Zhai v. Saint Francis Medical Center, et al

Filing 166

Deposition Rulings re: Filing 157 . Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINCOLN DIVISION
WENJIA ZHAI, Individually,

)

Case No. 4:16-CV-3049

)

Plaintiff,

)
)

V.

)

CENTRAL NEBRASKA ORTHOPEDICS &
SPORTS MEDICINE, P.C., a domestic
professional corporation; PHILIP CAHOY, M.D.,
an individual;

)
)

)
)
)
)

Defendants.

1.)

)

1) PLAINTIFF' S REQUEST FOR
PORTIONS OF PHILIP
CAHOY, M.D. 'S DEPOSITION
TO BE READ AT TRIAL; AND
2) DEFENDANTS' REQUEST
FOR RULING ON
DEPOSITION OBJECTIONS
AND FOR ADDITIONAL
PORTIONS TO BE READ AT
TRIAL

Plaintifrs Requested Portions:

72:16 Q. (By Mr. Watson) But that was something that you
17 chose to do on a daily basis in your examinations of
18 Wenjia Zhai?
19 MR. ERNST: Object to fonn. Overruled
20 Q. (By Mr. Watson) To examine him for compartment
21 syndrome, true?
22 A. No. I was not examining him for specifically
23 compartment syndrome. We were -- I was examining him for
24 any other secondary -- it's called secondary surveys where
25 you check everything for several days to make sure -- two,
73 three, four days later sometimes frach1res show up with
2 swelling, ecchymosis. So again, it's just a secondary
3 survey.
Defendants' Request for Rulings on Objections/Additional Portions:

Defendants request a ruling sustaining the above objection (72:20) because the question is vague
and ambiguous. Without this question, the rest of the excerpt does not make sense and should be
stricken. If not, Defendants request the additional portion noted below, pursuant to FRCP 32(a)(6),
which provides that "If a party offers in evidence only part of a deposition, an adverse party may
1

Granted

require the offeror to introduce other patts that in fairness should be considered with the pait
introduced, and any patty may itself introduce any other paits":

Q So is it fair to believe that you w
.
ere
5 perfonning the secondary survey for up to four days after
6 Wenjia Zhai arrived in the hospital under your care
7 looki ng for other medical problems?
8
A. A least.
t
9
Q. And w
ould cofll)artrr.ent syndrome be one of those
10 other medical probl ems that could arise within the tw to
o
11 three to four days in the hospital after a traumati c
12 fracture?
13
A. Anything is p:issible, but again, it w I t the
asn
14 situation in this case.
(73:4-14)

2.)

Plaintiff's Requested Portion:

88:12 Q. (By Mr. Watson) Okay. Did you expect the other
13 physicians to consider you to be the primary physician
14 examining for compaltment syndrome?
15 MR. ERNST: Object. Fonn and foundation. Asked

Overruled

16 and answered.
17 A. Not consciously.
18 Q. (By Mr. Watson) What do you mean "not
19 consciously"?
20 A. I don't think they consciously said, We're going
21 to have Dr. Cahoy look at compaitment syndrome. I think
22 they would look at the patient. If they saw something,
23 they would have a discussion with me.

Defendants' Request for Ruling:
Defendants request a ruling regarding the above objection (88:15) because it is vague and
ambiguous as to "primary physician" and was asked and answered.

2

3.)

Plaintiff's Requested Portion:

87:20 Q. Okay. So you retained the challenge of
21 examining him for compartment syndrome?
22 A. Correct.

Defendants' Request for Ruling/Additional Portions:
Defendants note that Plaintiff did not include the defense objection (87:23) which should be
sustained because "retained the challenge" is vague and ambiguous. If not sustained, Defendants
request the additional portion be read into evidence:
24

A.

As far as --

2:i

Q.

(By M
r.

Sustained

W son) The care of -at
E7

2
3
4

5

A I didn't specifi2.ally say, Nobooy touch him.
.
N I didn ' t say, Nolxxiy can touch him but me .
o,
Q. But it w understoc<l that you w the
as
ere
physician w was looking for corrpartrnent syndrcrre?
ho
A N That 's not UP.derstood that I 'm :he only one
.
o.

6 looking for t hat .

(87:24-88:6)

4.)

Plaintiff's Requested Portion:

94:5 Q. Was there a reason why you decided not to
6 document your medical opinion that Mr. Zhai did not have
7 compartment syndrome?
8 A. Again, it was low on the list. He just did not
9 have the clinical indication to have compartment syndrome.
10 There is a lot of negatives that I could fill a chart
11 with.

5.)

Plaintiff's Requested Portion:

122: 13 Q. Okay. Is there a different standard of care
14 when a patient is intubated and unconscious and unable to

3

15 respond to the examiner's questions?
16 A. If that was the only confounding factor, no, I
17 don't believe so. I think, again, clinical judgment is
18 going to be the standard of care for that patient, also.
46:9 Q. Was compartment syndrome relevant to your pmt
10 of the care ofWenjia Zhai?
11 A. It was considered but very low.
12 Q. What do you mean "it was considered" but it was
13 "very low"?
14 A. His examination and his clinical situation did
15 not project any suspicion of compartment syndrome.

6.)

Plaintiff's Requested Portion:

50: 19 Q. And was your scope of practice the fractures
20 sustained by Wenjia Zhai?
21 A. CoITect.
22 Q. And would it be fair to say that your scope of
23 practice also included the risk of compartment syndrome?
24 A. Generalized scope of practice or are you talking
25 about -51: 1 Q. In the care of Wenjia.
2 A. Delegated to me or just everybody? It wasn't
3 delegated. It was I understand the compartment syndrome
4 and its relationship to musculoskeletal injury if that's
5 what you're saying.

Defendants' Request for Additional Portions:
Defendants request the following additional portions be read into evidence: granted

4

Were you of the belief that you r:eeded to be
1i ordered to look for corripartment syndrome before yo'J w
ould
12 start to look?

10

Q,

13

A.

14
15

16
17
18

19
20
21

N
o.

And why were you not recpired to be ordered to
look for compartment syndrcme?
A. AB a physician treatir.g a patient in his
position, everything overlaps, again, so everybojy has
that responsibility to keep an eye almost on everything .
Now, SOITe people I11ay have more of an expertise or mere of
a training than other people, but to have the
responsibility alone, I w
ould say no.
Q.

(52:10-21)

7.)

Plaintiff's Requested Portion:

57:5 Q. Did you -- did you tell Dr. Salman that his idea
6 to trend CKs to monitor compartment syndrome was a medical
7 en-or?
8 A. No. I don't believe I confronted him. There
9 were many of the doctors, again, when you talk to them
10 face-to-face that say, He doesn't have compartment
11 syndrome.
12 Q. Did you talk to anyone face-to-face and say that
13 Wenjia Zhai does not have compartment syndrome?
14 A. Multiple doctors. Again, three and a half years
15 ago, I can't remember their face. I remember
16 conversations with them.

8.)

Plaintiff's Requested Portion:

57:19 Q. Do you remember which physicians you had these
20 conversations where you said, Wenjia Zhai does not have

5

21 compartment syndrome?
22 A. I believe Dr. Schneider and Dr. Salman and,
23 again, down the line, Dr. Hawkins.

Defendants' Request for Additional Portions:
Defendants request the following additional portions be read into evidence:
24
Q, Okay , Js it fair to say that you were the
25 person that w waki ng the determination that Wenj ia Zhai
as
':,7

does not have COJllflarbnent syndrome and that you told that
2 to many of the physicians caring for Wenjia Zhai?
3
A, No. It was a discussion, and all of them
4 believed -- again, the discussion was we did not feel he
5 has ccrnpartment s yndrcme ,
l

(57:24-58:5)

9.)

Plaintiff's Requested Portions:

58:11 Q. Okay. So you had multiple conversations in the
12 ICU with several of the physicians, and you would make the
13 statement, Wenjia Zhai does not have compartment syndrome,
14 true?
15 A. I don't know if I would make that statement that
16 way. I believed that I would say, I don't feel Mr. Zhai
17 has compartment syndrome, and somebody would say, I don't
18 feel also. It was not an argumentative process going on
19 there, so it was a group discussion, again, feeling that
20 that was a very low possibility, very low.
21 Q. Did you have that discussion with the doctors
22 more than three times?
23 A. Again, it would be hard -- Several times.

6

Granted

10.)

PlaintifPs Requested Portions:

59:2 Q. There would be a group of physicians talking
3 about Wenjia Zhai, the subject of compmtment syndrome
4 would come up, and then you would make the decision or the
5 statement, I believe he does not have compartment
6 syndrome; is that true?
7 A. Several -- direct meetings, we may have talked
8 to one guy -- one doctor -- one side of the table and then
9 another one is doing something on the other side of the
10 table and, again, discussed that. Again, not in length
11 because it was essentially deemed, again, not a prio1ity
12 list because it wasn't much of a consideration for him.

Defendants' Request for Additional Portions:
Defendants request the following additional pmtion be read into evidence:
13

Q.

And the reason it -- what was the reason why

14 ccwpartrrent syndro:ne was not much of a consideration fr,r

15 Wenjia Zhai ?

16

11
18

19
20
21

22

He didn't fit the cl i~i cal i ndications for it .
Q, A w were the cl frical indicatio:15 you ;,ere
nd hat
,
looking for?
A. Again, looking for deformities of the legs,
t ight cauparbnents t o palpation, agah, any t:::aur.ia er any
tight, hard comparbnents in his legs . He just d.:.d not
have t hose.
A.

(59:13-22)

11.)

Plaintiff's Requested Portions:

61 :2 Q. Did you document anywhere in the chart the
3 clinical findings that would lead you to believe that he
4 did not have compmtment syndrome?
5 A. Those are all negatives, so I wouldn't document

7

Granted

6 negatives.

12.)
61 :7

PlaintifPs Requested Portions:

Q. Okay. And did you document in the chart

8 anywhere your opinion that he did not have compartment
9 syndrome?
10 A. Again, in my clinical judgment, it wasn't -- it

11 was so low that it was not documentable, if that's a
12 word.

Defendants' Request for Additional Portions:
Defendants request the following additional portion be read into evidence:

19

Q.

Did you i ntend or expect the other physicians to
20 reduce the level of suspicion --

21

A,

No,

of co~rtment syndrome because of your
23 ref€ated statements that he does not have ccrnpart.rrent
24 syr.drcme?
25
A No , E
.
verything i n rr.ed.icine changes , so -22

Q,

--

61

everybody has an eye, and if something changes, it w
ill
2 t rigger a response from them.
(61 :19-62:2)

13.)

PlaintifPs Requested Portions:

63:10 Q. So compartment syndrome was on the problem

11 list?
12 A. On Dr. Salman's problem list.
13 Q. Okay. And was it on your problem list?

14 A. My problem list was for 01ihopedics. It's more
15 of a consideration, but if it's not really suspected, it
16 wouldn't be written down as a problem.

8

Granted

Defendants' Requested Additional Portions:

Granted

29
Q, (By Hr , Watsor.) Did Dr. Sal'l'Bn state that r.e
,1 wanted to watch for signs of ccrnpartment syr.drcmf:?
22
A. Frcm this note here (inclicati.ngi, he talked
13 about CKs, but as we talked about befcre, that's ~ot
21 r,ossible in this situation.
25
Q, And wha t are the reasons why the CK elevation is
63

l not rossible as an explar.a tion for ccn'Parbrent syr:drare?
,,
n,
In this situatio:i?
Q, Yes,
A, The overall traUIM to t hf: patient w injury to
ith
his J11L:sculoskeleta! system w c,11.,se l:c1ge elevati.,ns .:.n
ill
the CKs, and it's more of a renal issue. You can't s"'y
7 once the CK -- only goes this high fo~ a scapula fracture,
the Cri only gQ€s this high :or a proxi%1 hurrerus
9 frac ture, the CK only goes this hig:1 fo: chest injuries,
10 the CK goes only this high for corrpartment syndrcmes,
l l 8verything is muddled together, CK -- trying to designate
12 one level in the face of overwhelming ske:etdl traur:ia rray
lJ l:e frivolous ,

(63:20-64:13)

14.)

Plaintiff's Requested Portions:

68:10 Q. Okay. Did you ever document any findings to
11 rule out compaiiment syndrome in your notes?
12 A. No. I would not have put any negative
13 findings.
14 Q. Did you ever put anything in the notes as to
15 your medical opinion that he did not have compartment
16 syndrome at any time when you were taking care of him?
17 A. No, due to the fact that he just didn't present
18 that way.

15.)

Plaintifrs Requested Portions:

70:21 Q. (By Mr. Watson) Was eliminating the compartment
22 syndrome an important pati of your care?
9

23 A. No, because again we did not feel -- I did not
24 feel he had compartment syndrome. To mentally try to
25 eliminate something that he doesn't have, it wouldn't be something that you would do.

16.)

Plaintifrs Requested Portions:

22:23 Q. Okay. Do you believe that the material that has
24 been supplied by the American Board of Orthopedic Surgeons
25 to the membership is considered reliable medical
authority?
2 MR. ERNST: Object to the fonn. Not specific. Granted

Granted

3 MR. VIPOND: Object to fmm and foundation.

--No showing of what specific literature is
being referenced, the author, the date, etc.

4 A. What mate1ial? What material are you saying?
5 The meetings that I went to?
6 Q. (By Mr. Watson) No, the material that is
7 usually provided by the American Board of Orthopedic
8 Surgeons.
9 MR. ERNST: Object on fmm and foundation.
10 Vague.

Granted

Granted

--No showing of what specific literature is
being referenced, the author, the date, etc

11 A. I would say that what they provide is basic.

Defendants' Requested Ruling:
Defendants request the Comt to sustain the objections (23 :2 & 9) as vague and ambiguous
concerning "reliable authority" and "material usually provided" and strike the answers.

Granted, see above
17.)

Plaintifrs Requested Portions:

38:2 Q. (By Mr. Watson) Were you trained to consider
3 high-velocity trauma as it relates to compaitment
4 syndrome?
5 MR. ERNST: Object to fonn and asked and

Overruled

6 answered.
10

7 A. Again, I can't recall any reason why they would
8 say you have to be extra special vigilant with high
9 velocity versus the average person on the street that fell
10 off their bicycle. You would try to treat both patients
11 the same way with observation.

Defendants' Requested Ruling:
Defendants request the Court to rule on the objection (38:5). The question is vague and ambiguous
and was asked and previously answered. (11: 14-16)

18.)

Plaintifrs Requested Portions:

46:16 Q. When did you make the decision that Wenjia Zhai
17 did not clinically present any suspicion to you of
18 compartment syndrome?
19 A . There is no one day that comes out. It's a
20 process. You do look at the patient, their likelihood
21 depending on where the fractures were or body part, but
22 everything evolves, as you're looking at an orthopedic
23 patient, day-to-day. So no one day. It's a matter of
24 observation.

19.)

Plaintifrs Requested Portions:

47:17 Q. Did you examine both arms?
18 A. Did I examine both arms when?
19 Q. Each day when you were thinking about
20 compartment syndrome.
21 A. Again, I can't say that remembering I'm going in
22 there thinking -- each day, I would look at his splints,
23 his arms, make sure he had good capillary refill, and then
24 make sure that there wasn't anything else that I would
11

25 think of.

20.)

Plaintifrs Requested Portions:

50:19 Q. And was your scope of practice the fractures
20 sustained by Wenjia Zhai?
21 A. C01Tect.
22 Q. And would it be fair to say that your scope of
23 practice also included the 1isk of compartment syndrome?
24 A. Generalized scope of practice or are you talking
25 about -51:1 Q. In the care ofWenjia.
2 A. Delegated to me or just everybody? It wasn't
3 delegated. It was I understand the compartment syndrome
4 and its relationship to musculoskeletal injury if that's
5 what you're saying.

Defendants' Requested Portion:
10

Were you of the belief that you r.eeded to l:e
li ordered to lcok for coopartment syndrome before yo'J. would
12 start to look?
13
A. N
o.
Q.

(52:10-13)

21.)

Plaintifrs Requested Portions:

48: 1 Q. Did you look and examine the legs each day?
2 A. Yes, I did.
3 Q. Okay. Did -4 A. For the first several days.

Defendants' Requested Portion:

12

Defendants also request the following brief portions be read into evidence at the beginning of the
reading of Dr. Cahoy's deposition testimony at trial in order to provide context concerning Dr.
Cahoy's professional background:

Granted

23
24

Q
.
A
.

25

Q,

A
.

1

Coctor, would you state your name, please?
Philip M. Cahoy ,
And what is your profession?

I 'man orthopedic surgeon ,

(4:23-5: 1)

H

Q,

..

15

~

16

Q,

17

A,

18

Q,

19

A.

20

Q
,

21

A,

22 clinics
Q
,
23
24
A.
Q
,
25

Doctor, where did you go to rredical sc~ool?
University of Nebraska Medical Center.
And w did you graduate?
nen
1990 ,
And you did a residency in orthopedics?
Correct ,
Where was your residency p:rfomed?
The University of Wisconsin, hospitals ar.<l
in Madison 1 ~lisconsin,
How mmy years was that prcgca.m, D:;:::tor?
From 1990 to 1995 .
During that residency program, did you have any

specialized trainings in the subject of orthopedics?
2
A. That w -- the residency was orthopedics.
as
3
Q. Ok.ay, And it was a five-year residency?
A Correct,
.
l

(8:14-9:4)

12

Q,

(By M , Watson)
r

13 certified orthopedic
14

A,

Okay . Are you a board

surgeon?

Correct.

(15:12-14)

13

DATED this 22 nd day of March, 2018.
WENJIA ZHAI, Individually, Plaintiff,

Isl Steven M Watson
John F. Carroll, #2381 1
Steven M. Watson, # 16075
Watson & CatTOll, PC, LLO
160 Centre Place
2809 South 160th Street, Suite 409
Omaha, NE 68130-1755
Phone: [phone]
J ohn@watsoncarro 11.com
[e-mail]
Attorneys for Plaintiff

PHILIP CAHOY, M.D., an individual, and
CENTRAL NEBRASKA ORTHOPEDICS &
SPORTS MEDICINE, P.C. , a domestic professional
corporation, Defendants,

Isl Jeffeev A. Nix
David D. Ernst, # 17292
Jeffrey A. Nix, #23842
PANSING HOGAN ERNST & BACHMAN LLP
10250 Regency Circle, Suite 300
Omaha, Nebraska 68114
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

14