Yes, that's what I recall as well, the end of

September.

Q. Well, in any event, Doctor, do you recall that the

mass was removed at that time?

A. Yes. Let me just see if I can find the operative

report to make sure I am saying this correctly.

THE COURT: Do you have a Bates number on that,

Mr. Whitehurst?

MR. WHITEHURST: I am trying to find it myself,

Judge.

CPause.)

THE WITNESS: 1 am not finding it.

BY MR. WHITEHURST:

Q. Well, at least the rectal mass was removed. Is that

correct?

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A. My recollection is, yes, that he got chemotherapy and

radiation and had it removed.

THE COURT: Doctor, please use the mike.

THE WITNESS: Yes, I am sorry.

BY MR. WHITEHURST:

Q. Do you recall in relationship to the anus where the

mass was?

A. I recall that it was within ten centimeters of the

anal opening.

THE COURT: Within ten centimeters of the anal

opening.

BY MR. WHITEHURST:

Q. Would you have been able to palpate that mass with a

rectal examination?

A. The lower part of it should have been palpable with a

rectal examination.

Q. Now, you were not asked to review anything regarding

his post-surgical care. Correct?

A. That's right.

G. But he was given chemotherapy along with radiation?

A. I see some notes talking about giving it before. I am

not sure what exactly happened. It may have been given

before and after.

Q, That was appropriate?

A. Yes.

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Q. Now, Doctor, can you look at Bates Document 1582?

A. Okay.

Q. And halfway down, there is a notation of a

Consultation?

A. Yes.

Q. And what was that consultation for?

A. This was for hematology/oncology consultation.

Q. Done by Dr. Campwala?

A. Yes.

Q. On the fourth line down regarding his findings, can

you read that into the record, please?

A. The fourth line down from —

Q. Starting from "Mr. Campbell," the line that starts

with "8/18"?

A. Shall I just read the line from there?

Q• Yes.

A. "8/18 of rectal adenocarcinoma in a villous

adenomatous polyp lesion."

Q. Can you explain to the Court what a villous

adenomatous polyp lesion is?

A. The way cancers develop most often is with a polyp,

that is, that undergoes the process of change and mutation,

and ultimately cancer arises in the polyp. There is a time

frame for that. Usually, the polyp would have been found

first, then usually would have been removed. Then the

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cancer spreads from there.

Q. Okay. You want to remove the polyp before it becomes

cancerous?

A. That's right. Or at least before it spreads through

the base of the polyp into the wall of the colon. From

there, it can travel.

Q. Now, what's generally accepted as the time frame for

development of a lesion such as that into cancer?

A. Anywhere between three and ten years. Most often

around five, three to five years.

Q. Do you have an opinion as to whether, to a reasonable

degree of medical certainty, if a colonoscopy had been

performed back in March of 1993, it would have found that

lesion?

A. Yes.

Q. What is that opinion?

A. It would have been found.

Q. And what would have been done with it?

A. At that point, it would have been small and very

early, and it would have been removed through the

colonoscope, and nothing else would be necessary.

Q. Do you have an opinion as to whether, if that polyp

had been removed in 1993, Mr. Campbell would have followed

the course that he did, eventually leading to his death?

A, Yes. He would not have followed this course.

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Q. Do you have an opinion, to a reasonable degree of

medical certainty, if that colonoscopy had been done in

1993, whether he would have had to have any subsequent

treatment?

A. No. That would have taken care of it.

Q. Doctor, this is a somewhat difficult question to

answer, I am sure. But is there a cutoff date here where it

would have been too late to prevent him from having to at

least undergo some cancer treatment?

A. Any time up to three months or so, to August of 2000,

it would have impacted the kind of treatment he would have

gotten, and would have improved his chances of not dying

from this cancer.

Q. Is that opinion held to a reasonable degree of medical

certainty?

A. Yes.

THE COURT: He said he is giving all his

opinions with that in mind.

MR. WHITEHURST: Yes, sir.

Thank you. I don't have any other questions

THE COURT: Ms, Hannigan, you may cross-examine.

MS. HANNIGAN; Thank you, Your Honor.

Your Honor, could we take a five-minute break?

THE COURT; Sure.

(Recess taken.)

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THE COURT: Ms. Hannigan.

MS. HANNIGAN: Thank you, Your Honor.

CROSS-EXAMINATION

BY MS. HANNIGAN:

Q. Good morning, Dr. Levin.

A. Good morning.

Q. We have met before, have we not?

A. Yes.

Q. At your deposition?

A. That's right.

Q. And I will ask you, again, please, to try to keep your

voice up. My hearing isn't as good as it used to be.

A. Neither is mine.

Q. You were asked during your direct examination about an

examination that took place on March 11th of 1993 of Mr.

Campbell. Do you recall that?

A. Yes.

Q. Were you aware what the purpose of that examination

was?

A. I would have to look at it.

Q. Well, 1 will represent to you, and then you tell me if

you agree, that it's my understanding it was for the purpose

of examining his hand to see if an injury to his hand was

Service-connected so that he would get financial benefits

from the VA. Is that your understanding?

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0-CV-00184-GMS Document 48 Filed 03/28/13 Page 36 of 116 PagelD #: 303 163

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A. Yes, I recall that now, yes.

Q. So the examination at that time really had nothing to

do with the provision of medical care. Is that correct?

A. I am not sure I would agree with that.

Q. Well, X would suggest that it might be considered

similar to an exam one might have before getting insurance

coverage to assess and evaluate the condition of the

patient. Does that make sense to you?

A. It does. But I am not sure what the obligation of the

VA physician or the VA system that's also treating the

patient would be. In that case, an occupational medicine

physician is employed and is responsible to the insurance

company in some way, either directly or indirectly.

Here, he goes to the same clinic, he sees the

same kinds of physicians in the same setting, even though

it's called an occupational clinic. That is something I am

not able to really testify to.

Q. I am going to refer to it as a C&P examination,

compensation and pension exam. Do you have any idea where

that examination took place?

A. 1 don11 recall.

Q, Do you know if it was in the hospital?

A. I would have to look at the note.

Q. Well, you are welcome to,

A. Would you know where it is?

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THE COURT: The Bates number on the note?

MS. HANNIGAN: I will pull that up, Your Honor.

BY MS. HANNIGAN:

Q. It's Bates No. 551. It would be in the first of those

three volumes.

A. The location is not really stated beyond the city.

But the format, the computer format is the same as in many

other notes in the record. So I assume it's the same

program being used.

Q. So the form that was used to record the information

for the C&P exam looks like the form that was used in the

hospital for actual patient care. Is that correct?

A. That's right.

Q. But is it fair to say that it could be that the duty

that was owed by Dr. Thomas to this patient was really

different from the duty owed by a doctor in the medical

treatment setting?

A. That's really beyond my qualifications as an expert.

Q . Fair enough.

Do you happen to know if this patient ever saw

Dr. Thomas before or after the date of this examination in

1993?

A. 1 don * t recall any records that he had.

Q. You testified that occult blood by definition means

that you can11 see it with the naked eye, Right?

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A. That's right.

Q. So when the patient came in for that C&P exam in March

of 1993, he did not complain of any bleeding from the

rectum. Is that correct?

A. There are no rectum-specific complaints, none recorded

in that note — well, I should state that in the note of the

examination of the digestive system, it's mentioned that an

internal exam reveals guaiac positive stool and no internal

masses.

There are no complaints that are recorded.

Q. So at that time, presumably, the patient was not even

aware that he had any bleeding from the rectum. Is that

fair to say?

A. All I can say, that's not been recorded.

Q. Okay. If you look to, I think the area you were just

looking at, it's on Page 553, about three-quarters of the

way down, I apologize, the text is cut off a bit, but it

appears to be the review of the digestive system. It says,

"The abdomen is non-tender. No palpable masses. No

organomegaly. A small internal hemorrhoid. The internal

exam reveals guaiac positive stool and no internal masses.

Bowel sounds are active."

Do you see where I am reading?

A. Yes.

Q, That does record the fact that Dr. Thomas did do a

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rectal exam on that date. Right?

A. Right. This is not a review -- we refer to a review

of systems. So I just want to make clear, it is a physical

examination, not a review of systems. And, yes, I agree

with what you just said.

Q. So he did note that there were no internal masses that

he could feel with his finger during a rectal exam in March

of 1993. Is that right?

A. That's right.

Q. Why, in your opinion, would someone who was doing an

examination to see if a finger injury had a certain

derivation or etiology, why would that person even do a

rectal exam?

A. I can speculate. But the answer is, I don't think

anyone knows.

Q. Okay. Have you ever done a C&P exam?

A. I have done similar things. I am not sure what the

criteria for C&P is. I have done IME exams, which is

independent medical evaluation.

Q. You testified that the most concerning cause of the

occult blood was cancer. But that•s also the least likely

cause in this young man, isn't it, a 38-year-old man, no

family history of colon cancer, no symptoms, no complaints?

A, 1 agree that it's less likely than some other

diagnosis« But as the most threatening diagnosis, it has to

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stay at the top of what we call differential.

Q. Because it's the most concerning?

A. Yes.

Q. Well, if I tell my doctor I have a headache, he is not

going to send me for an MRI to see if I have brain cancer,

is he?

A. He will screen you first with history and physical

exam. But he will definitely consider brain cancer in the

diagnosis if he is a good doctor.

Q. Wouldn't he first consider the most likely cause of

it?

A. That would be a mistake. That is not the way to

approach it. A physician who does that will miss some

important diagnosis.

Q. Well, in a patient such as Mr. Campbell, who had

hemorrhoids, which could certainly cause rectal bleeding,

wouldn't it be the most sensible thing, if you were going to

be treating this patient, to start conservatively and to go

looking for the cause of the rectal bleeding and the

hemorrhoids, rather than to jump to let's screen out colon

cancer?

A. Right. Like in your headache example, obviously, the

physician has to ask some questions and do a little

thinking. If the pain is in the neck, or is related to

stress, or there is tenderness on pressing the temples, et

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cetera, then, yes, the physician will, should suspend,

temporarily suspend the consideration of brain cancer.

In this case, there were guaiac positive stools.

It's not noted that there are any hemorrhoids. There are no

hemorrhoids present at that time. So there is no diagnosis.

You need to keep colon cancer still in the

differential, pretty high up in the differential.

Q. Doctor, the note actually does, in the area that I

just read, says there is a small external hemorrhoid. So

the existence of hemorrhoids at that time was documented?

A. Right. So what my response would be is that this is a

guaiac positive stool. I think it says "stool." Part of it

is cut off. And an external hemorrhoid would just bleed

right out on the surface of the anus. It would be bright

red blood. It wouldn't be discovered only by guaiac

positive testing. This means it came up from higher.

Q. Am I correct —

THE COURT: What came from higher?

THE WITNESS: The bleeding was higher than the

hemorrhoids. Because it was not visible, it was in the

stool, it was mixed with the stool, it means that it was

somewhere higher up.

THE COURT: And that's what is meant by a guaiac

positive school?

THE WITNESS: Right. Guaiac is the name of a

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chemical that turns colors when you test the stool, it turns

blue color.

So an external hemorrhoid would not give you

guaiac positive stool. It would give you bright red blood.

You would not need to do guaiac to discover it.

BY MS. HANNIGAN:

Q. It is my understanding that the standard when relying

upon a guaiac positive is to do it at least twice, maybe

three times. Is that correct?

A. Yes. If it is negative it should be done several

times. If it's positive, even one test is a concern.

Q. The test itself is extremely sensitive, is it not? If

you brush your teeth too vigorously, you could have a guaiac

positive school?

A. That's correct.

Q. If you eat red meat at lunch you could have a guaiac

positive school?

A. That's correct. The way the test usually runs is,

there is a card with two openings. You are supposed to put

it from two different sides of the anus with just a little

bit in each, and yon are supposed to do it three times.

Essentially, there are six tests that are carried out.

It's hard to tell what was done here exactly.

But I agree with you, it does not sound like it was three

different tests. But a positive test needs a followup.

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Q. Do I understand correctly that your opinion is pretty

black and white? Positive guaiac on this one test,

colonoscopy should have been done, period?

A. When there is a guaiac positive test and there is no

explanation, then, yes, colonoscopy should be done.

Q. You testified earlier that the standard of care now

would be to do a colonoscopy based upon the finding of the

guaiac positive test. I think when I asked you at your

deposition what was the standard in 1993, you essentially

said that it might be colonoscopy, it might not be

colonoscopy, but the use of colonoscopy certainly over the

last 20 years has become much more prevalent.

Is that fair to say?

THE COURT: I am not sure what your question is,

Ms. Hannigan.

BY MS. HANNIGAN:

Q. Is it fair to say that the use of colonoscopy over the

last 20 years has become much more prevalent than it was in

1999?

A. Yes.

THE COURT: Do you mean in '33 or '99?

MS. HANNIGAN: '93, I am sorry,

THE WITNESS: I understood that as well,

BY MS. HANNIGAN:

Q. All right. I would like to ask you to revisit a

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|-cv-00184-GMS Document 48 Filed 03/28/13 Page 44 of 116 PagelD #: 311 171

Levin - cross

couple of the pages in the medical record that you were

asked about on your direct examination. Before we do that,

one other point.

You testified that occult blood rather than

bright red frank blood would be indicative of a polyp

further away from the anus, much further up the system. Is

that right?

A. I wouldn't say much further. It would be further

enough that small amounts of blood get a chance to mix in

the stool. And that would not be visible to the naked eye.

Q. Whereas today, in retrospect, we know that the cancer

that was found was very close to the anus, it was in the

rectum?

A. Right. The lower edge of the cancer was close to the

anus. I don't know if it began ten centimeters above and

the mass grew down or where actually it happened.

So I can't say that it was — at its genesis

that it was that close.

MS. HANNIGAN: Your Honor, may I have one

second?

BY MS, HANNIGAN:

Q. If we could turn your attention, please, to Bates No.

1571. That is the discharge diagnosis from October of 1999.

I actually think it begins on Page 1570. You testified

about it in your direct exam. Do you see where I am?

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A. Yes.

Q. On the second page, Item No. 2, beginning in the

middle of the third line, "He denies any melena or bloody,

dark stools. A colonoscopy was recommended to the patient

to follow up and he will discuss it with his primary

doctor."

Do you know why it was that he was discharged to

follow up with his primary doctor?

A. My impression is that the VA system works like this.

Specialists take care of specialists' problems and primary

doctors take care of everything else.

Q. Were you aware that Dr. Gadam Reddy told him you

should stay here and let us work it up and he refused?

A. What do you mean by here, stay here?

Q. I am sorry.

A. What does it mean, stay here? Where?

Q. When he was hospitalized in October, he was told, you

should have a colonoscopy, you should have a workup here, we

will keep you inpatient, we will work it up here, and he

said no?

A, 1 recall reading that information someplace, but 1

don't remember where.

Q. If you would look at Bates No. 1573.

A, Yes, 1 see that statement there, yes.

Q. He has hemorrhoids. "We wanted to work him in the

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hospital, but patient preferred to be worked up as

outpatient," "outpatient department," I assume, "OPD."

So the patient was told and the patient said I

want to go home. Is that right?

A. He said that he wanted to be worked up as an

outpatient.

Q. Do you know if he had a relationship already with Dr.

Kraft?

A. I don 11 know.

Q. Are you aware that he had never seen Dr. Kraft before

the October 1999 admission?

A. There were no notes prior to that.

Q. And, in fact, if you go down and look under Item No. 4

on Page 1571, it reads, "An appointment was made for the

patient to see a primary care provider. Dr. Kraft" -

A. I am sorry, where was that again?

Q. Page 1571, Item No. 4.

A. I don't see that. I see something else. 1571?

Q. Yes.

A. I see history of -

THE COURT: Under 4, the second full paragraph.

THE WITNESS: Second paragraph.

THE COURT: It starts, "Patient was felt..."

THE WITNESS: Yes, 1 see that.

BY MS. HANNIGAN:

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Q. And it reads, "An appointment was made for the patient

to see a primary care provider, Dr. Kraft, on November 1st,

1999, at 11:00 in the morning"?

A. Yes, I see that.

Q. Do you know if the patient kept that appointment?

A. I don't see any notes for that date. That's all I can

say.

Q. Okay. It was recommended to the —

THE COURT: "That date" meaning 11/1/99.

BY MS. HANNIGAN:

Q. And continuing, "It was recommended to the patient" —

THE COURT: I am just asking the Doctor, when

you said "that date," is that what you meant?

THE WITNESS: Yes.

BY MS. HANNIGAN:

Q. "It was recommended to the patient that he should have

a colonoscopy to check for colon cancer."

Do you see where I am reading?

A. Yes.

Q. I will represent to you that it's my -understanding

that the patient not only failed to appear -

THE COURT: You can't testify, Ms. Hannigan.

BY MS. HANNIGAN:

Q, Is it your understanding that the patient kept either

of the appoii '0- ts that were scheduled for him before he

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even left the hospital in October of '99?

A. Can you repeat the question again?

Q. Sure. It appears as though an appointment was made

for him to see Dr. Kraft, referred to as his primary care

doctor, on November 1st of 1999, that appointment was made

before he ever left the hospital. Correct?

A. Yes.

Q. Do you know if he kept that appointment or a

subsequent appointment with Dr. Kraft during 1999?

A. I see no documentation that he did.

Q. I am sorry?

A. I don't see any documentation of a visit on those

dates.

Q. Well, am I correct that the first note from Dr. Kraft

is dated February of 2000?

A. Yes, that's right.

Q. And is there any indication that he had seen Dr. Kraft

at any time before that?

A. There is no indication.

Q. If you would, please, turn to Page 1575 -- I am sorry.

Back up one to 1574, please. This is the first note from

Dr. Kraft, is it not?

A. Yes.

Q. Dated February 7th of 2000?

A. That1s right.

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Q. And he noted, "Patient presents now with complaints of

anxiety."

Is there any indication in that note that there

was any symptom reported that would have been in any way

related to colon cancer?

A. No, there isn't.

Q. If you drop down to the third paragraph there, it

starts with, "PT has a pathological fear of needles."

Do you see that?

A. Yes.

Q. "And flat-refuses to get blood drawn today, especially

in his present state of anxiety."

A. Yes.

Q. If the patient had agreed to have blood drawn that

day, would the anemia have been followed up — I am sorry,

that is the wrong question — would the anemia have been

apparent?

A. Yes.

Q. And that would have offered an opportunity for Dr.

Kraft or anyone else with the VA to follow up on the anemia.

Is that correct?

A, That's correct,

Q. If you look at the next page, dated May 22nd, 2000,

again, a note from Dr. Kraft, if you go down to toward the

end of the note, IMP, impression, at the end of No. 1, "DM,"

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that's diabetes militis. Right?

A. That's right.

Q. "Advice. Will need to take a medication, hopefully he

will agree to blood draw today."

So is it your impression that Dr. Kraft was

pursuing the effort to try to get a blood draw from this

patient?

A. I am not sure why Dr. Kraft doesn't simply document —

I am not sure why Dr. Kraft doesn't simply document whether

patient agrees or doesn't agree to a blood draw. I am not

sure -- I am having a little trouble understanding what it

means, "Hopefully, he will agree to blood draw today."

There is something that happened after the note

was written that is not recorded.

Q. All right. What about Page 1577. That note begins,

"Patient presents with concern of blood in his stool."

Correct?

A. Yes.

Q. That's the first time in these voluminous medical

records that it appears that the patient expressed a concern

about blood in his stool. Isn't that fair to say?

A. Yes.

Q, Would you agree that the patient, at his age, with,

quote, "no familial colon cancers," as noted there, is at

low risk for colon cancer?

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A. He was 45 at this point. He has some risk for colon

cancer. With this history, he has a high risk for colon

cancer. The standard recommendations, I believe, at that

time were to start screening colonoscopies at 50. So he was

45.

Somebody off the street who was 45 I think would

probably agree with you that there would be a low risk. But

somebody who has a history of occult blood, bleeding,

positive guaiac, and anemia, that he would not have a low

risk. He would have a very high risk.

Q. Based on the one guaiac positive stool in 1993?

A. Well, he also had blood, visible blood in the stool,

so it appears. "Patient presents concern of blood in his

stool."

I.e., I understand that to mean is reporting

something new. Not that he for the first time decided to

mention what happened in 1993, seven years later. I think

he is reporting blood in his stool.

Q. Item No. 3 on that same page notes, "Will allow us to

get blood today."

So it looks as though the doctors were

continuing to seek his permission to take a blood sample.

Correct?

A. Yes. The reason is to check for the diabetes melitis.

It seems that is what they were thinking about doing. Not

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thinking of anemia.

Q. All right. But that doesn't say that. All it says is

"Will allow us to give blood today"?

A. Right.

Q. "Check for DM," check for diabetes melitis?

A. Right.

Q. Then in the addendum, which you were asked about,

lower on that page, it reads, "Patient with profound iron

deficiency anemia."

I think you testified earlier that it takes a

while for that to develop, that isn't something that would

be an acute bleed, that is some chronic bleed. Right?

A. That•s right.

Q. So if in the years between that single guaiac positive

finding and this date, if all the repeated times this

patient had been asked to have a blood test he had done so,

at some point that developing anemia would have been

visible. Is that correct?

A. Yes. Had blood work been done during those

intervening years, it would have been discovered he has an

anemia,

Q. If you would look, please, to 1582, you were asked in

your direct examination about the language "Iron deficiency

anemia from chronic bleeding and most recent diagnosis on

8/18 of rectal adenocarcinoma,"

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I think you testified that the growth rate of

the adenocarcinoma in a villous adenomatous polyp lesion was

anywhere from three to ten years. Is that right?

A. Or even longer, yes.

Q. Your testimony was three to ten years. Right?

A. Yes.

Q. And you said the average would be somewhere around

five years. Right?

A. This data comes from how to set an interval for

screening colonoscopy. It doesn't really apply to

individual patients.

Q. Could you speak more into the microphone?

A. The data of three to five years really comes from

studies that are trying to determine what the appropriate

interval for screening colonoscopy would be. It is a public

policy issue, the cost-versus-benefit issue.

In an individual patient, you have to look at

the whole situation.

So I cannot say that it took three to five years

in this patient. I would disagree with that.

Q. If 1 understand, your testimony today was the average

is about five years?

A. That's the average. But this is for all patients, all

comers, all people.

Q. Okay. I understand.

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A. It's not for this particular patient.

Q. But it is true, is it not, that if this polyp had

started to grow three to five years before this date of

examination, it was not there in 1993?

A. Assuming a hypothetical that it was not there, it

didn't grow before five years, it wouldn't be here. It's a

hypothetical question. I answered it hypothetically.

Q. Would you agree that it appears that this was a

particularly aggressive tumor that Mr. Campbell had?

A. No, I don't think so.

MS. HANNIGAN: Your Honor, if I may have a

moment?

THE COURT: Yes.

(Pause.)

BY MS. HANNIGAN:

Q. And I think you testified at your deposition that it

was not possible to tell where the polyp was in 1993 now

that we know where it was in 2000?

A. That's correct.

Q. But we do know that Dr. Thomas didn't record feeling

it when he did the rectal exam in 193?

A. That's correct.

Q. Now, regarding the admission in October of 1999, if I

recall correctly, you testified at deposition that even if

he had been diagnosed at that time he would still only have

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had a 40-percent chance of survival. Is that correct?

A. What was the date again?

Q. The October 1999 admission.

A. Yes.

Q. When the anemia was —

A. Yes, I did.

Q. Did you realize that he received counseling at the VA

to help him cope with his phobia of needles?

A. I saw that he went to the mental health clinic, and I

saw that anxiety was mentioned. I would have to look back

to see if this specific phobia was also addressed in that.

Q. Would you agree that over the course of years of his

treatment that the focus was on his very serious heart

problems?

A. No. I see multiple problems being addressed at all

the visits.

Q. Well, when he was hospitalized, it was because of a

very severe SVT. Right? His heart was racing

uncontrollably?

A. Right. Can you repeat your question?

Q. When he was hospitalized both times, the reason was

because his heart was racing uncontrollably and he had to be

medicated to get that under control. Is that right?

A. That's right.

MS. HANNIGAN: Your Honor, one more moment, if I

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may.

THE COURT: All right.

BY MS. HANNIGAN:

Q. Doctor, I would like to ask you about some of these

cases in which you testified previously.

By my count, it's in the neighborhood of 50

cases. Does that sound right to you?

A. I provided the list of I think something like 35 or 36

depositions and eight trials. So it sounds like it's in the

neighborhood, if you take the depositions and trials

together.

Q. It appears to me from the information that we found on

Lexis that of 27 cases in which you testified as an expert,

three settled and the others appear to have zero dollars.

Does that mean that each of them was a defense verdict?

A. I have no idea.

Q. Would you like me to read you the names of the cases?

MR. WHITEHURST: I object.

THE COURT: I am going to sustain that

objection. 1 don't understand where you are going. How

does this bear on his credibility, the fact that there may

have been a defense verdict? There could have been a

defense verdict for any number of reasons other than his

testimony.

We are not going to have a mini-trial on each of

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these cases, Ms. Hannigan.

MS. HANNIGAN: Okay.

Your Honor if I may just note —

THE COURT: I will let you explore it. I am not

going to cut you off. I am trying to give you some

guidance. As I said, your question focused on a defense

verdict as the reason the fact-finder should conclude,

perhaps, that his credibility is adversely affected because

there was a defense verdict. Maybe, maybe not.

BY MS. HANNIGAN:

Q. Do you remember the case of Donald and Maria Anderson,

a failure to diagnosis tonsil cancer? I believe that was in

Brooklyn.

A. I have no recollection of that case.

Q. How about Ramona Arnold in Indiana?

A. I do remember the name.

Q. And you testified for the plaintiff. Is that correct?

A. I think so. May I just clarify, are you talking about

the deposition or testimony?

Q. I am sorry. I am really having trouble hearing you.

A. Are you talking about deposition or testimony?

THE COURT: Deposition or trial, do you mean?

THE WITNESS: I am sorry. Or trial?

BY MS. HANNIGAN:

Q. Either. My question is, you testified for the

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'-cv-00184-GMS Document 48 Filed 03/28/13 Page 58 of 116 PagelD #: 325 185

Levin - cross

plaintiff, right? Not the defendant?

A. In that case, the last case you mentioned, yes.

Q. How about Richard Baldwin, you testified for the

plaintiff in that case?

A. Yes.

Q. Cynthia Beitel, a case of failure to diagnosis cancer

of the tongue in Connecticut?

A. Yes.

Q. Berg Apple in New York?

MR. WHITEHURST: Objection, Your Honor. Unless

we are dealing with cases that are similar to this one, I

don't think that has any relevance at all.

THE COURT: Well, I disagree. I think the

number of times, if what you are getting at is the number of

times that he has testified for the plaintiff versus the

defense, you can sort of, I think, get to it a little

quicker than going through each one.

MS. HANNIGAN: Very well.

BY MS. HANNIGAN:

Q, Is it correct that in each of these approximately 50

cases that we know of you have testified for the plaintiff?

A» 1 don 11 believe that's correct.

Q. I am sorry?

A, I do not believe that's correct.

Q. You don't believe that's correct. Can you remember

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one in which you testified for the defense?

A. There were some disability and some toxicology cases.

I can't recall specifically. But I know that there were

several cases where it was defense.

MS. HANNIGAN: Your Honor, once more, if I may.

Thank you, Your Honor. No more questions.

Thank you, Doctor.

THE COURT: Redirect.

REDIRECT EXAMINATION

BY MR. WHITEHURST:

Q. Dr. Levin, in the list that you have provided, those

weren't all malpractice cases, were they?

A. The list that I provided —

THE COURT: Speak up, Doctor.

THE WITNESS: I don't think they were all

malpractice cases.

BY MR. WHITEHURST:

Q. And the significant finding in March was the guaiac

positive stool, March of 1993. Is that correct?

A. Can you repeat the question, please?

G. The significant finding for our purposes in March of

1993 was the gtiaiac positive stool?

A, Yes.

Q. And that's an unpleasant test but very simple to do?

A. It can be done two ways. It does not have to be

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unpleasant. It can be done by performing a rectal exam and

obtaining some stool at the tip of the finger. Or one can

ask the patient after evacuating to put just a trace of the

stool on the window of the card and apply the guaiac to

that.

Q. When the patient does it, is that sent back to the

hospital?

A. In the VA system, it would have to go back to the

hospital, to the hospital lab, yes.

Q. Is there any indication after March of 1993 that any

fecal occult blood tests were done at all?

A. There is no indication of that.

MR. WHITEHURST: Thank you. No other questions.

THE COURT: Thank you, Doctor. You are excused.

THE WITNESS: Thank you.

Have a good day, everybody.

(Witness excused.)

THE COURT: Plaintiff rests?

MR. WHITEHURST: Plaintiff rests, Your Honor.

THE COURT: Ms. Hannigan.

MS. HANNIGAN: Your Honor, we are ready to

proceed. If we could have just another five minutes?

THE COURT: We are going to have to break at

quarter of 12, because I have a meeting. Do you want a

couple minutes to prepare, then we will start?

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