Medical Malpractice Deposition: Expert Witness on Vascular Injury Claims

[00:00:00]here begins tape one of dare uh dr gary rubin take it in the matter of kevin tolson versus st agnes healthcare inc at all in the circuit court for baltimore city case number 24-c dash today's date is march 6 2014.

[00:00:24]the time on the video is 105.

[00:00:27]the video operator today is kim johnson this video deposition is taking place at one one one two zero new hampshire avenue silver spring maryland council please identify yourselves for the record rodney i'm gaston and i represent the plaintiff kevin tolson danielle dinsmart president on behalf of defendants prudence jackson md krupa shaw pa and maryland provo one medical services the court reporter today is nancy barker the court reported today is nancy barker on behalf of mayoral legal solutions she will swear the witness and we can proceed would you please right here you solemnly declare or affirm on the penalty of perjury that the testimony you shall give will be the truth the whole truth and nothing but the truth i do good afternoon doctor could you please state your name and business address sure gary g-a-r-r-y d-reuben r-u-b-e-n-11120 new hampshire avenue suite 201 silver spring maryland 20904 doctor the reason i've asked you to appear here today to take your deposition is because you've been identified by one or more of the defendants in this case as a expert who may render opinions in this case and i'm here today to find out generally what opinions you intend to give in this case and i presume you've had your deposition taken before i have if at any time i ask you a question that you don't understand please stop me tell me you don't understand and i'll try to rephrase it otherwise if you don't do that we'll assume that you've understood the question and you've answered it accordingly also if at any time you want to take a break just let us know the doctor i want to hand you what's been marked as a deposition exhibit number one this is the amended notice for your deposition here today attached to that notice is a list of items we asked you to bring with you to your deposition today can you tell me what if any items you brought with you and if they're contained on a computer you can also reference those as well well i in all fairness i don't remember seeing this but i can tell you what i have here um you just want to go through these and tell you what i have and what i don't have well um pretty much what you've brought with you i think if we go over with what you brought with you uh okay some of that we've objected to so if you just like i brought my cv which i've given to you and i've got the medical records and depositions uh and other things that i've reviewed pertinent to the case is it possible for you to list um the items that you reviewed in this case i'll do my best it's i'm gonna have to go sort of slowly because i've got to get each one out but i have the plaintiff's designation i have a copy of the complaint certificates of qualified experts i have medical records from saint agnes hospital and the university of maryland medical center uh deposition of kevin tolson uh the baltimore county ambulance report um uh let's see deposition of linda morgan dr sarkar i'm sorry not that joshua that's dr sarkar but uh mahad malik no that's not deposition i believe of dr larson let's see jeffrey nicholson pa uh gregory sachs sharon craddock stacy tolson i think let me double check that no i'm sorry that's not a deposition that was a picture i think um and then i think the deposition of dr collier i believe and dr black i'm pretty sure that's what i've reviewed okay and it's possible i've missed something if i have i apologize okay doctor were you sent any radiology studies i don't no i don't believe i was do you plan on commenting on any of the radiology studies in this case no okay and rodney as i offered before the deposition we'll send you a comprehensive list of everything that we sent dr rubin okay um thank you dr doctor did you read actually read all the items that you just read into the record yes at one point or another i did okay all right were you shown any animations i think i did receive those yes now that you mentioned i believe i have the animation of the accident as as it could have or would have occurred and how about animation showing a mechanism of injury a rotating knee with torn ligaments in it and a picture of a back of a leg with um uh an animation depicting blood flowing down the back of the leg at least some of that if it was all together i would have seen it all okay um have you reached any opinions one way or the other as to whether or not there's animations fairly and accurately depict what they show objection i would say i would say they are suggestive of one way i don't think anybody will ever in my opinion will ever really know exactly what happened in terms of the forces and the rotations of the knee okay and how about the actual uh knee image that shows uh the destruction of the ligaments in his knee objection do you have any opinion one way or the other whether that's a fair and accurate depiction again i think i'm sorry again i think that try to depict it at this point in time based on the information is just an educated guess and i would certainly not think that anybody could adequately or within a reasonable degree of medical certainty really know exactly what happened with the knee based on the evidence i see in the records but i don't have an opinion on exactly what did happen okay and the same with respect to the uh image that shows um the arteries and it attempts to show the blood throwing flowing down through the arteries i don't remember them well enough to tell you at this point okay okay doctor do you plan on giving i'm sorry doctor you've testified in medical malpractice cases before correct yes sir and you're familiar with opinions that have to do with the standards of medical care correct correct do you plan on giving any opinions on the standards of medical care by any of the medical providers in this case i guess the only way i can answer that is generally speaking no certainly if one would ask me as a vascular surgeon what i would have expected from an emergency room physician or pa with regard to or even nurses with regard to what i would expect as a vascular surgeon i'd be willing to proffer those opinions but in terms of actual standard of care opinions about their work not really okay all right and doctor you were kind enough to provide us with a copy of your cv which has been marked as exhibit number two is that a current cv of yours yes it is okay thank you and doctor are you still earning approximately thousand dollars a year for testifying in medical malpractice cases such as the one we have here with mr tolson objection no i would say it's more a route along the range about a hundred thousand dollars give or take hundred thousand per year yeah 100 maybe even 120 somewhere in that range and you know for how long you've been earning that amount of money for testifying in medical malpractice probably about four or five years now okay and you know what the percentage of the time that you spent in your forensic work as it relates to work for defendant medical providers versus the injured patient oh it's about 70 defended work and 30 plaintiff work okay and doctor what field of medicine are you board certified in i'm board certified in surgery is that general surgery it says surgery i if you want to equate it that way that's fine but the board certification says surgery okay is there any specialized board certifications for vascular surgery there is okay uh are you certified in vascular surgery no just surgery okay um does your medical practice involve vascular surgery it does okay can you tell me um in the last six months can you give me an idea of the types of surgical procedures you have performed sure i do carotid surgery carotid artery surgery i do surgery on the arteries of the lower extremities bypass operations and angioplasties and thrombectomies i do a number of hernias gall bladders abdominal surgery colon resections small bowel resections breast surgery head and neck surgery lumps and bumps amputations i mean i do most of the bread and butter of some abdominal aortic aneurysms and popliteal aneurysms that would just encompass some of it but certainly not all of it okay um you said a mouthful can you give me an idea percentage-wise how many what percentage of your operation has to do with gallbladder surgeries abdominal surgeries carotid surgeries vascular surgeries no i mean i could give you a general idea of vascular versus general if you can do that for me yeah i mean it runs a little more vascular than general having said that there are also things that cross into both areas for example vascular access such as ports and catheters even dialysis access some general surgeons do it some vascular surgeons do it but overall i would say that i do a little bit more vascular work than i do general surgical work but it it's not far off of 50 50.

[00:12:27]uh when's the last time you performed a foot amputation well when you see a foot amputation if we include a leg amputation either one within the last two three weeks and can you tell me over the last five years how many times you performed um a lower extremity amputation i probably do about 20 a year so in five years probably a hundred or more okay and can you tell me how many times you have performed surgeries to repair injury to a popliteal artery well specifically for traumatic injury to the popular artery i would say over the years 20 or 30.

[00:13:06]and how many years have you been practicing as a surgeon about 27 years averages about one a year one or two a year at most yeah i mean it's not a common injury it's a very uncommon injury okay do you um treat knee dislocations not to not specifically i mean i may be involved with this apoptial artery and your injury if there's a knee dislocation but specific to knee dislocations generally i wouldn't be involved because both of the most of them don't involve the vascular system okay and ca of the popliteal artery surgeries you performed i think you said between 20 and 30. i said repair of trauma trauma i've done hundreds of popliteal artery surgeries okay let's talk about the trauma surgeries 20 to 30. can you do you know of those 20 or 30 how many were the result of a knee dislocation probably would say about a third of them for from knee dislocation and the others were well i'm sorry a third of them went from some kind of knee injury traumatic usually blunt force trauma whether it was a knee dislocation i don't know that i always know whether it is or it's not the others would be penetrating or other injuries to the to the artery and generally speaking how do you become involved in the traumatic popliteal artery injury repair generally speaking an orthopedic surgeon who is uh called to see the patient or generally in the operating room either is operating on the patient generally reducing the um the dislocation when he dislocates it you ex you hope and generally expect that the art if the artery has lost its pulse because it's pinched that the artery pull that the pulse will come back in the foot if however after relocating the knee the pulse does not return to the foot then there's a problem for which i get consulted okay and do you actually go to the emergency room at the hospital well usually i'm called to the operating room at the hospital and what hospitals do you currently operate currently at holy cross and do you hold any uh administrative or staff positions at holy cross yes and what are they doctor i'm president of the medical staff i'm chief of the subsection of vascular surgery and i'm on a number of committees okay doctor do you believe that there are any medical articles journals or textbooks that are reasonably reliable for the medical issues involved in this case not that i'm aware of now do you intend to refer to or use any medical articles journals or textbooks and support over an explanation of any of the opinions you intend to give in this case no not at this time doctor can you tell me in your experience is a knee dislocation a potentially limb threatening injury on rare occasions it can be okay and uh have you um experienced cases where there was an eloquent knee dislocation with a uh injury to the popliteal artery yes okay and can you tell me from your experience how many knee dislocations that occur outside the hospital are reduced where the bones return to the normal anatomical position before the patient arrives at the hospital i have no idea okay and do you know the percentage of knee dislocations that result in injuries to popliteal arteries it's a very low percentage but i don't know the numbers okay doctor um i believe you testified that you read dr sarkar's deposition testimony i'm sure i did okay and he's uh uh do you know dr sarkar no okay he's a vascular surgery he's an actual vascular surgery surgeon that actually uh amputated mr tolson's foot at university of maryland hospital is there anything about his opinions that stand out to you to the point where you disagree with them objection i don't recall offhand i have not read his deposition in at least a month or so so i can't recall anything that i would say right now no okay did you take any notes when you read any of the medical records or any of the depositions in this case no okay and you've not have you sent any correspondence to uh defense counsel with respect to any of your opinions no sir okay can i ask adam kirk to mark this is and doctor do you remember when you were first contacted by defense counsel uh to act as an expert in this case no okay do you know when you reached your opinions in this case not specifically no okay um i have a letter from defense counsel miss dinsmore dated august third august 15 2013 where she identified you as an expert witness in this case do you believe you reached your opinions as of that date objection i don't recall okay what i'm going to do i'm going to show you the letter that defense counsel sent me and on page five item number four it lists you as an expert who's going to testify the case and i want you to read the paragraphs carefully and with respect to the paragraphs that indicate the opinions that you're going to give i just want to know if you still intend to give those opinions and you can go over them one by one if you'd like and if any of your opinions have changed since that just let me know too i'm sorry the cell phone we're using is not that great well i'm gonna have to sort of take these one at a time yes doctor please do so so if that's okay because otherwise it's just gonna be very difficult um starting with uh paragraph three it does say that and i'm going to paraphrase a little bit uh that i am going to testify with regard to the standard of care as a from the perspective of a vascular surgeon called to the emergency room as a consultant and so i would say yes i'm going to testify that had i been called either by the emergency room or to the emergency room and had been told what had been done that from a vascular perspective i would have said it was appropriate um so that would be that um what what what's appropriate i'm sorry evaluating the pulp from a vascular perspective the evaluation and care rendered with respect to the vascular system of that patient and by all the providers that performed the vascular assessment in general that the care provided was appropriate based on the information contained in the records which i believe would have been would have been communicated to me i want to do do you plan on okay that from a a more specific perspective there are many persons who apparently were involved in the care of mr tolson is it your opinion that all of them who were involved in the care who performed a vascular assessment of mr tolson performed a proper vascular assessment no you're that's not what i said okay and i'll say it as clearly as i can the patient's vascular system was assessed in general appropriately three different people found that he had pulses in his foot from a vascular perspective that would have been an appropriate vascular evaluation such that i would have then felt that the patient had been assessed appropriately in general and that there was no need no need for further vascular work up or evaluation so is it your testimony that if you have been called for a vascular consultation on mr tolston in the emergency room on december third two thousand nine that you would have relied upon the information provided to you by the individuals who had previously performed the vascular assessment of mr tolson found that to be adequate and not performed your own individual vascular assessments not what i said objective say it again if i'm called to do a vascular consultation i go to the hospital and do a vascular consultation what i just said to you is that based on the information given to me from a vascular perspective the patient's vascular system was in general assessed appropriately and the actions taken based on that were appropriate if i get called to do a console i come in and do the consult and obviously if i shouldn't say obviously and if i come in into a console i'm going to do my own assessment those are two different things okay siri opinion is is limited to the vascular assessment that was performed by the staff at saint agnes hospital on december third two thousand correct i which would which would just yes i mean the answer is yes i'm not worried about the orthopedic assessment that's not my area of expertise okay you can continue doing okay um let me see where i was okay okay okay again with respect to the next paragraph as i said it didn't suggest a vascular injury and i would agree with that um i would not necessarily i think the the fifth line down i would not opine the diagnosis that a knee sprain was reasonably based i mean that's not something i would comment on so i will simply say that i would leave that up to the orthopedic surgeon as to whether that was a reasonable diagnosis at that point in time with respect to the line that begins also i would say that it did that what they did in not ordering any uh diagnostic testing from a vascular surgical specialist i would certainly opine about i'm not going to opine whether an orthopedic orthopedic surgeon should have been consulted that's not my area um and then the last sentence is certainly reasonable there would have been no reason upon discharging him to have him seen by a vascular surgeon um the final paragraph i would agree with everything let me look at the last sentence i apologize up until the last sentence okay it talks about the mechanism of injury i wouldn't i'm not going to talk about the mechanism of injury uh in terms of the orthopedic injury but i will talk about what happened to the artery so just to clarify that i'm not going to be opining whether this was a twist a turn a dislocation or or what but i will be identifying in my opinion to a reasonable degree of medical certainty what happened to the vessel that subsequently caused it to thrombose and when it thrombosed doctor there's there's one sentence here in that last there's one sentence here in that last paragraph that i want to talk to you about is it your opinion that even if a vascular injury had been detected on december 3rd 2009 while he was at the hospital more likely to not mr tolson's leg could not be salvaged given his presentation and the nature of his injury i think it probably could be worded better because that may be a little misleading first of all i don't think a vascular injury would have been detected at the time he was at the hospital that day if there had been some thought that there might have been some vascular problem and imaging studies had been done they likely at that point would not have shown anything he would subsequently have developed the condition that he developed and likely thrombosed the popular artery abruptly and that more likely than not based on that occurrence he still would have lost the leg because of what happens in an otherwise healthy patient with non-arteriosclerotic disease who abruptly obliterates the population so i think certainly if you were prescient and you repaired this popliteal artery because before there was any problem noted or detected or could be detected sure you could have saved his leg but given how it would have occurred i think his leg more likely than not was going to be lost okay so if i if i understand your opinion if and we're going to assume that he had an injury to his popliteal artery for my next question and that was able to be detected in the emergency room at saint agnes hospital on december december 3rd 2009 assuming all those facts to be true do you believe if there was a vascular intervention at that time that more likely than not his leg could have been saved objection if there had been a vascular intervention at that point yes his lay could have been saved however and just as a point it would not have been indicated at that point in time and to what extent would the injury to the popliteal artery have to progress in order for a vascular intervention to have been appropriate while he was in the emergency room on december 3rd 2009 objection of form well i mean it didn't happen so i don't know how i can possibly answer that question there's nothing that occurred in in the hours that he was in the emergency room that would have prompted a vascular intervention do you believe mr tolson sustained an injury to the intimal flap of his popliteal artery i think he injured the wall of the vessel i don't know that it was specifically the animal flap but he injured the wall of the vessel and what are the types of injuries to the wall of the vessels that can occur intimal flap being one is or are there others sure you could have a full through penetrating injury you could have an injury to the adventitia and media of the artery that is a compromise of those tissues with trauma um you can you could injure all three layers of the vessel so there's a variety of things that could happen that can either weaken the artery or cause a flap in the artery or cause it through and through injury to the artery okay have you eliminated some of those injuries through and through artery injury a dissection type of injury are you able to eliminate some of those injuries well i don't know it's more of an elimination i think i believe i know what happened to this patient based upon the the uh subsequent operative findings and what injury do you believe he sustained to his popliteal artery other than an injury to the wall of the vessel can you be more specific sure i think he likely somehow traumatized the wall of the vessel weakened and had had a degeneration of the media and adventitia of the vessel and over uh the hours on the later after discharge he likely developed a pseudoaneurysm of the artery and that suit and we know that aneurysms and pseudoaneurysms of the popliteal artery are their major risk is acute thrombosis and loss of the limb so i believe that susquit was discharged to develop the pseudoaneurysm sometime on the fourth he uh abruptly and acutely late on the fourth or early on the fifth uh he abruptly occluded the vessel uh had complete stasis and vascular insufficiency of the extremity and was unable to be uh revascularized and lost his leg do you believe that the initial injury to the popliteal artery that mr tolson sustained occurred on december 3rd 2009 when his leg got caught in defense i do okay right now do you believe that mr stolson sustained any other traumatic injury objection to his popliteal artery after he left saint agnes hospital on december 3rd 2009. i mean not that would have not that i'm aware of or that changed the outcome of this case i mean except obviously for the surgery which is a traumatic injury in a sense okay um so we have the continuum of the initial injury on december third at degeneration of the artery itself developing into a pseudo-aneurysm and then a thrombosis resulting in a blood clot well a thrombosis is a clotting of the vessel okay so i mean i understand all right doc um can you tell me one time frame what time frame the pseudo-aneurysm developed sure probably with within a few hours of his discharge um it would have been possibly detectable initially and for a few hours you likely would not have been able to detect it with any imaging studies after his discharge he begins to enlarge this vessel and enlarge this pseudo-aneurysm and over the next several hours as it's enlarging it becomes at risk for thrombosing which it likely did late on the fourth or early on the fifth can you give me an hour window of when the thrombosis occurred i mean i'm trying i think he came to the emergency room back to the emergency room i think at 11 a.m if i'm not mistaken 1109 a.m i don't want to confuse my times i have to unfortunately i think you're i think you're actually accurate yeah i think it was 1109. i believe so i would say that likely within 12 hours of that period of time is what he would have thrombosed so we'll say 11 o'clock the prior evening and obviously he said something was wrong so we'll say between 11 o'clock the previous night and 4 or 5 in the morning would be a rough estimate and would it be fair to say that you're unable to pinpoint any specific activity or action that resulted in the thrombosis no it's it's usually not like that it just happens when it happens okay um do you have an opinion whether mr tolson i mean this is an orthopedic question but perhaps you can answer it with your expertise do you have an opinion whether he suffered a subsequent dislocation of his knee after the initial dislocation on december 3rd 2009. i don't have an opinion okay um do you believe that the injury to mr tolson's popliteal artery recurred as a result of a posterior dislocation of his knee when his knee got trapped in the fence i have no idea and i don't have an opinion on that i just know he had trauma to his artery can you tell me what are some of the signs and symptoms a person experiences in their lower extremity when there's a decrease of blood flow into the that extremity what what can a person experience well when you see a decrease in blood flow you may have no symptoms at all uh you may claudicate if there's a decreased amount of blood flow um if there's a if it progressively slow um onset of vascular insufficiency you may begin to have some rest pain in your toes along with what we call dependent rubor they turn bright red you may develop gangrene in the tips of your toes in this case none of that applies i'm talking about more subtle symptoms such as paresthesia parasthesis is not a symptom of vascular insufficiency it's not a sign or symptom absolutely not okay so feeling pins and needles does not indicate a loss of blood supply to a lower extremity no okay how about numbness numbness can but it's usually associated with excruciating pain in the same area so in other words if you have a severe critical acute arterial insufficiency of a lower extremity your foot may be both would be numb but it would also be exquisitely painful how about an inability to move the foot that would be a rather late complication because you can still move your foot with proximal muscles and even in the upper calf the muscles would still be patent and you can still move your foot around with the proximal vasculature you may have inability to move your toes would be a specific symptom of critical arterial insufficiency below the knee but you could still move your foot because movement of the foot comes from proximal muscles uh in the tibia anteriorly the tibialis band and posterior muscles like the soleus and gastroc and they get blood supply from above and so commonly even somebody with acute arterial insufficiency can move their foot they just can't wiggle their toes so no usually that kind of a problem would not be art would not be vascular it would be neurologic can a person with acute arterial insufficiency still present with a palpable pulse in his foot no unless you're talking about throat a flank major throttle thr phlegmasia dolans and that's not this situation now do you have any idea what caused the numbness in mr tolston's leg i do and what is that well he clearly had a significant knee injury and the the um nerve supplying sensation to the foot comes right adjacent to the artery i have no doubt he's suffered a stretch of the nerve and an apraxia so that initially he had a nerve problem for example when you sleep on your arm people commonly think it's because you wake up with your arm numb and then you get paresthesias people think that's because you've blocked off the artery and in fact that's not the case what you've done is crimped the nerve and you get a brief neuropraxia that you then get these paresthesias pins and needles as your as your hand wakes up there's also some numbness um and that's because with the arm it's up in the shoulder area that is i believe what happened here because initially he had complained of some numbness although it was never tested appropriately so we don't really know whether he was in sensate and there's a difference between a patient saying they have some numbness and ins and incen being insensate on physical examination but in either case it based on further evaluations which showed him to be neurovascularly intact it's clear to me that he had an apraxia of the nerve and that after some time that began to come back do you know how the medical providers tested them for sensation i mean all i could say is that they're that the only exams i see report being neurovascularly intact and that would presume that they did a sensation test and as i recall from depositions they did test for sensation and how does the provider test for sensation usually you touch the touch the toes or the foot and see if the patient can feel you touching them and tell you where they're touching them you don't do a hard or soft test i don't i just see if they can feel me touching them okay and if a patient can't feel you touching their foot in a traumatic injury such as settings such as mr tolson had would that give rise to suspicion of a injury to an artery not with intact pulses no okay and if the pulses were not intact would that give rise to a suspicion for a arterial injury if i had no if i could not palpate a pulse in the foot and they were completely numb and complaining of severe pain then i would be concerned about a vascular injury and are some of the symptoms that mr tolson had in the emergency room consistent with the vascular injury objection um i would say not really no i mean he had paresthesias which is not consistent um he didn't have the kind of pain you'd expect from somebody who had obstructed their their popliteal artery he had palpable pulses i mean i'm sure we could pick and find something that might be seen in a patient with acute arterial insufficiency but certainly in general no his symptoms were not consistent with it well his pain was at a seven out of a 10. yeah but i perceived that pain was in his knee and there was never any report of severe pain in his toes or foot okay and if his pain went up from a set amount at a 10 to a 9 out of 10 would your opinion still be the same yeah i mean i think i just answered the question pretty well okay and do you believe he sustained an injury to the nerve that runs along the back of the knee next to the popliteal artery at the same time the popliteal artery was injured i'm sure he suffered a stretch injury i don't think it was ever torn or obliterated but i have no doubt he suffered a stretch injury to the nerve you know are you basing your opinion what are you basing your opinion on that the thrombosis occurred 12 hours prior to his readmission to saint agnes hospital okay beyond what i've already told you on his admission readmission to saint agnes hospital he had a myoglobinus 1649 had he had a cl had he had ischemia of his muscles for more than several hours his myoglobin would have been in the 20 to 30 000 range um his creatinine was 1.5 indicating early and mild renal insufficiency and returned back to normal with minimal rehydration and it returned very rapidly indicating extremely early atn secondary to moderate myoglobin increase had he obliterated his artery on the third he would have had a creatinine well above 2.5 maybe even higher and he would not have recovered that quickly from atn finally in the operating room dr wilkerson does report that his muscles are fairly viable if he had been ischemic from a popular artery occlusion for more than 24 hours his his muscles would have looked great pale and would not have responded to electrocautery so everything about this case suggests that his a poplitautary occlusion and subsequent um vascular insufficiency to his lower leg had to be had to be less than um um 12 hours in length 12 15 hours in length in your opinion did he sustain any reduction of the flow of blood in the popliteal artery down to his lower extremity while he was in the emergency room at saint agnes hospital no okay i'll let the court reporter read it back in your opinion did he sustain any reduction of the flow of blood in the popliteal artery down to his lower extremity while he was in the emergency room at saint agnes hospital answer no why do you hold that opinion doctor because i as i said to you there's there's no he has a poppable pulses in order to obliterate palpable pulses you've got to have about an 80 percent reduction in the luminal area now there's any evidence that he had any reduction in aluminum area in fact he developed a pseudo aneurysm and abrupt abruptly thrombosed the vessel later on so i mean i think his flow in the emergency room throughout this period of time was normal is that from the presence of palpable pulses is that why you hold that opinion well it's that plus as we've already talked about the subsequent findings would suggest that he didn't lose his first of all when you when you thrombose your popliteal artery you thrombosed it within minutes it's not a slow onset event in this kind of an issue so we've got to pick the point where this happened abruptly given the fact of the findings when he returned to the hospital which which i've already delineated i think pretty clear this could not have been had not have occurred until several hours before he came in since this is not a matter of narrowing the vessel it's a matter of a an aneurysm formation with normal flow through it and then an abrupt occlusion there there would have had to have been normal flow in the emergency room now yes the palpable pulses almost essentially tell you that there can't be any there has to be at least um a 20 to 30 percent peyton lumen to have a normal pulse in the foot uh but i don't think there's any reason to suspect that he slowly obliterated had obliterated the lumen such that it was 20 or 30 percent of the emergency room and then occluded later that's not the mechanism here so when he developed a pseudo-aneurysm at that time it's your opinion that there was a termination of the flow of blood distal to the popliteal artery no a pseudoaneurysm means there's a there's a dilatation through a false lumen through a false opening or a rent in the vessel that does not encompass all three layers it could encompass one layer but not all three but there's still continuous flow through that now as people can walk around with pseudo-aneurysms of various areas because we get them all the time it does not inhibit or narrow the blood flow below the pseudoaneurysm surah aneurysms aneurysms are not obstructing lesions at all i'm sorry i thought you said that when he developed a pseudo-aneurysm that interfered with the flow of blood south into his foot no he developed a pseudo-aneurysm and one of the risks of pseudoaneurysms is an acute thrombosis of the aneurysm and the vessels below so he develops a pseudoaneurysm for all that period of time there's normal flow somewhere within 12 hours of his arrival to saint luke's on the second admission second time is when he abruptly occludes that pseudo-aneurysm but up until that period of time there's essentially normal flow to the foot if he had a pseudo aneurysm and an intimal flap tear can the intimal flat tear then cause a partial clotting or partial disruption of the flow into the artery well the history of of animal flaps is that they either heal themselves or they abruptly thrombose so again with this respect to if we're gonna and i don't believe this was an animal flap injury but even animal flaps basically you've got normal flow until you get a major dissection and thrombosis of the vessel so by and large even with animal flaps it's you go from essentially normal flow to a complete occlusion of the vessel within within several minutes and has been your experience as a vascular surgeon correct and that's the study of the mechanism of action that i have come across okay now um did you you read mr tolson's deposition testimony where he had complained of a cold foot did you take that into account when reaching your opinions in this sure objection and how did you deal with that fact well in several ways first of all when mr cult tolson says he has a quote cold foot that within a reasonable degree of medical certainty has to be that let me go back for a second patients commonly come to my office and say i have cold feet and that can mean one of two things it can either means that they touched their foot with their hand and felt like they were holding an ice cube in their hand so their hand felt the coldness of the foot or as most of my patients do they have this perception that their foot is cold now the perception of your foot being cold has nothing to do with the vascular perfusion of the foot or even whether it's warm or cold it's more of a neurologic feeling now mr tolson i don't believe would have touched his foot with his hand because it would have been virtually impossible for him to do that he's overweight and he could have only touched it in one of two ways either doing a full deep bend either standing or lying down and getting his hand all the way down to his foot which given the fact that that's hard to do even for supple people much less obese people and the fact that doing it would have put strains on his knee i don't believe he ever touched his foot with his hand um number two the other way to do it is they draw their you if i were to ask you for example to touch your foot with your hand your your first instinct would be to draw your foot up to your hand as you reach out with your hand mr tolson was in no position to draw his foot up and and flex his knee would have been way too excruciating to do that based on whatever knee injury he had so his perception of his foot being cold meant he felt it was cold well he's had a neurologic injury to the nerve it's going to have all sorts of perceptual differences for him as a person it may feel like my foot's sitting in the snow for example but that's a feeling doesn't mean that the foot is actually cold or has no perfusion so that's part of it other part of it is when you have these kinds of injuries you're damaging all of the nerves that go to the lower leg that includes the sympathetics and parasympathetics and so it's very common to get vasoconstriction in the vessels such that while you have normal essentially arterial flow the skin like when we go out in the cold weather and we have a normal response to vasoconstrict our vessels that the skin may get cool and it may feel cold simply because the patient's vas are constricting from the sympathetic discharge so for all those reasons yeah i account i took that into account but it's clearly to me it it's not because of in a lack of it's because of vasoconstriction if somebody else felt his foot and and likely as what was sticking out of the covers um or or because he had significant vasocons he had significant vasoconstriction and one would expect his foot to feel cold i think his complaint of my foot feels cold had to be this perception that it feels like my foot's like in a tub of ice as opposed to i touched my foot because i don't believe he could have easily touched his foot how does a provider distinguish between a cold foot from vasoconstriction versus a lack of blood supply to the floor feel a pulse if you've got a pulse it's for vasoconstriction i have that in my office all the time elderly people commonly complain of cold feet and i bring them into the office and i feel their pulses and they've got strong pulses and i mean in the elderly population people tend as you get older to try to preserve your inner energy and their inner heat and they've asia constrict their extremities do you believe more likely than not that mr tolson's foot was cold to the touch because of vasoconstriction in this case objection to the improper foundation improper foundation there's no it's not been established it's what was called to the time we did several times i would say it this way if somebody touched his foot as there's a question as to whether somebody touched his foot with it without a sock on if they touched his foot it felt cool or cold than it would have been from days of constriction okay do you have an opinion why the um attempted repair by dr wilkerson of the popliteal artery did not work sure yes what is that well that's the problem with it we do a lot of revascularizations and as long we generally can do them because there's some flow maintained to the distal tissue such that the distal vessels remain patent and there is some profusion to maintain the tissue integrity the problem with the popliteal artery and this is the one artery in the body to to a lesser extent the brachial artery but the popular artery is the major um issue that in a patient who has not had arteriosclerotic vascular disease and therefore has not built up collaterals when you have brought essentially the blood flow to you all the tissues below your knee come through the popliteal artery the reason for that is there's very little muscle crossing the knee and most collateral vessels come through muscles so when you abruptly occlude your popliteal artery you get almost immediate and complete cessation of blood flow in the tissues and that results in a couple of things first of all you get abrupt severe arterial insufficiency and while we say we have this four to six hour window to revascularize an extremity before it's too late with respect to the popliteal artery it's probably not even that long because you have no perfusion the tissues start to die especially the nerves pretty rapidly but more importantly and the reason we lose these legs on such a high frequency is that when blood stops flowing completely it clots and so what you have is you have a completely static system below the knee there's no flow and within certainly minutes if not within an hour all of the secondary tertiary and small vessels and veins in the leg tend to clot and you can't reopen that you can't reopen it with the thrombectomy catheters we use we can't reopen it with the clot busters because these are in the smaller vessels we can't reach that's why abrupt acute occlusion of the popliteal artery is such a devastating injury and why by the time he got to dr wilkerson even though we could reestablish a blood blood flow and even sometimes using catheters we can even re-establish a pulse on the foot through the large vessels what we can't do is reestablish flow in the smaller vessels that have clotted are there any other portions of the medical chart that you've relied upon that you've already talked about in order to reach your opinion that this abrupt thrombosis occurred about 12 hours before he went back to saint agnes hospital on the fifth i know you mentioned the the myoglobin levels is there anything other in particular as i can sit here right now now i don't you know not not that i can sit here i think that that was pretty pertinent all those things i mentioned were the pertinent issues including dr wilkerson's operative report correct right well that's what i'm saying his findings at the time surgery all right doctor are you going to give any opinion as to what was the cause of the joint effusion in mr tolson's left knee that was found on the plane film x-rays taken on december 3rd 2009 well to the extent that i've certainly see my fear of number of knee injuries and how to myself whenever you traumatize the knee you tend to get fluid in the knee both blood and fluid i mean i'll leave it up to an orthopedic surgeon to certainly opine on more of my new details but i think most people know when you twist or injure your knee it tends to swell and that's fluid and and more likely than not did you believe that the effusion was caused by the injury mr tolston sustained when his leg got caught in the fence oh i would think so yeah um and uh the effusion that you talked about it's a combination of fat and blood objection i i would say most diffusions are simply fluid and some blood in the knee i'm not aware of fat being a major component to an effusion but i'm not an orthopod and the um the bleeding that made a part of the effusion was that from a bleeding from the popliteal artery or from other smaller blood vessels do you have any opinion one way or the other on that addiction what is your opinion it's from the tears and the tissues the trauma to the tissues i don't think the artery ever had if the artery had bled he would have pretty much bled pretty severely and it would have been rather obvious at the time that he was in the emergency room so the i mean this is what you always get you tear tissues you tear ligaments you you you get some bleeding and it takes very little blood to make a diffusion look bloody um did you note the vascular studies that were done on mr tolson's leg i'm not sure which ones you're referring to okay did are you relying upon the vascular studies that were done on his leg uh for any of the opinions that you're giving in this case i would think not okay and doctor for a patient to suffer a reduction in the flow of blood to his left lower extremity to result in a cold limb a cold foot can you give me an idea of the percentage of reduction that in your opinion you would have to have in order for that condition to develop objection no because it's so variable and we have patients who have very little blood flow to the feet but somehow because of vasodilation have a warm foot and have people who have normal blood flow to their foot and because of vasoconstriction have a cold a cool foot or cold foot so i don't think you can really say i mean certainly if you lose all of the blood flow to your foot you're generally gonna have a foot that's gonna approximate room temperature at some point in time because there's nothing otherwise to keep it warm but beyond that i can't i can't tell you the very the amount of blood flow that you would have relative to the temperature of the skin has it been your experience that that patients with injuries to the popliteal arteries can still present with positive pedal pulses with certain kinds of injuries they can sure this patient had an injury to a spotless artery and presented with a with a palpable pulse so clearly yes you could have an injury to your popliteal artery and still present with the popliteal pulse how about pedal pulse okay and what would um i'm sorry and what would those type of injuries occur other than what we know happened to mr tolson objection can you have an interval tear of the intimal flap and still have a positive petal pulse yes you can until it until it thrombosis or it may heal and you may never never have a problem and can you have a pseudo aneurysm with uh positive popliteal pulses which is what we had for a period here yes okay and let me ask you again and i don't know whether do you know for sure when the pseudo aneurysm developed not not not thrombosed but actually developed well i i would say that it probably started developing about three to six hours after he left the emergency room based on the fact that it takes some time for the tissues to begin to stretch and weaken so i would say you know it could have been towards the end as he was being discharged a few hours later but certainly within a few hours of that period of time does the period of time that it takes for the tissues to stretch and weaken is it dependent upon the severity of the trauma to the artery at the time of the injury i would say to some extent that would be the the more impact the more likely you are to to have a pseudo-aneurysm but you could also have a minimal impact that sort of just happened to pinch the artery in a way that damaged a small area so it's variable but i think to some extent you know a amount of force greater force is going to tend to injury a vessel more and then that would shorten the the three to six hour time from perhaps a one to two hour time when the aneurysm could start to develop no no because what we're talking about is whether the artery is injured to the point that it's eventually going to start to break down and stretch that's not going to happen for at least a few hours it takes time unless you actually cut the artery you have a hole in the artery the blood immediately comes out and becomes a pseudo aneurysm which i don't think happened here at all because this was not a penetrating trauma and that's only that's generally in penetrating trauma when in blunt trauma blunt force it takes a few hours for that wall to weaken enough no matter what the pre month the energy to begin to weaken enough to actually stretch and become a pseudo aneurysm so regardless of the amount of trauma it still takes several hours for the artery to weaken providing it's not a penetrating injury correct it still takes several hours to develop the pseudomaniac as long as whatever trauma that was didn't actually cause a hole in the artery which it didn't here it's going to take a few hours to actually begin to stretch and develop a pseudo aneurysm is that whether or not um intimal tear occurred at the time or not correct an animal tear is a whole nother issue an animal tear is more of an issue where you get you have basically an intact vessel the enema tears and blood begins to dissect under the the tear into the wall and closes off the lumen from a different mechanism that was not the case here because this patient had a pseudo-aneurysm and and you did not believe that he suffered from an intimal tear certainly not as a cause of his thrombosis could there be some animal injury sure but it wasn't an intimal tear there was not a dissection noted this was a pseudo-aneurysm have we covered all the opinions that you intend to give in this case objection so it's a hard question to answer i think i've covered most of what i wanted to say i mean obviously i'd respond to other questions but i think we've covered most of what i feel in the causation issues i think we've touched upon the fact that i think that uh you know the pulses were assessed and in my opinion that means that that the vas the vasculature was intact at that point and my causation opinions have definitely been uh elucidated um doctor is palpatine for pulses somewhat subjective in the medical profession you know i would say this certainly it takes some experience to be to know that you're doing it right um but in a reasonably healthy patient without arterial sclerosis it's generally a straightforward easy thing for most any healthcare practitioner to do the reason for that is that when where it becomes difficult is in is in vascular paths patients who have significant arterial disease have calcified vessels and in those patients appreciating a pulse is not always very easy when you're dealing with a patient in this age group who has no significant arterial disease and the vessels have reasonable elasticity generally speaking it's a pretty straightforward thing for most health care providers and certainly here we had three people who have either on the record or testified in deposition that they felt pulses doctor is simply the presence of a pulse in your opinion enough to conclude that the patient has a adequate flow of blood into their foot sure yeah i mean you have to have open flow through through either no or very minimally narrowed vessels to be able to transmit the impulse of arterial flow to the vessel to expand it to be perceived by fingers so yes so in order for you to conclude that mr tolson was suffering from a lack of blood supply into his leg on december 3rd 2009 while i was in saint agnes hospital you you would have to see one of the providers right in the report that they did not could not find a pedal pulse in his foot would that be accurate i would say if if one person couldn't find a pedal pulse but two or three other people did that doesn't mean that he didn't have pedal pulses clearly if three people said they did not feel a pulse then i could not conclude that the vessels were open okay so i guess and let me let me get to your opinion then is assuming that the providers who actually tested mr polson for positive pedal pulses performed that assessment accurately yes i i mean at least one of them i would think did are you going to be giving any opinion as to how frequently the providers should have assessed mr pulse mr tolson's pulse while he's in the emergency room no i think that an assessment is appropriate and they did it [Applause] and have we covered all of the factual basis for the opinions that you intend to give in this case objection i believe so i mean okay all right i can't think of anything offhand okay thank you very much thank you i have no questions mary pat yep do you have any questions i do not okay we'll read them something i'm gonna hang up on you oh i'm sorry good point thank you can i just have an electronic copy mini four to a page yes thank you so much do you have my information um yes i believe i do okay terrific thank you so much the videographer has to go off the record this is the end of tape one of the video tape deposition of dr gary rubin this deposition concludes it to 11.