NY Medical Malpractice Lawyer - Law Ofce of Anthony T. DiPietro, P.C.

233 Broadway, Fifth Floor, New York, NY 10270 (212) 233-3600. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 EXAMINATION BEFORE TRIAL of Defendant, DOCTOR 1, M.D, in the above-captioned March 31, 2009 9:30 A.M. 110 Wall Street New York, New York Defendants. -------------------------------------------X SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------X DELAY IN DIAGNOSING BREAST CANCER PATIENT, Plaintiff, Index No: 00000/08 -againstDOCTOR 1, M.D, COUNTY HOSPITAL CENTER and NEW YORK CITY

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action, pursuant to Notice, held at the above-noted time and place before KELLY A. CRUZ, a Notary Public of the State of New York.

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2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 BY: KARI MEROLESI, ESQ. FILE NO: 51.2176 GARSON, DeCORATO & COHEN, LLP Attorneys for Defendants 110 Wall Street New York, New York 10005 THE LAW OFFICE OF ANTHONY DiPIETRO, ESQ. Attorneys for Plaintiff 233 Broadway New York, New York 10279 BY: ANTHONY DiPIETRO, ESQ. APPEARANCES

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3 1 2 3 4 5 6 7 8 IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for the respective parties hereto, and in compliance with Rule 221 of the Uniform Rules for the Trial Courts: THAT the parties recognize the provision of Rule 3115 subdivisions (b), (c) and/or (d). All objections made at a

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deposition shall be noted by the ofcer before whom the deposition is taken and that answer will be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR. THAT every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination, persons in attendance shall not make statements or comments that interfere with the questioning. 631.608.4430

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4 1 2 THAT a deponent shall answer all

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questions at a deposition, except (i) to preserve a privilege or right of condentiality, (ii) to enforce limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause signicant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefore. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition. THAT an attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in Section 221.2 of these rules and, in such event, the reason for the communication shall be stated

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 for the record succinctly and clearly. THAT the failure to object to any question or to move to strike any testimony at this examination shall not be a bar or waiver to make such objection or motion at the time of trial of this action, and is hereby reserved; and. THAT this examination may be sworn to by the witness being examined before a Notary Public other then the Notary Public before whom this examination was begun, but the failure to do so or to return the original of this examination to counsel shall not be deemed a waiver of the rights provided by rule 3116 and 3117 of the CPLR and shall be controlled thereby. THAT the ling and certication of the original of this examination is waived;

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and. THAT the questioning attorney shall provide counsel for the witness examined herein with a copy of this examination without charge. - oOo -

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 D O C T O R 1, M.D, the witness herein, having rst been duly sworn by a Notary Public of the State of New York, was examined and testied as follows: EXAMINATION BY MR. DiPIETRO: Q. Would you please state your full name for the record. A. DOCTOR 1. Q. Would you please state your address for the record. A. 133 Midwood Street, Brooklyn, New York

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11225. Q. Doctor, can you tell me where you went to medical school? A. Downstate. Q. When did you graduate? A. In '78. Q. What did you do next professionally? A. I did emergency Downstate residency; ve years in surgery. Q. What did you do after you completed your residency in surgery? A. I did one year research, then I joined 631.608.4430

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7 1 2 3 4 5 6 7 on the staff at Woodhull Hospital. Q. You did research. What was that in? A. Fatty acid metabolism. Q. When you joined Woodhull Hospital, what did you do for them? A. I was general surgeon attending on

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staff. Q. Can you tell me what you did next, after Woodhull? A. After Woodhull, I came to County Downstate. Q. What position have you held at County Downstate? A. Associate director of surgery and employee clinical appointment at Downstate and clinical associate professor of surgery. Q. Anything else? A. Those are my two positions. Q. Have you had privileges at SUNY Downstate? A. Yes. Q. When did you have privileges there? A. I'm not sure of the year it started offhand, but I had privileges there. 631.608.4430

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MS. MEROLESI: Until when? A. Until 2004, I believe. Q. For approximately how many years did you have privileges there? A. Six. Q. Approximately, 1998 to 2004? A. I'm not sure of the start time, but in the end of 2004. Q. Why did your privileges at Downstate end? Girl girl: Note my objection. You can answer. A. We had a change in chairmen, and we organized the department, and so I -essentially, that's when I left to become full-time at County. Q. Were you asked to leave? Girl girl: Note my objection. You can answer. A. How can I phrase it? The way the department works, you have a salary from County and a salary from Downstate, so I tried to keep it just or just Downstate. I was

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asked to choose one or the other. 631.608.4430

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Q. Why did you choose County? A. Because County paid the bulk of my salary. Q. While you were treating patients at SUNY Downstate, you were also being paid by County? A. Yes. Q. Was that true for all the patients that you saw at Downstate? A. That was true for all the members of the department of surgery. That's how your salary was made up, so you spend time in both places. Q. So while you were at SUNY Downstate late '90s to 2004, you were also treating patients at County at the same time? A. Yes.

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Q. How was your day or week divided up? MR. COHEN: During what period of time? MR. DiPIETRO: During the period of time at Downstate. MR. COHEN: '98 to 2004? MR. DiPIETRO: Yes. A. I saw patients one day a week, I 631.608.4430

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10 1 2 3 4 5 6 7 8 9 10 11 12 operated one day a week, and County, I saw patients two days a week and operate one day a week. Q. So roughly, it was the same, 50/50? A. Well, it's really more time spent at County than Downstate. Q. Are you Board certied? A. Yes. Q. In what? A. General surgery. Q. When did you obtain Board

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certication? A. I was recertied twice, the original date probably around 1986. Q. And you recertied two times? A. Yes. Q. And you are currently certied? A. Yes. Q. Do you have any other certications or some sort of certications? A. No. Q. Has your license to practice medicine in the state of New York -A. Yes. 631.608.4430

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11 1 2 3 4 5 6 Q. When did you obtain that license? A. I would say 1980. Q. Have you ever been licensed in any other state? A. No.

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Q. Has your license to practice medicine in the state of New York ever been suspended, limited, or revoked in any manner at any time? A. No. Q. Have your privileges at any hospital or medical facility ever been suspended, limited or revoked in any manner at any time? A. No. Q. Can you tell me how you rst came to treat DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. She was sent to me from her doctor after having been seen by another surgeon in another institution. Q. When was that, approximately? A. Probably around 1998. Q. At the time, where did you see her? A. I saw her at the university Downstate. Q. Doctor, have you ever reviewed any cases as a medical expert in your career? 631.608.4430

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A. As a medical expert? Yes. Q. Can you tell me approximately how many and for how long you have been doing it? A. Only once about -- more than 20 years ago. Q. That was the only time? A. That was the only time. Q. Did you testify in that matter? A. No. Q. Have you ever testied as a medical expert? A. No. Q. Did that case involve breast surgery? A. No. Q. Back in around 1999, what percentage of the surgeries that you performed involved breast surgery? A. I would say about 60 percent. Q. Sixteen or 60? A. 60. Q. Of the 60 percent, what percentage of those involved surgery for breast cancer?

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A. The bulk of them. I would say 85. At least 85. 631.608.4430

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13 1 2 3 4 Q. Can you tell me what materials you reviewed in preparation for your testimony? A. The medical record.

5 Q. Would that be Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT's chart from 6 7 8 9 10 11 12 13 14 15 16 17 County Hospital Center? A. Yes. Q. Is that the original chart? A. Yes. Q. Is that the complete chart of Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. Yes. Q. Can we mark that as Plaintiff's Exhibit 1? (Plaintiff's Exhibit 1, Medical Chart, marked for identication.) Q. Doctor, did you ever make any

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handwritten notes concerning the care and

19 treatment you rendered to Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? 20 21 22 23 24 25 A. This time, no. Everything is computerized. Q. How about at -A. Yes. Q. Did you make any attempts, from the time you found out about this lawsuit until 631.608.4430

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14 1 2 3 now, to review the SUNY chart? A. No.

4 Q. Have you reviewed Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT's 5 6 7 subsequent records from LIJ? A. No. Q. I'm assuming there came a point in time

8 that you decided or determined that Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT 9 had breast cancer in her right breast?

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MS. MEROLESI: Are you talking about 1999, or sometime thereafterwards, because of this lawsuit? Objection. MR. DiPIETRO: Fair enough.

14 Q. Back when Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT was referred to 15 16 17 18 19 20 21 22 23 24 25 you in the late nineties, you made a determination that she had breast cancer? A. Yes. Q. Did you make a determination that she needed surgery for the cancer? A. Yes. Q. Did you discuss with her all the options in terms of what type of surgery should be performed? A. Yes. Q. What was your recommendation to her? 631.608.4430

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15 1 2 3 A. Mastectomy. Q. Why was that?

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A. Because of the profuse nature of the disease. Q. When you say the profuse nature of the disease? A. The cancer involved a large portion of her breast. Q. How was that determined? A. Both radiologically and by palpation. Q. Then in terms of follow-up care and treatment, did you have discussions with

14 Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT as to what would be required? 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q. What did you tell her? A. In 1998? Q. Yes. A. After surgery, she needs to be followed usually every six to eight months at least the rst ve years. Q. Why is that? A. That's -- I don't want to say that's standard, but usually consider that ve years. Try to watch them carefully for ve years.

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16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Q. When you say recurrence is considered for ve years, is that because of certain studies that have been performed about breast cancer? MR. COHEN: Note my objection. A. Yes. Q. Is it true that the studies that you were referring to, the reason ve years is used is because that's as far as the studies go out? MR. COHEN: Note my objection. A. No. The studies go ten years. Q. Doctor, would you agree with me that in a patient who has breast cancer, that the patient must have annual follow-up examinations for recurrence of cancer for the rest of her life? MS. MEROLESI: I'm going to note my

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objection. I'm going to ask you what you mean, diagnostic exam or physical exam. I think you need to clarify. MR. DiPIETRO: Any type of examination. A. I think they should see a doctor once a year for the rest of their life. 631.608.4430

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17 1 2 Q. That's something you told Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? 3 4 5 6 7 8 9 10 11 12 13 A. Yes. Q. Do you specically remember telling her that? A. Yes. Q. Doctor, can you tell me in your career approximately how many modied radical mastectomies you performed? A. Over a hundred. I would think well over a hundred. Q. And in performing a modied radical mastectomy, is it customary for you to perform

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an axillary dissection? A. Yes. Q. When you perform an axillary dissection, how do you determine how many nodes to remove? A. There's no way to determine. You do a standard dissection and removing the fat pads, isolating the veins and nerves, take all the fatty tissue, then the pathologist will dissect that. It's not something that you actually see. If they are large you might see them, but usually, the pathologist will tell you the 631.608.4430

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18 1 2 3 4 5 6 7 count of how many nodes. Q. In your experience, would it be fair to say that the average amount of nodes removed is around 25? A. No. Q. What's your experience?

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A. Consider adequate dissection of ten or more nodes. Q. What's the basis for that answer? A. Literature. Q. Can you cite me what you are referring to? A. I can't cite you the citation, but it's considered -- ten nodes is an adequate dissection. Q. Is there a specic textbook you can cite for the authority you are saying? A. No. Q. Have you had a chance to review the pathology report from the surgery performed on Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. No. Q. Of the hundred or so modied radical mastectomies that you performed in your career, 631.608.4430

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have you ever performed surgery where you attempted to identify the sentinal node? A. For modied radicals, no. Q. When would you identify the sentinal node? A. For best conservation therapy and the rest of the moderate radical mastectomy. Q. Is there certain ways that you can perform a modied radical mastectomy, where you would remove more nodes? A. I only hesitate because of the trend when modied radical mastectomies were rst introduced as an entity, the pectoralis minor was taken with the specimen to open up the axilla, and at the time they noticed, it's not necessary to do that. If you would do that, there would be more nodes, so it showed not to be a benet, so almost nobody takes all the nodes anymore. Q. Was that true in 1999? A. Oh, yes. It's been true for years, for a while. Q. And would it be correct to say the more

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20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 is for identifying cancer? MR. COHEN: Note my objection. If you can answer that, you can. A. No, no. Q. Did you ever perform a complete axillary dissection? A. A complete axillary dissection? (Record read.) A. I'm not quite sure what you are asking. Q. Are you familiar with the term "complete axillary dissection"? A. No. Completion axillary dissection. Q. Completion? A. Um-hmm. Q. What is that? A. If you do a biopsy and you nd the ancillary biopsy comes back positive after you

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have done the dissection, you have to come back and complete the dissection. Q. Would you agree that even where you perform an axillary dissection, if the lymph nodes come back as negative for cancer, there still could be other lymph nodes that have cancer, that remain in the body? 631.608.4430

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21 1 2 3 4 5 6 7 8 9 10 11 12 A. It's possible. Q. Is that one of the reasons why you would continue to perform annual examinations of a patient who has breast cancer, for the rest of their lives? A. There's two reasons: One, they need an annual examination, and two is they need to be ensured they have a clinical breast exam at least once a year. Q. As part of the clinical exam that you perform on your patients after mastectomy, that

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would also include an examination of the axillary nodes? A. By feel. Q. Right. With regard to breast cancer, would you agree that the earlier diagnosis is made, the better the chances are for a patient to be cured? A. Yes. Q. Doctor, is it true that in patients who have a modied radical mastectomy, up to 10 percent of those patients develop a local recurrence? MR. COHEN: Note my objection. 631.608.4430

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22 1 2 3 4 5 6 Do you agree with that statistic? THE WITNESS: No. Q. What's your understanding of the recurrence rate? A. The recurrence rate of local failure is

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lower than 6 percent. Q. That 6 percent includes patients who have a modied radical mastectomy but no radiation or chemotherapy treatment, true? A. Um-hmm. Q. Those are just surgical patients, in other words? A. Most patients have a modied radical mastectomy as a sole mode of treatment. I don't know statistics. Q. Well, the 6 percent recurrence rate, does that include patients who have modied radical mastectomy and chemotherapy or radiation? A. Yes. Some of them 6 to 12. MR. COHEN: Doctor, if you know a percentage give it to him, but if you don't, don't guess. A. I don't know an exact percentage or 631.608.4430

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 amount. Q. You said 6 to 12 percent is the rate? MS. MEROLESI: Note my objection. He just said he is guessing. If you are guessing -- don't guess. Q. I'm not asking for a guess. I'm just asking for an understanding if that would be 6 to 12 percent. MS. MEROLESI: Note my objection. A. Yes. Q. And that is for patients who have surgery plus chemotherapy or radiation? A. Either/or who have treatment -- they have surgery plus chemotherapy or minus chemotherapy, plus or minus. Also goes by the stage. Q. Okay. That includes all stages or certain stages? A. What? Q. The percentages that we are talking about, is that a number for -A. For early stage, so depends on the

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stage. The worse the stage the more chance you have a local recurrence. 631.608.4430

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24 1 2 3 4 TIENT? 5 6 7 8 9 10 11 12 13 14 15 16 Q. Let's clear that up. When you perform -- by the way, when was the surgery performed on Ms. DELAY IN DIAGNOSING BREAST CANCER PAA. I believe 1998. Q. Now, when you performed that surgery, did you consider her cancer to be in the early stage? A. I don't remember. Q. Would early stage cancer be considered cancer where there's no lymph node involved? A. Early stage is no lymph node or the size of the tumor is small. Q. How do you dene "small"? A. Less than two centimeters. Two centimeters to ve centimeters.

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Q. Less than two centimeters? A. Or two to ve, depending. Q. So if early stage cancer is between two to ve centimeters, what's zero to two centimeters? A. The stages go by the size of the tumor, by the lymph node involvement and by metastasis. So purely by size, one would be stage one, and you can also have two -- stage 631.608.4430

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25 1 2 3 4 5 6 7 8 9 10 two, also, less than two, two to ve and greater than ve. Q. So two to ve is considered T two as long as there's no lymph node involved? A. T is just related to the size. Q. Just to make this less clear, you would consider early stage cancer to be a tumor that's less than ve centimeters with no lymph node metastasis?

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MS. MEROLESI: Note my objection. That's not what he said. A. That's not what I'm saying. You also need -MS. MEROLESI: Just answer the question that he is asking you. THE WITNESS: Okay. Q. Did you consider the breast cancer that you found when you performed the surgery on Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT to be early A. Yes. Q. And even though you felt that the cancer was diffuse, you still considered it to be early stage? A. Yes. 631.608.4430

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26 1 2 3 4 Q. Now, with regard to the 6 to 12 percent recurrence rate for early stage breast cancer, we said that that population involved patients

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who had surgery and/or chemotherapy and/or radiation treatment? MS. MEROLESI: And/or patients that just had surgery. That's what he said. Q. And/or patients that just had surgery? A. Yes. Q. Okay. Can you tell me what your understanding is to the recurrence rate for patients with early stage breast cancer who only have surgery and no chemotherapy or radiation? MS. MEROLESI: Again, Doctor, I'm going to ask you not to guess. If you know, you can tell him. A. I cannot give you a number. Q. Can you give me a range? MS. MEROLESI: Not if you are guessing. MR. DiPIETRO: Stop. He knows. MS. MEROLESI: No, he doesn't know. MR. DiPIETRO: He is not guessing. Q. Now, Doctor, there came a point in time 631.608.4430

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27 1 2 when you switched from seeing Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT at 3 SUNY Downstate to seeing Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT at 4 5 County? A. Yes.

6 Q. How did it come about that Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT 7 8 9 10 11 12 13 14 15 16 17 18 19 switched from SUNY Downstate to seeing you at County? A. She asked if it was possible to see me at County; I said, Sure. Q. And why was that? What happened? MS. MEROLESI: Wait. Note my objection. What was the question? Q. What happened? Why did she want to see you at County? MS. MEROLESI: Note my objection. I don't know if he could say why she wanted to see him. Did she tell you?

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Only if she told him. Q. How did it come about that you started

22 seeing Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT at County as opposed 23 24 to Downstate? A. I was no longer at Downstate.

25 Q. Okay. Did you tell Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT when ABC COURT REPORTING, INC. 631.608.4430

28 1 2 3 4 5 6 7 8 9 10 11 12 you were leaving Downstate? A. That I would be leaving Downstate? Q. Yes. A. When she called, yes. Q. So when she called you, was that to make one of her follow-up appointments? A. Yes. Q. Were you still at Downstate at that point? A. No. Q. You had already moved to County?

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A. Yes. Q. How did she know to call you at County? MS. MEROLESI: Objection. You can answer. A. She had my cell phone number.

19 Q. Okay. Why did you give Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT 20 your cell phone number?

21 A. I have known Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT for a while, 22 23 24 25 and I try to make myself available to my patients, so she had my cell phone number. Q. Can you tell me what you recall about that rst conversation? 631.608.4430

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29 1 2 3 4 5 A. I don't recall. Q. Do you remember if she had tried to call SUNY Downstate to make the appointment and was told you left?

A. I don't know.

7 Q. Was it customary for Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT to 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 call your cell phone to schedule her follow-up appointments? A. She has on occasion. Q. Can you tell me what your cell phone number is? MS. MEROLESI: No, no. Note my objection. Absolutely not. Q. Was it the same number that you had for the past, say, six years or so? Your current cell phone number is the same that you have had for the past six years? A. Yes. MS. MEROLESI: Objection. Q. What's the number of your cell phone that Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT has? MS. MEROLESI: No. He is not giving you that. You are not entitled. It's the same one that he has now. 631.608.4430

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30 1 2 3 4 5 6 7 8 Q. I'm not going to call you, I promise. MS. MEROLESI: No, we are not giving that. We have to call a judge if you want that. You can ask him anything about the phone call, but he is not giving you the number. Not that I think you are going to call him, but you are just not entitled to that.

9 Q. When Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT rst contacted you 10 11 12 13 14 15 16 17 18 after you had switched over to County, did she express her desire to continue following up with you to monitor for the recurrence of breast cancer? A. Yes, especially the desire to follow up with me. Q. When she told you that she wanted to continue to see you, what did you say? A. I said, Sure.

19 Q. When did you start seeing Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT 20 21 at County for the rst time? A. Let's see. What date is this?

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February 22nd, 2005. Q. And you noted on February 22nd, 2005, that she was following up for breast cancer? A. Yes. 631.608.4430

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31 1 2 3 4 5 6 7 8 9 10 11 Q. You noted that she had received no Tamoxifen? A. Yes. Q. Can you tell me what Tamoxifen is? A. Anti-estrogen hormone therapy. MS. MEROLESI: If I can make a clarication, he didn't note she didn't receive Tamoxifen, he noted no Tamoxifen at this visit. (Discussion off the record.)

12 Q. Doctor, did Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT ever receive 13 14 Tamoxifen after the surgery you performed? A. I don't recall.

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Q. Is Tamoxifen something you would prescribe to all your patients who underwent modied radical mastectomy? A. Not to all the patients. Q. Okay. How would you determine whether or not a patient should receive Tamoxifen or not? A. If the receptors were positive, they would receive Tamoxifen. Q. Why would patients receive Tamoxifen if the receptors were positive? 631.608.4430

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32 1 2 3 4 5 6 7 8 A. Because those are the patients that have the most likelihood of getting benet from Tamoxifen. Q. And you also noted the axillary bilaterally was negative? A. Yes. Q. What does that mean?

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A. That means both sides. Q. How did you determine that? A. By physical exam. Q. Looking, touching, what? A. Looking and palpating with your ngers, your hands. Q. And you wrote, "There was no sign of a local recurrence"? A. Yes. Q. How did you make that determination? A. By physical exam. Q. What did that involve? A. Inspecting the area, looking at the scar, looking for symmetry, looking for any abnormal motions, rst of all asking her if she has noticed anything abnormal and feeling the area for lumps, bumps, any area that felt 631.608.4430

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33 1 2 to be abnormal compared to the rest of the

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breast. Q. When you say that area, you mean the area of the prior surgery? A. Yes, of the mastectomy site.

7 Q. Now, Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT had a reconstruction 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 performed? A. Yes. Q. Did you perform the reconstruction? A. No. Q. Who did that? A. Dr. Abramson. Q. Is that a plastic surgeon? A. Yes. Q. How would you inspect the area where the surgery was performed after there's been a reconstruction? A. The same. You look at the area, look at the scars, make sure they are healed, remained well healed, look for any anomaly, any symmetry, any roughness of the skin, any arm movement. Always encouraged to examine the site, so you always involve her in the process. And then feel the reconstructed breast for any

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34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 areas of hardness, stiffness, masses. Q. Doctor, would you agree with me that mammography is better than palpation for detecting breast cancer? MS. MEROLESI: Note my objection. What are you talking about? In a breast that had reconstructive surgery or a breast that has not? MR. DiPIETRO: Either. A. In general, mammography is better than palpation, yes. Q. And mammography can be performed on patients who had breast reconstruction, such as Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. Can be or is? Q. Well, let's start with can be. A. Can be. Q. Is that something that you do? That

20 21 22 23 24 25

you order? A. No. Q. Why is that? A. When I order on a reconstructive breast, because there's no benet of ordering a mammography on a reconstructed breast. 631.608.4430

ABC COURT REPORTING, INC.

35 1 2 3 Q. Okay. Are you saying that from the time that you rst performed the surgery on

4 Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT, whether '98 or '99 up through the 5 6 7 8 9 10 11 12 time when you last treated her, that you never ordered a mammography on the right breast? A. Never ordered mammography on the reconstructed breast. MS. MEROLESI: On the reconstructed breast? Q. So I want to show you a report from the mammogram dated January 22nd, 2003, where this

13 14 15 16 17 18 19 20 21 22 23 24 25

says "screening mammography bilateral" -"bilateral screening mammogram 1/23/2003." Can you tell me what that means? A. It means somebody ordered a bilateral mammogram. Q. Who was that? A. Dr. Sudovski. Q. Was a bilateral mammogram performed? A. There's no description of the right breast. Just says right mastectomy has passed -- I'm not sure what that means -- and there's a description of the left breast, extensive description of the left breast, but 631.608.4430

ABC COURT REPORTING, INC.

36 1 2 3 4 5 6 no description of the right breast. Q. Have you had a chance to have a conversation with Dr. Sudovski, why he ordered a bilateral mammogram in 2003? A. No.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. You have seen this report prior to today? A. I saw it today. Q. You are saying you saw it today? You saw it today in preparation for testifying? A. I saw it, yeah, today. Q. It was given to you by your attorney? A. Yes. Q. Doctor, would you agree with me that a sonogram is better than a mammogram in detecting breast cancer? A. No. Q. No? A. No. Q. Can sonography be used to screen for breast cancer following a modied radical mastectomy with breast reconstruction? A. Again, can it be used? Q. Okay. 631.608.4430

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37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A. Can be. Q. I'm assuming can it be used. Is it used? A. No. Q. Why is that? A. Because there's no benet. Q. When you say "there's no benet," I'm assuming detecting cancer at an early stage would be benecial to a patient. MS. MEROLESI: Note my objection. Q. Is detecting cancer at an early stage benecial to a patient? A. Yes. Q. Can sonography be used to detect cancer in a patient who's had a modied radical mastectomy with breast reconstruction? A. Yes, it can be used. Q. Are you aware of people who have done it? A. No. Q. Have you ever heard of anybody doing it?

24 25

A. No. Q. Have you ever heard of anybody using a 631.608.4430

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38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 CAT scan to detect breast cancer in a patient who's undergone a modied radical mastectomy with reconstruction? A. No. Q. And you have never ordered a CAT scan for such a patient? A. For surveillance, no. Q. Well, when you say "for surveillance," does that mean there are other reasons you have ordered a CAT scan for a patient who has had modied radical mastectomy? A. If there is a nding. Q. When you say "nding," what type of nding are you talking about? A. You mean for the breast per se, or in general?

18 19 20 21 22 23 24 25

MS. MEROLESI: No, in general, a modied radical mastectomy. A. CAT scan, no. Q. Okay. Doctor, is an MRI used to detect breast cancer in a patient who has had a modied radical mastectomy with reconstruction? A. No. 631.608.4430

ABC COURT REPORTING, INC.

39 1 2 3 4 5 6 7 8 9 10 11 Q. Can an MRI be used in such a patient? MS. MEROLESI: Can it be done physically? A. Yes, physically, it can be done. Q. And you are aware that there are reports out there of CAT scans and MRIs being used to detect breast cancer in patients who have undergone modied radical mastectomy with reconstruction? MS. MEROLESI: Note my objection.

12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. I've not read any. Q. When you say you have not read any, does that mean you have not read anyone ordered a CAT scan or MRI to detect breast cancer in patients who have undergone modied radical mastectomy? MS. MEROLESI: Objection. He said he never heard of it. Q. You have never heard of it? A. No. Q. Certainly. You have never heard of it. It's something you have never recommended to anyone, true? A. I have never recommended it. 631.608.4430

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40 1 2 Q. And you have never recommended it to

3 Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT that she should undergo a CAT scan 4 5 or mammogram of the right breast following the modied radical mastectomy, true?

6 7

A. True. Q. And I'm assuming that you never

8 recommend Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT undergo a CAT/PET scan 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 following the modied radical mastectomy? A. True. Q. Would you agree with me that a doctor may not just assume that all the cancer has been removed following the modied radical mastectomy? MS. MEROLESI: Note my objection. A. Assume that all the cancer has been removed? Q. Yes. A. It would be assumed based on if pathology shows no residual disease. Q. But you are assuming based on the pathology report, right? I'm asking, just after surgery, you can't assume that just because surgery is performed, that all the cancer is removed. 631.608.4430

ABC COURT REPORTING, INC.

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 MS. MEROLESI: Without a pathology report, how can anyone assume that? MR. DiPIETRO: I'm getting there. Relax. MS. MEROLESI: Get there faster. Q. And a doctor can't just assume that all the cancer was removed following modied radical mastectomy even if the pathology reports say that the margins are clear? MS. MEROLESI: Note my objection. He's already answered that. You can answer. A. If they say the margin is clear, yes. MS. MEROLESI: Yes what? A. It can be assumed that the cancer has been removed. Q. Okay. Well, Doctor, if you are assuming that the cancer has all been removed because the margins are clear, why is it that you recommend annual surveillance in patients

22 23 24 25

who undergo modied radical mastectomy? A. Because by virtue of the fact that they have cancer, they are telling you that they are prone to cancer; they need to have annual 631.608.4430

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42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 surveillance. Q. Are you talking about annual surveillance in the opposite breast, or the site where the cancer was removed, or both? A. Both. Q. Both? A. Yes. Q. Doctor, would you agree with me that an imaging study such as a CAT scan or MRI must be performed as a modied radical mastectomy to ensure all the cancer is removed during the prior surgery? A. No. Q. Have you ever heard of an ultrasound

16 17 18 19 20 21 22 23 24 25

being used to detect recurrence of cancer in the chest wall of a patient following modied radical mastectomy? A. No. Q. Have you ever heard of an ultrasound being used to detect cancer in the node or notch of basins following modied radical mastectomy of a patient who has had breast cancer? A. No. 631.608.4430

ABC COURT REPORTING, INC.

43 1 2 3 4 5 6 7 8 9 Q. Would you agree that a patient can have cancer remaining in the chest wall that can't be detected by a visual examination or even palpation? A. Yes. Q. Would you agree with me that a patient can have cancer in the nodes that can't be detected by a visual examination or palpation?

10 11 12 13 14 15

A. Yes. Q. In patients whose receptors are positive for estrogen, are those patients at an increased risk for developing recurrence of cancer? A. No.

16 Q. Doctor, after you saw Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT in 17 18 19 20 21 22 23 24 25 your ofce in February 2005, you saw her again a few months later, in June 2005? A. I saw her again in -- I have here January 2006. MS. MEROLESI: You have June 2005? MR. DiPIETRO: I do. MS. MEROLESI: Can I see it for a second? MR. DiPIETRO: No. 631.608.4430

ABC COURT REPORTING, INC.

44 1 2 3 Q. I would like to show you a note June 5th, 2005. Is this note that you saw

4 mogram? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT or for mamA. It's a mammogram. Q. Did you order this mammogram June 9, 2005? A. The plan from the note was a yearly mammogram. Q. Okay. In this note, where it says "for routine high risk mammogram," what does that mean? A. Well, she's had a breast cancer, so that makes her high risk. Q. High risk for recurrence of cancer? MS. MEROLESI: No, that's not what he said. Q. I'm asking, you said high risk? A. High risk for cancer of her other breast. Q. How about recurrence for the breast that was already operated on? A. We don't order mammogram for the breast that was already operated on.

25 Q. And the next time you saw Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT

ABC COURT REPORTING, INC.

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45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 was January 2, 2006 -A. Yes. Q. -- when she came to you because she was in a car accident? A. I think it was her yearly exam. Q. She reported to you specically that she was in a car accident? A. Yes. Q. And in January 2006, again, you examined her axilla? A. Yes. Q. And you examined the axilla bilaterally, on both sides of the chest? A. Yes. Q. And you found the axilla to be negative on both sides of the chest? A. Yes. Q. May I see yours? Because mine is cut

20 21 22 23 24 25

off on the bottom. A. (Handing). Q. Can you tell me what this means here, where it says under Diagnostic Description "female UOQ"? A. Upper outer quadrant. 631.608.4430

ABC COURT REPORTING, INC.

46 1 2 3 4 5 6 7 8 9 10 11 12 13 Q. That's referring to the right breast, where she had the surgery? A. Yes. Q. And a mammogram was performed in August 2006? A. I don't know. MS. MEROLESI: Off the record. (Discussion off the record.) A. Do you have a page 2?. Q. (Handing). A. August 2008. MS. MEROLESI: '06.

14 15 16 17 18 19 20 21 22 23 24

THE WITNESS: Oh. Sorry. I don't have my glasses. Q. And you ordered that mammogram in August 2006? A. Yes. Q. That was a mammogram of just the left breast, true? A. True. Q. And the recommendation was for a 12-month follow-up, yes? A. Yes.

25 Q. Now, the next time you saw Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT ABC COURT REPORTING, INC. 631.608.4430

47 1 2 3 4 5 6 was in September 2006? A. Yes. Q. And, Doctor, in September 2006, again, you performed a bilateral examination of the axilla?

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Yes. Q. And that was both a verbal and a physical examination? A. Yes. Q. Anything else? A. No. Q. And you found the axilla to be negative bilaterally? A. Yes. Q. And to you, that meant there was no sign of a recurrence of the cancer? A. In the axilla, correct. Q. And when you say no sign of recurrence, does that also mean you -- did you also perform an examination of the right breast, where the mastectomy had been performed? A. Yes. Q. Did you nd any indication of recurrence of cancer there? 631.608.4430

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48

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A. No. Q. As of September 2006, you found no sign of recurrence, either in the breast or in the lymph nodes -A. Yes. Q. -- on the right? A. Yes. Q. And in September 2006, you didn't order any imaging studies of the right breast, correct? A. Correct. Q. And you recommended an annual follow-up visit for Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. Yes. Q. And you anticipated that she would continue to treat with you? A. Yes. Q. That was for the ongoing monitoring of her breasts for the development of breast cancer? The recurrence of breast cancer? A. Yes.

23 Q. Did you emphasize to Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT the

24 25

importance of having annual follow-ups? A. Yes. 631.608.4430

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49 1 2 3 4 5 Q. What did you tell her? A. The importance of self-exam and importance of maintaining annual follow-up. Q. And would you say you were more

6 concerned for a patient like Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT to 7 8 9 10 11 12 13 14 15 16 follow up, who's already had cancer, than compared to another patient who didn't have a history of cancer? MS. MEROLESI: Note my objection. A. I would say as concerned. Q. Certainly no less concerned? A. That's fair. (Recess taken.) Q. Doctor, did your ofce have some type of mechanism where you would send out reminder

17 letters to Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT on an annual basis or 18 19 20 21 22 23 24 25 semi-annual basis, to remind them to come back in for examinations? A. No. Q. When is the next -- or was there any type of procedure in place where your ofce would call patients on the phone to remind them to come back in for examinations? A. No. 631.608.4430

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50 1 2 3 4 5 6 7 8 9 10 Q. You basically just tell the patient, Come back in a year, and leave it to them to follow up? A. Yes. Make an appointment for a year time to have follow up; left to them to have a follow-up. Q. And so the patient was -- the procedure was, the patient wouldn't make an appointment when they were leaving the ofce, they would

11 12 13 14 15 16 17 18 19 20

just have to remember to call you to come back? A. But they were to come back in a year. Q. They weren't given a specic date? A. Yes. MS. MEROLESI: Other than one year? Q. Would you say September 13, 2000? A. As they leave, they would go to the front and they would get an appointment. Q. With an actual date? A. Yes.

21 Q. So when Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT was in your ofce 22 23 24 25 on January of 2006, she would have been given the date for September 13, 2006? A. No, she would have -MS. MEROLESI: '7. 631.608.4430

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51 1 2 3 A. She would be given a date in a year. I don't know what date she would be given.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. Is there anything in the ofce that would let us know what date? Some type of logbook or calendar? A. It's a clinic system, county clinic. When she leaves me, she goes to the front desk and arranges the appointment for a year. Q. How does the clinic keep track of the appointments? A. They put it into the appointment system. Q. Is it on paper or digital? How is it -A. I suppose it's digital. MS. MEROLESI: Don't suppose. Do you know? A. I don't know. Q. If I would like to obtain that information, what would I do? MS. MEROLESI: Note my objection. He has to tell you. Send me a D&I. MR. DiPIETRO: D&I of what? Q. What would I be looking for? 631.608.4430

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52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 MS. MEROLESI: Note my objection. Do you know? A. I don't know. I can only suppose. Q. What's your understanding? Is there a certain -- what's the identity of the desk where this information would be given to the patient? A. The identity of the desk is the surgery clinic. Q. The surgery clinic? A. Um-hmm. MS. MEROLESI: Off the record. (Off the record.) Q. What's the next contact that you had

16 with Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT after September 13, 2006? 17 18 19 20 A. Next contact I had with her, I think it was a phone call. She called me. Q. Was that on your cell phone? A. Yes.

21 22 23 24 25

Q. When did that occur? A. I don't recall. Q. Did you ever become aware that she had tried to contact you at the ofce as well? A. I don't know. 631.608.4430

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53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Q. If a patient calls you at the ofce back in 2007, and they leave a message, how is that message given to you? A. It's recorded, and secretary gives it to me. Q. How? Is it a sheet of 8 and a half by 11 paper or a little pink piece of paper? A. Yeah, one of those. MS. MEROLESI: Like a message slip? THE WITNESS: Yeah. A. While you were out message slip. Q. So these are handwritten notes? A. Yes, handwritten note.

15 16 17 18 19 20 21 22 23 24 25

Q. Are there any entries that are made in the computer system about phone calls of patients? A. No. Q. Do you recall being given any message slips around September or October of 2007, from Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. No. Q. Now, you said you don't remember when this phone call took place? A. I don't have a date. 631.608.4430

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54 1 2 3 4 5 6 7 8 Q. Do you know if it was in September 2007? A. No, it's much more recent, I believe. Q. "Much more recent," meaning recent to today? A. I think -- I don't recall offhand. I don't know a rm date.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. Do you know if it was before or after she was diagnosed with the recurrence of cancer? A. No, she told me that the cancer had come back. Q. What was your understanding as to when this phone call took place in regards to when she found out the cancer had come back? A. I think it was around the same time. Q. Do you know when that was that she was diagnosed with the recurrence? A. No. Q. Now, when she contacted you, what happened? Did she ever leave you any messages? A. No, she spoke to me. Q. How many times did she call you? A. As far as I know, just once. 631.608.4430

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55 1 2 Q. And you are not sure if that was

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

September, October of 2007? A. I don't -- I don't recall. Q. Would you say it was in the fall of 2007? MS. MEROLESI: How can he tell you what months are in the fall? MR. DiPIETRO: Well, there's other months in the fall, too. A. Do I know if it was the fall? MS. MEROLESI: Yeah. A. Yes, I think so. Q. Of 2007? A. When was she diagnosed? MS. MEROLESI: Don't ask him any questions. Do you know if it was that year, yes or no? A. I don't know. Q. Was it about a year after the last time you saw her? A. More than that. Q. When you say "more than that," how much more than that? A. (No response.)

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56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Q. And the last time you saw her being September 13, 2006. A. Um-hmm. I can't tell you how much more, but it was more than a year. Q. Okay. And so she called you this one time, and you picked up the phone and you spoke to her. Where were you when this happened? A. Where? Q. Yes. A. In my ofce, I believe. Q. So this phone call occurred during the week? A. During the week. Q. Do you know about what time of the day it happened? A. I don't recall. Q. Do you know if it was before or after lunch?

20 21 22 23 24 25

A. I don't recall. Q. When you spoke to her, did she ask to come in to see you? A. No. Q. Did she ask you any questions? A. No. She just called to let me know 631.608.4430

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57 1 2 3 4 5 6 7 8 9 10 11 12 13 that it had recurred and how she was doing. Q. And she didn't ask any questions? MS. MEROLESI: Note my objection. He said no. A. No. Q. Did you ask her any questions? A. Just how she was doing. Q. What did she tell you? A. Said she is feeling ne. Q. Did you ask her anything else? A. No. Q. You didn't ask her who diagnosed her

14 15 16 17 18 19 20 21 22 23 24 25

with the recurrence? A. Who diagnosed her? Q. Yes. A. She told me that they found the recurrence; that it came back and it's in her liver. I don't believe I asked who diagnosed it. Q. Did you ask her what her plans were in terms of future treatment? A. She said that she is going to see an oncologist. Q. Did she tell you where? 631.608.4430

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58 1 2 3 4 5 6 7 A. No. Q. Did you ask her where? A. No. Q. Did that seem like the appropriate thing for her to do, see an oncologist? MS. MEROLESI: Note my objection.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Yes. Q. Did you tell her that? A. That it's appropriate to see an oncologist? Q. Yes. A. Yes. I said that's what she needed to see. Q. Did she ask you what you thought about this cancer, whether it was from where the surgery was performed? A. Did she ask me if I thought it was from where the surgery was performed? No. She reiterated that's where she thought it was from. Q. So when she was talking to you, she said she thought it was from where she had the prior surgery? A. She said that's what they think. 631.608.4430

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59 1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Q. Did you ask her who she meant when she said "they"? A. Her treating physicians. MS. MEROLESI: Did you ask her that? THE WITNESS: No. Q. Do you know what hospital they were associated with or anything? A. No. Q. When she said she thought it was from the right breast, what did you say to her in response? A. What did I say to her? Q. Yeah. A. I don't recall saying anything specically, other than, you know, just trying to -- condolences and be supportive. Q. When you say "be supportive," did you tell her you would pull her chart and take a look? A. No. Q. Did you pull the chart to take a look? A. No. Q. Okay. So are you saying that from the

25 time that Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT called you to tell you ABC COURT REPORTING, INC. 631.608.4430

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 that she had been diagnosed with metastatic cancer until the time you found out about the lawsuit, that you never went back to the chart or computer screen to take a look at the prior visits? A. The prior visits? Q. Yeah. A. I see the three visits that I have. MS. MEROLESI: No, prior to being sued. A. Prior to being sued, no. MR. DiPIETRO: No, he had it right. Q. What I'm asking -MS. MEROLESI: Sorry. Q. What I'm asking you: In your ofce, your patient calls you and she says -MS. MEROLESI: Whatever she says.

18 19 20 21 22 23 24 25

MR. DiPIETRO: Yeah. Q. -- she has cancer in her liver now and thinks it's from the right breast, where you previously performed surgery. At any point after that, did you go to the computer screen to look at her chart and what you wrote in the chart? A. No. 631.608.4430

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61 1 2 3 4 5 6 7 8 9 10 11 Q. How long did this conversation take? A. Maybe a minute. It wasn't a long conversation. Q. Did you ever nd out that she was receiving treatment at LIJ? A. I didn't nd out that she was receiving treatment at LIJ until now. Q. Just through your attorney? A. Yeah. MS. MEROLESI: Don't talk about any

12 13

conversations that you had with me. A. You said LIJ? Yes.

14 Q. Did you ever nd out that Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT 15 16 17 18 treated at LIJ? MS. MEROLESI: Prior to today? MR. DiPIETRO: Yes. A. No.

19 Q. Did you ever nd out Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT was 20 21 22 23 24 25 treating with Dr. Meroda (phonetic)? A. No. Q. You and, you know a Dr. Sudovski? A. Yes. Q. You are friends with him? A. Yes. 631.608.4430

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62 1 2 3 4 Q. And you see him on a regular basis? A. At least a few times a year. Q. That's on a personal basis?

5 6 7 8 9 10 11 12 13 14 15 16

A. Pass in the halls. We are friends. Q. I missed the last part. A. We pass in the halls. We are friends. Q. When you say you are friends, you see him outside of work? A. No. Q. You don't? A. No. Q. Are you aware that Dr. Sudovski still treats Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. Yes. Q. Can you tell me what conversations you

17 have had with Dr. Sudovski about Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT 18 19 20 21 22 23 24 25 from the time that you rst found out about the lawsuit until today? A. Conversations. We had one conversation at a function. I informed him I was being sued. Q. Okay. What specically -A. Oh, the conversation? Q. Yeah. 631.608.4430

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63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A. I told him I was being sued. He said, You are kidding me. I said, No, I'm not. He said, We probably shouldn't be talking. That was the end of the conversation. Q. And when was this function? A. I don't remember exactly. Q. What was the function? A. It was the retirement of one of -- I believe the retirement of one of the pathologists. Q. Did you have any other conversations with Dr. Sudovski? A. No. Q. Did you have any type of a private practice back in 2006? A. No. Q. Have you ever? A. From 2006 on, no. Q. Prior to 2006? A. 2004.

22 23 24 25

Q. Okay. Can you tell me about that? A. From '98 to 2004, or thereabouts. The time period I worked at Downstate. Q. What was the name of your practice 631.608.4430

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64 1 2 3 4 5 6 7 group? A. It was just myself. Q. Was it DOCTOR 1, MD? A. MD. Q. Where was your ofce? A. At Downstate.

8 Q. Was Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT a private patient of 9 10 11 12 13 14 yours at Downstate? A. Yes. Q. Did she continue to be a private patient of yours after you left Downstate and went to County? A. She was a County patient.

15 16 17 18 19 20 21 22 23

Q. Is that because you weren't allowed to have a private practice at County? A. Yes. Q. How is the billing done when you were in private practice? A. Done through the department of surgery. Q. At Downstate? A. At Downstate. Q. So, now, after you had this one-minute

24 conversation with Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT over the 25 telephone, what's the next contact you had with 631.608.4430

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65 1 2 3 4 5 6 7 8 her? A. I have not had any more contact with her. Q. Did she ever try to call you again? A. No, not that I recall. Q. Did you ever try to call her again? A. No.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. Did you ever ask around, any doctors, nurses, how she is making out with the cancer? A. No, I didn't. The only person I tried to ask we realized we shouldn't speak, so... Q. That was Dr. Sudovski? A. Yes. Q. Did you ask him how she was doing? Is she still alive? Is she going to make it? A. Yeah, essentially. Q. What did he tell you? A. He said yes and we shouldn't talk any more. Q. Yes, she is going to make it? A. Not yes, she is going to make it, but yes, she is okay. Q. Can you tell me what the ofce number is for your County -631.608.4430

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66 1 2 A. County, 718-245-4146.

3 4 5 6 7 8

Q. Any others? A. 4145. Q. Uh-huh. A. And I don't know if it's 270-2155. Q. Were there any others back in 2007? A. No.

9 Q. Did Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT ever call you when she 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 was admitted to the hospital and undergoing treatment for the recurrence of cancer? A. No. Q. Did you ever come to an understanding as to whether or not -- as to what specically the recurrence was? A. Did I ever come to an understanding? Q. Yeah. A. Only from a statement that was in her -- that it was in her liver. Q. I guess what I'm asking, did you ever come to an understanding as to you have knowledge that she had a metastasis? A. Yes. Q. Did you come to an understanding that

25

the metastasis was from residual cancer that 631.608.4430

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67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 remained in the chest wall or -- as opposed to development of cancer in some other area in the body? MS. MEROLESI: Did you ever come to learn that? A. That there's residual cancer? Q. The metastasis. What's your understanding of the metastasis? Was it from cancer remaining in the nose or the chest wall or -MS. MEROLESI: If he has an understanding. MR. DiPIETRO: Of course. A. I don't quite understand. It's -- the question, if I can, is it my understanding of recurring cancer -- you are saying residual, rather than recurrent. Those are the two words

19 20

I don't understand. Q. Did you have an understanding whether

21 or not Mrs. DELAY IN DIAGNOSING BREAST CANCER PATIENT had recurrent cancer as 22 23 24 25 opposed to residual? A. No. Q. Did you ever make any effort to nd out whether or not this was recurrent cancer, 631.608.4430

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68 1 2 3 4 residual cancer or a completely new and different cancer? A. No.

5 Q. The last time you saw Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT was 6 7 8 9 10 11 September 2006? A. Yes. Q. From September 2006 until the present, did you ever call or attempt to call Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. Did I? No.

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Q. From September 2006 to the present, did

13 you ever ask anyone to call Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT for any 14 15 16 17 18 reason? A. No. Q. Did you ever read Dr. Sudovski's notes about Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT? A. No.

19 Q. Do you know where Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT was when 20 21 22 23 24 25 she had called you to tell you that she had been diagnosed with metastatic cancer? A. No. Q. Would you agree that a doctor must make every effort to rule out breast cancer? A. Make every effort to... 631.608.4430

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69 1 2 3 4 MS. MEROLESI: You have to say. A. Yes. Sorry. MS. MEROLESI: That's okay.

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Q. Can you tell me what an axillary sampling is? A. Axillary sampling, it's a term that you use when you just take a few axillary nodes as opposed to an essential node, where you just take a few. Q. Was there any attached when you performed the modied radical mastectomy? A. One goes with the other as you do a modied radical mastectomy. You take the action that so you take them as you sample them. Q. Just so our terminology is clear, an axillary sampling is different than axillary dissection, true? A. True. Q. And it was your intention to do an axillary sampling when you did the modied radical mastectomy or actual dissection? A. I don't recall. I have to read the notes from back then. 631.608.4430

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70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Q. What would you be looking for specically? A. The indication of one over the other. Q. What do you mean by that? A. Dissections are indicated for certain situations of sampling than others. Q. What are those indications? A. Usually, dissections are part of the process for an evasive cancer and a sampling maybe for nonevasive cancer, where we do essential lymph node as opposed to just a sampling. Q. Can you determine whether the cancer is invasive or not invasive prior to doing the modied radical mastectomy? A. Yes. Q. How is that? A. Biopsy. Q. And how about, is there anything about the size of the specimen that's removed that

22 23 24 25

would let you know whether or not it was a sampling as opposed to a dissection? A. No. Q. Is there any way you can tell, looking 631.608.4430

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71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 at the path report, whether or not a dissection was performed as opposed to a sampling? A. No. Q. What other ways can you tell that an axillary dissection was performed rather than sampling, other than looking at a preoperative biopsy to see whether or not the cancer was invasive or not invasive? A. Can you rephrase? Q. Is there anything else you can look at that would indicate to you that an axillary sampling was performed as opposed to an axillary dissection, other than to look at the preoperative biopsy, which would say the cancer

16 17 18 19 20 21 22 23 24 25

was either invasive or noninvasive? A. I'm having a problem with the question. Q. Let me break it down a little. A. Okay. Q. An axillary dissection is performed when the cancer is invasive? A. Right. Q. An axillary sample is performed when the cancer is noninvasive? A. Noninvasive or may be invasive. 631.608.4430

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72 1 2 3 4 5 6 7 8 9 Q. Or may be invasive. Okay. Other than looking at the biopsy to see whether the cancer was invasive as opposed to noninvasive or may be invasive, is there anything else you can look at, before or after the surgery is performed, that would give you an indication whether or not axillary dissection should be performed as opposed to

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

axillary sampling? A. No, but I'm still having a problem with the question. Q. Okay. Let me break it down. What advantages does an axillary sampling have over axillary dissection? A. It's a lot less morbid, so the dissection has a group of complications associated with it that you would try to avoid if you would have to do dissection. That's my essential lymph nodes. You can do very limited dissection and not have to do a full sampling. Chronic arm swelling, damage to the vein, nerve damage. Those would be the problems, the common ones. Q. Okay. Now, sentinal node testing was 631.608.4430

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73 1 2 3 available back in the late 1990s? A. It wasn't a standard.

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Q. It was something that was available? Some people were doing it, but you weren't doing it? MS. MEROLESI: Well, that's not what he said. A. That's not what I said, but it wasn't considered standard of care the way it is now. Q. Now, it's considered standard of care? A. For the proper disease. Q. For the? A. Proper disease, yeah.

15 Q. If Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT came to you now with the 16 17 18 19 20 21 22 23 24 25 lump in her breast, would she have had the sentinal node test? MS. MEROLESI: Objection. How can he say if she came today without knowing the presentation? He can't answer that. Q. If everything were the same, other than she came to you now as opposed to the late 1990s, would you perform the sentinal node testing? MS. MEROLESI: Objection. I'm not

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74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 going to block it, but it's completely inappropriate and would never be accepted at trial. MR. DiPIETRO: Never? MS. MEROLESI: Ever. MR. DiPIETRO: Never ever? MS. MEROLESI: Never. And not if you have to go to an explanation. A. I have to explain. MS. MEROLESI: Ask him something specic. Q. Sentinel node testing is something you do currently? A. Yes. Q. When did that become standard of care? A. I can't give you a date, but it's been for a while. Q. Sometime between the late nineties and the present?

21

A. Okay. That's fair.

22 Q. Now, if Ms. DELAY IN DIAGNOSING BREAST CANCER PATIENT came to you today, 23 24 25 March of 2009, and everything about her condition were the same, would she undergo sentinal node testing? 631.608.4430

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75 1 2 3 4 5 6 7 8 9 10 11 12 13 can. A. In order to answer the question -Q. Yes. A. -- I have to know her -- what her original biopsy showed. Q. Okay. The parameters that you have been looking at on the regular biopsy were not invasive, maybe, or not -A. If it was noninvasive, good grade, the answer would be no. If it was maybe invasive, MS. MEROLESI: Note my objection. If you can answer it, you certainly

14 15 16 17 18 19 20 21 22 23 24 25

the answer would be yes, and if it's invasive it's yes. Q. Okay. A. I need to add a statement. MS. MEROLESI: No. MR. DiPIETRO: Sure. Let him add a statement. I'll ask the question. Q. Did you need to add a statement? A. That's provided that she didn't have any axillary nodes that you could feel. If you have something you could feel, she needs a dissection, not a sentinal node biopsy. 631.608.4430

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76 1 2 3 4 5 6 7 THE WITNESS: Is that okay? MS. MEROLESI: That's okay. MR. DiPIETRO: I don't have anything further. Thank you. MS. MEROLESI: All right, Doctor. You are done.

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(Time noted: 12:30 p.m.)

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ACKNOWLEDGMENT

STATE OF NEW YORK ) :ss COUNTY OF KINGS )

I, DOCTOR 1, M.D, hereby certify that I have read the transcript of my testimony taken under oath in my deposition of March 31, 2009; that the transcript is a true, complete and correct record of my testimony, and that the answers on the record as given by me are true and correct.

DOCTOR 1, MD

Signed and subscribed to before me, this day of , 2009. ________________________________ Notary Public, State of New York

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78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 -------------------EXHIBITS------------------PLAINTIFF'S 1 Chart FOR I.D. 15 ------------------I N D E X------------------WITNESS EXAMINATION BY PAGE

DOCTOR 1 MR. DiPIETRO

19 20 21 22 23 24 25 ABC COURT REPORTING, INC. 631.608.4430

79 1 2 3 4 5 6 7 8 9 10 11 12 I, Kelly A. Cruz, a Notary Public within and for the State of New York, do hereby certify: That the witness whose deposition is hereinbefore set forth, was duly sworn by me and that such deposition is a true C E RTI F I CATE STATE OF NEW YORK ) ss.: COUNTY OF KINGS ) )

13 14 15 16 17 18 19 20 21 22 23 24 25

record of the testimony given by such witness. I further certify that I am not related to any of the parties to this action by blood or marriage; and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 26th day of April, 2009.

_________________________ KELLY A. CRUZ

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