Carswell trial - Rhonda Edwards testimony

1 1 2 3 4 5 6 7 8 v. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S RECORD VOLUME 7 OF 25 VOLUMES TRIAL CAUSE NO. 2005-36179 APPELLATE CAUSE NO. 01-11-00292-CV LINDA G. CARSWELL, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF JERRY L. CARSWELL, DECEASED, ROBERT J. CARSWELL, AND JORDAN D. CARSWELL, Plaintiffs, )( IN THE DISTRICT COURT )( )( )( )( )( )( )( )( )( HARRIS COUNTY, TEXAS )( )( )( )( )( )( 165TH JUDICIAL DISTRICT CHRISTUS HEALTH AND CHRISTUS HEALTH GULF COAST D/B/A CHRISTUS ST. CATHERINE HEALTH, Defendants _____________________________________________ JURY TRIAL _____________________________________________ On the 13th day of August, 2010, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable JOSEFINA RENDON, Judge Presiding, held in Houston, Harris County, Texas. Proceedings reported by computerized stenotype machine. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 2 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 APPEARANCES M r. Carl Shaw SBOT NO. 18138825 -ANDMr. Neil McCabe SBOT NO. 13335300 O'QUINN, LAMINACK & PIRTLE 2300 Lyric Centre Building 440 Louisiana Houston, Texas 77002 Telephone: (713) 223-1000 Fax: (713) 222-6903 -ANDMr. Michael O'Brien State Bar No. 15170200 14355 Hwy 105 Washington, TX 77880 (713) 222-0088 (713) 222-0888 facsimile Counsel for Plaintiffs Mr. Robert J. Swift SBOT NO. 19585700 -andMr. Randall S. Richardson SBOT NO. 24027658 -andMr. Warren S. Huang SBOT NO. 00796788 FULBRIGHT & JAWORSKI, LLP 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 Telephone: (713) 651-5151 Fax: (713) 651-5246 Counsel for Defendants Christus Health and Christus Health Gulf Coast D/B/A Christus St. Catherine Hospital Mr. Thomas P. Sartwelle SBOT NO. 17656000 22 Beirne, Maynard & Parsons, LLP 1300 Post Oak Boulevard, 25th Floor 23 Houston, Texas 77056 Counsel for Defendant Jeffrey W. Terrel, M.D. 24 25 PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 3 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (**Note: August 13, 2010 CHRONOLOGICAL INDEX Page Vol. 7 7 Vol. 7 7 Rule invoked...............................4 Court Reporter's certificate...............159 Plaintiffs' Witnesses Edwards, Rhonda Direct 9,124, 141,145 Cross 76,136 143,146 EXHIBIT INDEX Plaintiffs' Exhibit No. Description Offered/Objection/Admitted Vol. 270 Drawing by Edwards 23 **271 Medical record of canceled lab test 55 **272 Affidavit 126 --126 23 56 7 7 7 See Plaintiffs' Exhibit 612 for 271 and 272 per exhibit agreement in Volume 21, page 200.) PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 4 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SWIFT: Couple of issues. One is invoking of the rule. And my understanding is that Nurse Beerman is -MR. O'BRIEN: Yeah, she's an expert. She's excluded from the rule. MR. SWIFT: that's how -THE COURT: Okay. So everybody is good Okay. I just want to -- if with, you know, complying with the rule here? I mean, any witnesses that shouldn't be here? MR. O'BRIEN: THE COURT: MR. SWIFT: Yes. Okay. One other thing was -- is the witness being questioned about her interaction with her lawyer, Mr. Yankowsky, communications with her lawyer? I don't know whether it was in their motion in limine, whether -MR. O'BRIEN: I don't intend to get in the communications themselves. THE COURT: MR. SWIFT: like -THE COURT: You know, I'm very -- I mean, Okay. Okay. And then a question I'm very watchful of words, the choice of words, right? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 5 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. MR. SWIFT: Yeah. One was, did they know "They" without being defined, but really Maybe that's another way meaning the lawyer. of doing it, but I still -THE COURT: though. MR. O'BRIEN: THE COURT: MR. O'BRIEN: THE COURT: MR. SWIFT: I will do that. You know what not to do. Yeah, I'm not going into -Great. Did they know, meaning through So you're being put on notice, your communications with your lawyer, which is essentially the same thing. MR. O'BRIEN: MR. SWIFT: That's fair game. I don't think so. I don't think the communications with the lawyer is fair game. That's my point. In other words, it's in the in limine, but to suggest that he's going to get around -- he's not going to identify the person as a lawyer doesn't mean that it's not an attorney-client communication. MR. O'BRIEN: THE COURT: choice. MR. O'BRIEN: We're not getting into the Well -I think that would be her PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 6 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 communication. THE COURT: MR. O'BRIEN: protects. protected. Okay. That's what the privilege The fact of a communication is never We ask witnesses all the time have they spoken to the lawyer for a deposition or, you know, of that -MR. SWIFT: But not what was said, not what did you tell your lawyer, what did your lawyer tell you. MR. O'BRIEN: THE COURT: MR. SWIFT: point. I'm not asking that. Okay. So -- This is kind of an important He says -I have told him he is on THE COURT: notice and he has to be careful and he should know what not to say. MR. O'BRIEN: THE COURT: I have to -So we are going to get on. And if you have any objections at the time, when you hear the wrong question, just make sure that you come up and -MR. SWIFT: MR. O'BRIEN: THE COURT: I will, Judge. Exactly. -- discuss it. Okay? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 7 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Let's get going. Okay. Just wait for the jury and then I'm going to ask you to raise your hand. THE WITNESS: THE COURT: THE WITNESS: MR. SWIFT: Okay. Should I sit? If you want to sit, sure. Okay. Your Honor, while we are waiting, I'm going to raise one more point. THE COURT: MR. SWIFT: Sure. In her affidavit, this witness talks about what a lab tech said about what they should -- what they should have done, that they should not have given -- in her opinion, she said the lab tech should not have given painkiller with such a high creatinine, an opinion of the lab tech. A lab tech does not have qualifications to express those opinions -- first of all, it's a hearsay statement. Number two, a lab tech would not have the qualifications to express that opinion at all. THE COURT: MR. SWIFT: Okay. And so I would object to any questions about an opinion of a lab tech based -- one, which is based on hearsay and, PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 8 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 two, is not qualified as a witness to express an opinion -THE COURT: MR. O'BRIEN: the hearsay one. Yeah, okay. I heard -- I would go with number one, I think that's a good one and I don't intend to go into it with this witness. THE COURT: MR. O'BRIEN: THE COURT: THE BAILIFF: please. (Jury present.) THE COURT: everyone. Thank you. Good morning, Thank you for all Okay. Thank you. The other one is okay. Okay. Okay. All rise for the jury, Please be seated. being here again. just for a second. And we're off the record (Off the record.) THE COURT: then. Let me ask you to stand up and raise your right hand. * * Okay. Okay. Let's get going PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 9 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. A Q BY MR. O'BRIEN: Q RHONDA EDWARDS, having been first duly sworn, testified as follows: DIRECT EXAMINATION All right. Good morning. State your name for the record, Rhonda K. Edwards. All right. Now, there's a microphone in Just front of you. be comfortable. That helps pick up your voice. Have you ever testified in a courtroom before a jury before? A Q A Q A Q A Q A Q A Q No. Kind of a new experience, isn't it? Yes. Where do you live? Katy. And what kind of work do you do today? I'm a homemaker now. Taking care of small children? One, yes. In 2004, what kind of work did you do? I was a phlebotomist. All right. Could you please spell PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 10 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 phlebotomist on the record? A Q A Q P-H-L-E-B-O-T-I-M-I-S-T. You missed the O, I think. Okay. Phlebotomist. I had trouble with that one too when I first -- what is a phlebotomist? A We take blood. A phlebotomist is -- "phleb" means vein, so you go into the vein for blood. Q What type of training does a phlebotomist get in order to perform that particular job at a hospital? A It depends on the state. Here hospitals are allowed to offer on-the-job training. Q In your case, have -- the training you received in the state of Texas, where did you receive that training? A Q I actually got it in Pennsylvania. Okay. Did you work at other hospitals in Pennsylvania before you came to Texas? A Q A Yes, yes. What kinds of hospitals, were they? Just a regular hospital, like St. Catherine's or a community hospital. Q How many years of experience have you had PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 11 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as a phlebotomist drawing blood and dealing with the responsibilities that a phlebotomist has in a hospital? A Q Since 2001, so nine years. On an average -- just on a day on an average -- I understand every day is different, most likely -- how many different patients would you draw blood from? A day. Q Now, those of us that have been in a Um, I would say 20 to 50, depending on the hospital and have had blood drawn, what is peculiar about the technique of drawing blood, either the art or science of drawing blood, from your perspective? A vein. The big thing is you have to feel the You can't always see it. You have to know what you're feeling and go for what you're feeling, not for what you see. Q If you are not trained to do it, are there consequences or are there things that can happen that could adversely affect the patients? A Q A hematoma. Yes, yes. Name just a few of those. You can blow the vein, causing a very big You can miss the vein, period, and go too PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 12 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deep into the joint. I have seen people get So synovial fluid, which is the fluid in the joint. if you don't know what you're doing, you can really hurt someone. Q At a hospital like St. Catherine's, are there trained phlebotomists whose sole job it is to draw blood, like yourself? A Q Yes. Do nurses -- RN nurses, registered nurses, or licensed vocational nurses, LVNs, do they often draw blood or is that usually the job of the phlebotomist? A It's usually the job of the phlebotomist. They do do it, but it's usually our job. Q Now, I want to focus on the work you did When did you first become at St. Catherine's. employed at St. Catherine's? A Q 2003. Do you remember when approximately? I know it's been a long time. A remember. Q And what job function did you have at April or March. That's all I can St. Catherine's when you first arrived in 2003? A We drew blood. We also processed PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 13 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 specimens to send out to -- to other labs. Q As a phlebotomist drawing blood, did you interact with the people in the lab that actually then analyzed the blood and performed tests on blood? A Q Yes, yes. Tell the jury a little bit about the kinds of tests that are done on blood after you draw it. Are you familiar with those tests? A Q Yes, yes. Excuse me. Before I get there, is it part of your training at the hospital to be familiar with the types of tests that are done on blood after it's drawn? A Q Yes, yes. And do you interact with the lab technicians who actually do the testing on the blood? A Q Yes, yes. With that understanding, tell the jury what types of tests are done on blood that you are familiar with that are part of your job as well as your training. A If we were giving a purple top, we would ask them to do a retic count or complete blood count PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 14 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with differential. If we were giving them a green or a red, we may ask for -- or you know, the label say this is a basic metabolic. We spin the blood down for them, for the basic metabolics and the complete metabolics and thyroid testing. It has to be done -- it can't be It has to be done on either done on whole blood. serum or plasma. Q All right. You said some things that I am unfamiliar with. Purple, green and red, were those colors you are referring to? A Q mean? A Yes. Let's start with purple. What does that When you say purple, is it a purple top? Yes, it's a purple top. And that's telling me that the reagent in there is EDTA potassium. Q right. Okay. Now I understand the purple. All Let's back up just a second. I understand they are in the little glass tubes, correct? A Q They are plastic tubes. Plastic. I'm sorry. They probably don't use glass anymore. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 15 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Not much, no. And then they have a purple top that sticks in the top so the fluid, whatever it is, doesn't come out, right? A Q Yeah, the cap is purple. And the cap denotes what? I mean, why is it purple versus -- I guess it could be any color, but -A Q A Q It tells --- purple means what? It tells me what's in the tube. And what types of fluids go in a purple tube, I guess is what I want to know? A Blood. We put blood in it. But it's not the blood that is telling me. It's telling me what's in the tube that the blood is going to be mixed with. Q A Okay. Because you can't do a basic metabolic on You will get a very high potassium. a purple top. Q What kind of tests do you run on a tube with a purple top? A Q A complete blood count, retic count. Okay. Blood count -- what does that tell a technician or a phlebotomist when you say a "blood PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 16 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 count"? that? A What kind of information is derived from H&H. You would also get a platelet count. It would also do You would get a red blood count. the differential on the white blood cells. Q I assume, having that information, doctors and nurses can then monitor the patient in terms of what their condition is -- do you know the significance, I guess I'm asking, of these blood counts and what they mean? A Yes. It would tell them if their patient, you know, was -- like if the white blood count was elevated, it could be significant of an infection or a cancer. Or if the H&H is low, it's anemia. You know, it's saying that they are not where they are supposed to be. Q A Q Okay. You said "H&H." What's H&H? That's hemoglobin and hematocrit. That means something to you if the hemoglobin is at a certain level, high or low, as well as hematocrit; is that correct? A Q Yes, yes. And besides the H&H and the white cell count, which might be indicative, if it's high, of infection, what else do you learn about a purple top PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 17 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tube? A You can do a sedimentation rate, which you put -- it's a whole blood that you put into a tube. And then you leave it for an hour. And what you're doing is you are watching all the red blood cells go down and the plasma come to the top. And it tells you if there's some inflammation in the body. Q Okay. So with the blood itself, as we go through these colors, you can learn a lot about what's going on inside someone's body; is that -A Q A Q A Yes. -- am I following that correctly? Yes, yes. Green, what does green do? Green is what we do most of our chemistries on, as well as our thyroid and some of our drug tests. Q Okay. Let's talk about green, then. What are the kinds of tests or information -- and again, this is all blood taken out of someone's body, correct? A Q Uh-huh. Yes, yes. In the green tube, what are you trying to assess differently than what you assessed with the purple tube? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 18 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A A green tube is the tube you would get the You are trying to see if someone has Same with potassium on. either a low potassium, high potassium. sodium, the different chemistries in the body, phosphorous. As well as the thyroid will tell you if something is elevated with your thyroid, or low -- either hyper- or hypothyroidism, things like that. Q Just chemistries in your body. In other words, how the body is producing the chemicals that are necessary to sustain life -A Q A Q Yes, yes. -- is that fair? Yes. You also mentioned drugs. What type of tests are performed about drugs in a green top tube? MR. SWIFT: Your Honor, excuse me, but I don't think -- this witness just draws blood. She doesn't do tests or interpret tests. THE COURT: MR. SWIFT: Okay. Come on up, please. This witness has, you know, three months of on-the-job training, no medical training at all. She draws blood. She delivers it to the lab. She doesn't interpret blood or determine what tests are run or what results do you get or what the results mean at PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 19 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all. She has absolutely no medical training at all. And I think it's inappropriate to be asking her what information do you get from tests. She doesn't run the tests. She doesn't interpret the tests. She merely draws blood So I think going into and takes it to the lab. what all these tests would show with respect to a patient's condition, et cetera, is not -- is way beyond the expertise of this witness. three months of on-the-job training -THE COURT: yourself, please. MR. SWIFT: I am -- I am repeating myself. You don't need to repeat And I will stop there. MR. O'BRIEN: She just went through a discussion of tests that are being conducted with the whole purple tube. Now I move to a different color with no objection, number one. Number two, it's clear the on-the-job training she received is about the tests that are performed on the blood that she draws. is within the scope of her training and knowledge to perform those functions. I'm not It asking her, like a lab technician, to go into PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 20 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anything more than to just describe why they draw the blood and what the color tubes are for, that's it, which she's already done with the purple tube without objection. MR. SWIFT: She's actually saying what the test results -- what information -THE COURT: I think there was a little bit more -- it was more interpretive than -- than just, you know, relating -MR. O'BRIEN: Okay. Well, I'll just -- without getting into the substance -THE COURT: you. Sustained then. Q (By Mr. O'Brien) The green tube has Yeah, okay. Great. Thank information that can be obtained about testing for drugs. A Q Are you familiar with that? Yes. All right. Tell the jury about the green tube and the tests that can be performed on the blood in a green tube. A It's been forever. I can't remember all of the tests on a green tube. Q A Well, just those you remember. A Depakote level we can do. In some PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 21 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cases, if there's not a separator at the bottom, we can also do an alcohol level. Q A can't -Q I don't want to have you talk about things Okay. So the separator draws drugs out. We you are not specifically trained for. A That I would be trained for. Yeah, if I'm going to get a drug level or an alcohol level, I have to know that I can't draw in a tube that has a separator in it because it will affect the value. Q All right. Now, the people that actually go ahead and analyze the blood you draw after -- and by the way, I think you indicated, do you spin the blood? A down. Q There are people whose job it is to Yes, we spin it down if it has to be spun specifically analyze the blood that you send to them; is that correct? A Q A Q A Yes. They are called what? They are med techs. Med techs? Yes, medical laboratory technicians. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 22 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ones. Q Was there a med tech person at St. Catherine's that you dealt with most often in connection with the analyzing of blood? A All of them. Because I've been on all of the shifts, so all of them. Q How many were there, if you remember, at St. Catherine's? A Oh, on a daily basis, maybe five different If you were third shift, one or two. Q Do you remember any of the names of any of the lab technicians that you worked with specifically as it might relate to the blood that you drew from Mr. Carswell, Jerry Carswell? A that time. Q Now, I want to talk first of all a little You already gave a Alicia Burkhardt was the only one there at bit about the hospital layout. deposition in this case at one time, didn't you? A Q Yes, yes. You gave a deposition in March of 2006; isn't that correct? A Q A Q I can't remember. It was a long time ago, right? Yes. In your deposition -- because I have PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 23 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received a copy, as everyone has -- there was an exhibit that was prepared. first -MR. O'BRIEN: THE COURT: Q May I approach, Your Honor? Yes. And I want to show you (By Mr. O'Brien) I'm going to show you Plaintiffs' Exhibit 270, ask you whether you have seen that particular document before. A Q Yes, yes. Is that something you drew at your deposition when questioned by the lawyers? A Q I believe so. Does that appear to be your handwriting, as opposed to a lawyer or someone else at the deposition? A Yes, it does. I mean the "X" and the -- the "X" and the "I" look like mine. MR. O'BRIEN: I will ask for admission of Plaintiffs' Exhibit 270, Your Honor. MR. SWIFT: THE COURT: No objection. It will be admitted. (Plaintiffs' Exhibit 270 is admitted.) Q (By Mr. O'Brien) Before I demonstrate to the jury, I want to ask you a few questions about that day. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 24 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do you have a distinct memory of January 22, 2004 and having found Mr. Jerry Carswell in his hospital bed? A Q that day? A deceased. Q I'm going to have you pull that microphone It was the first person I ever found Yes. Why do you have such a distinct memory of a little bit closer. So what time of the day do you remember -- if you can or at least what your usual shift was -- that you had gotten to the hospital on the morning of January 22, 2004? A I usually got there between 4:30 and quarter of 5:00. Q A Q What was your shift? It was 5:00 to 2:30. What was the first thing you did -- when you got to the hospital after you arrived and did any of your just-getting-organized things, what would you then do? What was your routine as a phlebotomist at the hospital? A I would sort my labels so that they were to go in a rotation from Room 213 to the last room PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 25 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the circle. Q I can't remember how many rooms. Did you work a particular unit or floor in the hospital, or did you go up and down the whole hospital? A For morning rounds, I would stay on that floor, but then I would go to another floor after I was done with the rounds there. Q In the morning of January 22 or just your regular routine, what floor would you go around, as you refer to it? A Q Med/Surg 2. Med/Surg 2, what is that? Is that the second floor? A Q hospital? A Q Yes. Do you remember how many rooms are part of Yes, yes. Is that the medical/surgical unit of the Med/Surg 2? A Q No. Was it your job to go to each and every room and draw blood on each and every patient in that room in your morning activities? A If they had orders and they were supposed Some people, they had to be drawn from the vein. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 26 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like a port that they would get blood from, and I didn't draw from that. But if it required a venipuncture, then yes, I was the one that took their blood. Q How do you know what rooms to go to on Med/Surg 2 that morning to draw blood from someone's vein? Is there a list or an instruction somewhere that tells you what rooms to go to? A The labels that we had had the patient's name as well as their room number on it. Q That morning, do you remember which room you went to first? A Q No. What was your usual practice or routine? I think you mentioned you had a routine of going around in a circle. What did that involve? Like what room would you normally start from? A If Room 213 had blood, I would start there But it just and then just work my way around. depended on who had blood. Q That morning was Jerry Carswell's room the first room that you had gone to to begin your activities that day? A Q No. He was in the 230s. Do you remember how many patients you went PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 27 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in to draw blood and see before you saw Mr. Carswell? A Q No. As you approached the room -- and I will represent to you in this record that Room 236 was the room for Mr. Carswell. As you are going down the hall getting ready to go into the room -- does it have a door on it, normally, these rooms? A Q Oh, yes. Okay. You have to push the door open obviously to get in; is that correct? A Q Yes. When you arrived there that morning, was the door open or closed? A Q I don't remember. As you approached Room 236, did you see anyone coming out of that room? A Q room. A Q Angela and Maria. All right. You mentioned two names, Yes. Identify who you saw coming out of that Angela and Maria. Angela who? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 28 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 she? A I don't know the last names. We always used first names. Q A Q A Did you know her as an RN or an LVN? LVN. How did you know Angela was an LVN? We just knew. I mean, she would say what she could do because she was an LVN. Q Had you known Angela from your activities at the hospital before you saw her the morning of January 22? A Q A Q Yes, yes. Did you talk to her? Yeah, uh-huh. I mean, she wasn't a stranger to you, was A Q A Q A Q A was an RN. Q Oh, no. She knew who you were, correct? Yes, yes. All right. Maria. Maria who? Again, we didn't do last names. What was Maria's job duties, if you knew? She was charge nurse that night. So she She was an RN. And you said she was the charge nurse that night. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 29 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes, I believe. You believe. All right. Now, first tell us what a charge nurse is. A Just from what I know, they are the ones that make sure orders are taken off the charts and that -- you know, they make the nursing schedule, you know, this nurse has these patients. any -- any -- that's all I know. about it. Q Okay. What makes you think that Maria was And if I don't know much the charge nurse that night? A I don't know. She was just at the station where the charge nurse sits, so just assumed. Q Fair enough. Okay. No, that's okay. That's all I want, is your state of knowledge. As Maria and Angela are coming out of the room, did you have a conversation with them? A Q Yes. Tell us, was it Angela or Maria that spoke back to you or said something to you? A Q They both said something to me. All right. Let's start with Maria. What did Maria say to you as they were coming out of the room and you were approaching PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 30 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Carswell's room? A Q A Q that? A Q No. I think Angela talked then. Angela, the LVN. What did "Does he have blood work this morning?" And what did you say? "Yes." Did she say anything else to you after All right. Angela tell you? A Q A Q A Q A Q That he should be awake. All right. And Maria -- shall I go on? We'll take it in little increments. Okay. He should be awake? Yes. All right. What happened next? Or who said what next? A medicine." Q "I just gave" -- Maria said, "I just gave Is that what you Maria said, "I just gave him some pain him some pain medication." remember her telling you? A Q Yes. Did Angela say anything about that, about PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 31 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the pain medication? A believe. Q Did Maria tell you what kind of pain Not about the pain medication, I don't medication was given to Jerry Carswell that morning? A Q A Q No. Did you ask her? No. Okay. Would have been -- anything you would have asked her? A Q No. All right. What happened next in the conversation? A Who said what? Maria said that Angela was going to go out And then Angela said to and smoke a cigarette. me -- she said, "Maria will be -- will be doing his vitals, so he should still be awake when you get to him." Q All right. Did either Maria or Angela have anything in their hand that you personally saw as they left Mr. Carswell's room on January 22, 2004? A Q Maria had a syringe in her hand. Looking at Maria with the syringe in her hand, having told you that they just gave PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 32 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Carswell pain medication, what did you form in your mind about what had just occurred in that room? A Just what they said, that they just gave him pain medication. Q A What happened next? I went to a room that I knew I had to take I told them that he was So I worked the time with the patient. my next patient after that patient. with that patient for about fifteen minutes, got their blood, and then I went to Mr. Carswell's room. Q Why didn't you just go in the room -- knowing he was awake and just go in and take his blood and then go back and do the other one? A Because that patient needed a little bit more time to get awake and -- some patients you just need to take a little more time with. And that's the patient that needed me most at that time. Q I mean, there's no particular reason other than your need to spend more time with the other patient? A Yes, yes. THE COURT: you. Q (By Mr. O'Brien) How long were you in this Can y'all hear well? Thank other patient's room -- and let's also set the time. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 33 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What time was it -- around what time was it that you saw Maria and Angela come out of Room 236, which you knew to be Mr. Carswell's room -A Q A Q It was --- that morning? It was around 5:00. How do you know it was around 5:00 o'clock? A labels. Because we write all of the times on our And I know I just got done writing 4:55 on my last label. Q Okay. So you're pretty sure -- in fact, are you almost -- you're certain, are you not? A Q Oh, yes, yes. Any doubt in your mind that it was around 5:00 o'clock when you approached Maria and Angela outside Mr. Carswell's room and they told you -Maria told you that you had just -- that she had just given Jerry Carswell pain medication and she had a syringe in her hand? A Q A Q That's correct. Any doubt about that at all? No, no doubt at all. Now, when did you return to Mr. Carswell's room after drawing blood from this other patient? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 34 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I didn't return. I never was there until -- yeah. Q A You never actually went in, did you? I didn't go there until after I was -- I was always outside the other patient's room. Q This is interesting -- you see them coming You have your conversation we have out of the room. just related. You never actually went into the room around 5:00 o'clock; is that correct? A Q No, no. Were you able to glance or look to see Mr. Carswell in the room in the bed? A Q A Q No, no. You didn't see anything at all, right? No, no. Okay. You go down the hall. Then in your normal routine, you come to Room 236, correct? A Q Yes. You are getting ready to enter the room; is that correct? A Q A Yes. As you opened the door, what did you see? I saw him laid across the bed with his feet over one side and his head on the other side of the bed. And the pillow was up here and the foot of PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 35 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the bed was here (indicating), so he was across the bed. Q Obviously -- had you ever seen a patient in that position on a bed before? A Q A Q yell? No. What was your immediate reaction? I called for Maria. What was your state? I mean, did you Did you say -- just walk down there -- were What was your state of mind? And I said to you agitated? A I was a little upset. her -- I said, "Maria, I think he's dead." Q Now, did Maria -- is that the same Maria that you had the conversation with who said that she had just given Mr. Carswell pain medication? A Q this? A swiftly. Q A Where was she? She was at the corner of the nurses' She came -- she came running. She came Yes. What did this Maria do when you told her station, standing. Q If I'm you on January 22 standing outside of Room 236 or thereabouts, how far away is Maria? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 36 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Oh -Is she up where the judge is or is it further down the hallway, would you say? A Q Maybe just a little farther, but not much. Okay. So it's clear on the record, the length of this courtroom, if you are standing kind of where the judge is, would it be where the door is roughly? A Q running? A Q A Yes, she's -- she's moving. What do you do first? We both checked his pulse. And then she Yes, yeah, roughly. Okay. Maria comes down the hall. Is she called the code. Q A wrist. Q Do you know whether it was you checking I guess you were all just You checked what and what did Maria check? I checked his neck and Maria checked his wrist or Maria neck? doing it pretty fast? A Q A Q Yeah, I checked his neck. What you believe? Yes. All right. Was his body still warm? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 37 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Yes. When you call a code, what does that mean? It just means you pull a button down that alerts everybody in the hospital that there's a real problem in that room and everybody that's able needs to come now. Q before? A A code, yes. But not with a deceased Have you ever been involved with a code patient, just a patient in distress. Q A Who comes when you call a code? A doctor and nurses. Usually the ER doctor is the one that comes and then the nurses that are supposed to be there. Q Do you know who the ER doctor was that came when this code was called? A Q A Dr. Fite. Did you know Dr. Fite by name? Just by Dr. Fite. We didn't do first names with doctors. Q Understandable. Do you remember who else was in the room at the time of the code? A I remember Maria and Ray. Those are the only two other than Dr. Fite. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 38 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 code? Q A Q Did you know Ray's last name? No. So it appears most people you knew at the hospital all had -- you did it by first name. A Q A Q A Q Oh, yeah, yes. Did everybody wear little name tags? Yes, yeah. Did it have a full name on it? Yes. But you pretty much just called everybody by their first name? A Q Yes. Now, was Angela in the room during the A Q called? A Q At the end of the code. Was she in the room when the code was No. Was she in the room when they were trying to resuscitate Jerry Carswell? A happened. I'm not sure. She came in, asked what And then Dr. Fite told her what she wanted done with the blood -- the test done on the blood. Q Was Dr. Fite giving orders to the nurses PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 39 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and even to you about what needed to be done? A She was giving orders to the nurses. She said, "Let's get I couldn't tell you what. blood," so I knew that was my cue to get blood. Q A And what did you do then? I went to his left hand. I put a tourniquet around and used a butterfly, which is a type of needle, and got the blood. Q Did you have any difficulty drawing blood from Jerry at that time? A I was able to get three, so not much. If it was a good flow, I would have gotten four tubes. But it was a nice flow, maybe not a great flow, but a nice flow of blood. Q What did that tell you? And I understand you don't have intense medical training like a doctor or even an RN, but what did that tell you about his pulse or his ability to have the blood flow so that you could get blood? MR. SWIFT: Q A Q correct? A Yes. We object. (By Mr. O'Brien) If you don't know -I don't know. No, I don't know. But you got three tubes of blood; is that PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 40 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A purple. Q What colors? The two I remember are the green and the I'm not sure what I got for the third tube. All right. What was done with that blood that was drawn at the code that you personally were involved with? A I drew it. my initials. I put a time on the labels, the time that I put my phlebotomy number, as well as And I labeled the blood. I went out in the hallway. Angela told me what Dr. Fite wanted And then I went downstairs, ordered on the blood. spun it and gave it to Alicia to run the tests and told her what tests needed to be run. Q Let's walk through that. You took the tubes -- do you put them in a bag or do you put them in some kind of thing to seal them? Or how do you carry the blood around once you have it? A Q Biohazard bag. All right. So the three tubes were put in a biohazard bag. A Q the lab? A Is it sealed? Yes, it has a Ziplok on it. Did you personally hand-carry it down to Yes, yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 41 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Angela. A And you mentioned a conversation with What was that conversation again? She followed me out of the room. And she said, "Dr. Fite would like cardiacs on this blood." And I said, "Okay." Q A Q A "Cardiacs on this blood"? Yes. Did that mean something to you? It means that I needed to order a CK, a CK-MB and a troponin. Q Let's walk through those. The three different tests, the types of tests? A They are cardiacs. It's just they are They're three -- three different types of tests. different levels in the body, but they're all done on the same tube. Q I'm clear? A Q A Q A Q They are the CK. CK. The CK-MB. CK-MB. And the troponin. Troponin? Okay. And they are the -- what again, so PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 42 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. You are not trained to tell this jury about what all those tests are for specifically; is that correct? A Q That's correct. Were any other orders given to you, through a nurse or anyone else, about any other kinds of tests that should be conducted on the blood? A Q No. So as you -- as the blood is taken down to the lab technician, would it be -- what is the next step? A What happens to that blood? I would spin it down. And then when it was done spinning, I would give it to Alicia to run the tests. And the labels that she would have to run the test would be on it so that it would run stat. Q stat." A Q The machines run all stats first. Okay. You used a term. "It would run Is that S-T-A-T? Yes. What does that mean to you, as a person in the medical profession, "stat"? A Q Now. Now? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 43 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Right now. All right. You give your first priority and attention to a stat order; is that right? A Q Absolutely. Now, let me back up for a minute. Plaintiffs' Exhibit 270, you will be able to see the exhibit on your screen there. Is Exhibit 270 a handwritten document that you prepared at your deposition? And I will represent to you that it We can look in occurred sometime in March of 2006. our records and get the specific date, but it's March 2006. A Q All right? I believe so, yes. And I want to be -- thank you. Actually, March 7 was the date it was taken, I will represent on the record. All right. Walk us through this. I see in the corner down here -- yeah, you have kind of a big block, "NS," and a number 3. What does "NS" stand for? A Q A Maria. Q Oh, I'm sorry. Sorry. That's a nurses' station. Nurses' station. What's "3" mean? That's for Actually, that's an "M." PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 44 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Sorry. Yes. All right. And then it looks like -- if you go sideways on it, what is that you have there? You see that little -- so you've got a round thing and you've got some writing near it. A Q The door. That's the door -- okay. So if we were to be looking at where the nurses' station is in relationship to Room 236, that's what you're trying to show here, right? A Q A Q A Q Yes. Maria at the nurses' station. Yes. There's the door? Yes. All right. The circle -- what does that Nurses' station down here? circle represent when you drew it there in your deposition? A Q A By the door? Yeah, the circle by the door. That's where my foot was. I stepped into the room with one foot. That's to say how far I went into the room before I got help. Q In other words, that's as far as you got PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 45 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 into the room, where that circle is, when you saw Jerry laying across the bed that you depicted in this diagram; is that correct? A Q Yes, yes. Now, you have an "X" -- I take it that the circular drawing you have made on the bed is Jerry's body; is that correct? A Q A feet were. Q And is that -- because I heard you talk What is that other little Yes. "X" means what? If I recall, it means that's where his about that earlier. notation right near "middle"? A Q A was. Q Then you have "top," "middle," "bottom," It looks like an "I." And what does that mean? I believe that's where I said his head what was the purpose of that? A It was to say where the bed was. The top was where the pillow was at. his feet were supposed to be. The bottom is where And of course the middle is where his torso was supposed to be. Q Then you have "rails down," underlined. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 46 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What does that mean? A His head and his feet, they weren't on rails -- you know, the bottom part of the bed -that's split rails on those beds. of those rails were not up. The bottom part They were just down. There So that he didn't hit his head on the rail. was no rail to stop him from his head falling. Q Was his body, as you have it here, positioned near the top, the middle or the bottom of the bed? A Q A The middle. The rails were down; is that right? The bottom rails were down. I don't recall about the top rails. Q All right. Tell the jury about the rails Are they -- it's not that they have on the bed. just one long rail, it's two rails? A Q Yes, yes. And was it the top section of the rails that were down or the bottom section? A Q A Q The bottom section was definitely down. And they were down on both sides? Yes. When you gave your deposition on March 7, 2006, had you told anyone from the hospital or PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 47 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anyone acting on behalf of the hospital the facts that you have just told this jury? A Yes. MR. SWIFT: this -THE COURT: up. (At bench, on record.) MR. SWIFT: This was the issue that I have Hold on. Hold on. Come on Your Honor, excuse me. To raised as to attorney-client communication at the time of the deposition. He's brought it to -- I think is -- it's a privileged communication. privilege. It's really the hospital's She was an This is an employee. employee at the time that she was deposed. It's the hospital's attorney-client communication. I'm sorry. It's not -- so getting into -- Make me nervous about yelling -But it's a hospital I think the talking loud. attorney-client privilege. communication is a privileged communication. I'm not going to repeat myself. THE COURT: Good. You need to speak up. MR. O'BRIEN: I am not going to go into PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 48 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the conversations themselves, just the fact that there was information she transmitted to representatives of the hospital, number one. Number two, fraud, that's been alleged here with respect to the investigation, is an exception to the attorney-client privilege without -- that's very clear. And if the Court needs any more discussion on that subject, my learned counsel here will probably give us a treatise on the crime fraud exception. MR. SWIFT: If you say to the witness, "Did you tell just what you said to someone from the hospital," that is -- that is a communication of what she said to her attorney -- or the hospital's attorney in attorney-client -- he said -- just the fact he told her these details is still attorney-client communication. communication. And if they think there's some sort of exception for fraud, does that mean anyone accused of fraud can't assert attorney-client privilege? That doesn't sound right to me. And I think it's a privileged So I think it's an attorney-client privilege. I think that it's the hospital's PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 49 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney-client privilege. And she should not be able to discuss what was communicated at that time. THE COURT: Overruled. (Counsel return to counsel table.) Q question. Before you gave your deposition on March 6, 2000 -- March 7, excuse me, 2006, did you tell anyone representing the hospital in any capacity the truth about what happened on January 22, 2004 at 5:00 o'clock a.m., that RN Maria had come out of Jerry Carswell's room with Angela and they had just given him pain medication and she had a syringe in her hand? Did you tell anyone from that side of the room those facts? A Q Yes. Did you, in your deposition on March 7, (By Mr. O'Brien) I'm going to repeat my 2006, tell anyone on this side of the room, Mr. Shaw, who took your deposition, Mrs. Carswell, who probably sat in your deposition, or anyone about the facts that happened on January 22 that you have just related to this jury? A No. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 50 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Why not? I was told to answer yes, no, don't recall and not volunteer any other information. Q When was the first time you told lawyers representing Linda, Justin and Jordan Carswell the facts that you have just related in this courtroom in front of this jury about what happened around 5:00 o'clock a.m. on January 22? A Q A Q A couple of weeks ago. Couple of weeks ago? Yes. Did Mr. Shaw contact you about being a witness in this case? A Q Yes. Did he come visit you and ask you what happened that day? A Q Yes. And then did you just tell him what you have told this jury? A Q Yes. I'm going to show you Plaintiffs' I don't Exhibit 272 for demonstrative purpose only. intend to put it into evidence. seen this document before. A Yes. Ask you if you have PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 51 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Is that an affidavit that you signed on July 31, 2010 that lays out what happened that morning -A Q A Q Yes. -- to Jerry Carswell? Yes, yes. In that affidavit, did you also tell us for the first time what happened to the code blood that you drew from Jerry Carswell? A Q Yes. Tell this jury, was Mr. Carswell's blood taken down to the lab for testing? A Q Yes. Did you personally hand it to Alicia Burkhardt, the lab technician, for her to conduct whatever tests she would conduct? A Q Yes. Did you have a conversation with Alicia Burkhardt about what had just happened to Mr. Carswell? A Q Yes. Did you tell her about your state of mind and how this had affected you? A Q Yes. What did you tell Alicia Burkhardt? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 52 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I was quite upset. I said, "I should have gone into his room first. You know, I just -- maybe if I had gone in first, maybe this wouldn't have happened." Q It wasn't your responsibility, was it, to As a go into that room to check on Mr. Carswell? phlebotomist, was it? A Q No. Do you still feel some guilt about not going in there? A Q I wish I would have gone in there. Do you think that if you had gone in at 5:00 o'clock or a nurse had gone in at 5:00 o'clock, Mr. Carswell might be alive today? wearing on you? MR. SWIFT: this witness. THE COURT: MR. O'BRIEN: Q Speculative on the part of Beyond her qualifications. Sustained. I will rephrase. Is that what's (By Mr. O'Brien) Is that what's going on in your head? A Just he was alone, you know. So I just -- it affects you to see -- to see that. Q In your presence, did Alicia Burkhardt begin to run tests on the blood that you had given PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 53 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her that belonged to Jerry Carswell that you drew during the code? A Q I don't recall that. Were you aware that orders were sent by the hospital down to Ms. Burkhardt to cancel all tests that had not yet been performed for Jerry Carswell? A Q A Q A Q Yes. How do you know that? I was the one that took the phone call. Who did you take that phone call from? I don't recall. Was it someone in the hospital that told you not to conduct any more tests on Jerry Carswell's blood? A Q Yes. I'm going to show you a document, I'm going to represent to Plaintiffs' Exhibit 271. you that this is a document out of Christus St. Catherine's Hospital records for Jerry Carswell. Have you ever actually seen that document yourself? A Q I believe so, yes. Is that a document in the hospital records of Mr. Carswell that tells us that the hospital itself canceled tests on his blood? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 54 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SWIFT: We object to the question. This witness would not know -- the physician order -THE COURT: Come on up. (At bench, on record.) MR. SWIFT: This witness wouldn't know from a document that reflects the canceling of tests who's making the decision to cancel this test. Doctors cancel tests. For her to say does this mean the hospital canceled the tests, this witness wouldn't know. Doctors canceled the tests. She's not on the floor to know who's canceling the tests. THE COURT: MR. SWIFT: Okay. That's my objection. She doesn't have any personal knowledge with respect to the -- who's making the decisions to cancel the tests. MR. O'BRIEN: All I'm going to ask her is, is this the document that establishes what she knew at the time, that the tests were canceled. I'm not going into anything other than what's reflected on the document itself. THE COURT: MR. SWIFT: Okay. That's fine. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 55 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q THE COURT: MR. O'BRIEN: Okay. Counsel, come on up. I understand the witness would like a bathroom break. THE COURT: MR. O'BRIEN: THE COURT: everyone or -MR. O'BRIEN: THE COURT: break, guys. (Break taken.) THE COURT: everyone. MR. O'BRIEN: Thank you, Judge. Thank you. Please be seated, I think it's a good time. Yeah, let's take a five-minute Oh, you want a bathroom break. She's pregnant. So we should take a break for (By Mr. O'Brien) I think when we broke we were starting to talk about 271. MR. O'BRIEN: Judge, have I asked for admission of 271 yet on the record? THE COURT: MR. O'BRIEN: I don't know that you have. Okay. Thank you. I will at this time ask for admission of Exhibit 271. record. MR. SWIFT: This is the patient medical That's the -- out of the medical records you are talking about? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 56 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q then. MR. O'BRIEN: MR. SWIFT: THE COURT: Yes. No objection. Okay. It will be admitted (Plaintiff's Exhibit 271 is admitted.) (By Mr. O'Brien) By the way, are you pregnant right now? A Q Yes. Exhibit 271, is this the part of the hospital record for Jerry Carswell that reflects that certain tests were canceled? A Q Yes. And it lists the types of tests that were canceled, correct? A Q Yes. Now, it is not your job to actually conduct the tests on blood; is that true? A Q That's correct. That's the job of a person like Alicia Burkhardt; is that correct? A Q Yes. After you took the blood down to Alicia Burkhardt, did she have a conversation in your presence with either Maria, the RN, or Angela, the LVN? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 57 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hear. half. A Q Yes. Was that a conversation in your presence or was it a conversation on the phone? A On the phone. I could only hear Alicia's Q I will not ask you the half you didn't Pretty hard to relate that back anyway, just the part that you heard. What did Alicia Burkhardt say in your presence -- and by the way, how did you know she was talking either to Angela or Maria? A She asked for one or the other. MR. SWIFT: Your Honor, I think it's a We can certainly hear hearsay conversation. from Ms. Burkhardt about what conversation took place. They're -- this is still an It's a hearsay out-of-court statement. statement. MR. O'BRIEN: No, I'm just trying to I establish that there was a conversation. haven't gotten into the substance of the conversation. THE COURT: then. MR. SWIFT: Okay. Overruled at this time I'm not objecting, Your Honor, PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 58 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the fact a conversation took place, it's just the substance of it. THE COURT: Q Okay. Thank you. (By Mr. O'Brien) You were there when Alicia Burkhardt -- heard Alicia Burkhardt say the name Angela or Maria? You remember her saying their last names or how did it happen? A Maria. Q And did Ms. Burkhardt talk to them for a No, she just asked for either Angela or period of time on the phone? A She talked to one of them. I don't know which one, though. Q But you believe it was one or the other, you don't know which one; is that correct? A Q A Q That's correct. How long did that conversation last? Well, just a couple of minutes. After she hung up the phone with Maria and Angela, did Alicia Burkhardt tell you what they said? A She did. MR. O'BRIEN: conversation. party. I'm going to get into that I believe it's an admission by a I will just ask the question. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 59 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q (By Mr. O'Brien) What did Alicia Burkhardt tell you that either Angela or Maria told her in that phone conversation? MR. SWIFT: THE COURT: This is all double hearsay. Okay. Come on up. (At bench, on record.) MR. SWIFT: statement. It's still an out-of-court It's a It's a hearsay statement. double hearsay statement. It's what this witness said to her about what somebody else said to her. hearsay. I mean, it's clearly a double And to the extent that there's an admission, there has to be some sort of ratified admission. But what somebody said or what -- well, you understand my -THE COURT: MR. O'BRIEN: Yeah. Clearly it is not hearsay because the law says an admission by an agent is an exception to the hearsay rule. So if you want to start out as hearsay, it's clearly accepted by the rule as an admission by a party opponent. agents. This hospital acts only through its Alicia Burkhardt, Nurse Corral or Nurse Delucia, they are agents. MR. SWIFT: What is the admission, I guess PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 60 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is what I am asking? MR. O'BRIEN: about it. THE COURT: Sustained. MR. McCABE: is. jury. THE COURT: MR. O'BRIEN: THE COURT: We can do that. Why don't we do that and -Okay. They want to find out We have to find out what it But we don't know that. I guess we are going to hear We can do it outside the presence of the out of the presence of the jury. MR. SWIFT: admission is. Or just tell us what the I'm sure you know what the witness is going to -MR. O'BRIEN: MR. SWIFT: MR. O'BRIEN: THE COURT: MR. O'BRIEN: I don't. It was in the -- I'm assuming -It's in the affidavit. Can we -Should not given him the Demerol, given his creatinine. MR. SWIFT: First of all, the witness they It's a are referring to is not qualified. medical opinion -- it's not a statement, it's a medical opinion. And it is an opinion from PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 61 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 someone certainly not qualified to express such an opinion. And it's not an admission from the hospital because they are not ratifying that opinion or accepting that opinion. double hearsay. And it's a She's It's double hearsay. not qualified to express it, and it is an -not a statement, but an opinion. MR. McCABE: It's how a person felt and It was a -Hold on. what a person believed. THE COURT: Hold on. You were through? MR. SWIFT: I was just going to say that there's no -- it's not an opinion of the hospital. It's not our opinion. It's something stated. It's an opinion expressed by an unqualified person in a conversation that she had with her. It's not our admission. It's not an admission of a party opponent. Anyway, not going -THE COURT: MR. O'BRIEN: Thank you. It's clearly the exception to the hearsay rule and an agent's statement. It doesn't -- goes to the weight. It has nothing to do with whether or not she's qualified. It's just the fact of the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 62 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement. He keeps coming up with, oh, it has I've never to be ratified by the hospital. heard such a creature. THE COURT: MR. HUANG: Hold on. Hold on. Your Honor, for it to be an admission by a party opponent, it needs to be a statement that was made as part of her duties, as part of her employment. And an opinion as to what should or shouldn't have been done, particularly by someone who is not qualified to render that opinion, is not a statement in the course and scope of employment, something that's made on behalf of the organization. MR. SWIFT: Okay. May I have one more comment? And the other comment is that it's being offered for the truth -- for the opinion of -that is being offered as an opinion that the medication should not have been given because of the creatinine level. offered. That's why it's being It's not being offered for any other reason other than to prove that the drug shouldn't be given with the creatinine. witness is not qualified, Your Honor. THE COURT: Okay. Thank you. Everybody is This Who needs to speak first? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 63 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ready to go. MR. McCABE: Whatever it is, admission by a party opponent or not, that is one way it is not hearsay -THE COURT: Very gentle with this microphone because it goes directly to her ear. MR. McCABE: Whether it's an admission by a party opponent or not, it is a statement of a person's feeling at the time. Now, sure, we are not putting it into evidence necessarily as a statement by the hospital. good point. Mr. Huang has a But just as the witness was able to testify how she felt when she found Mr. Carswell dead -- not a medical opinion. She's not qualified to give an opinion about cause of death, but she's entitled to testify about what her impressions were at the time. They can make it clear on cross-examination that she's not speaking for the hospital necessarily when she said something or neither is the person on the other end of the phone speaking for the hospital, but she is entitled -- and we are entitled to elicit her testimony about what she heard, who said what at the time in order to set the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 64 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 entire context of what was going on. They are very vigorous about trying to hide what happened at the time. that on. MR. SWIFT: THE COURT: She cannot testify -Wait. Wait. Wait. Y'all We are entitled to put talked about three times before they had a chance and they are dying to say something too. MR. SHAW: is a lab tech. Your Honor, Employee Burkhardt She is responsible for getting the blood results and knowing high or low and stat, so she can give information about those results to the caregivers. Alicia Burkhardt is going to say that she told Rhonda that the creatinine was too high, that they had just had, because they ran the tests. And that's what the conversation was with Alicia -- with Delucia and Corral. Burkhardt is their employee. She is responsible for testing this blood and getting these results and recording them. She knows, she's been doing it for years, and she will be down here to also tell the Court that. But that's what this witness understands and knew what happened. And I think we are entitled to PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 65 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 get it because it is hearsay against a party opponent. MR. McCABE: The Court can instruct the jury in order -- just to take this as a person saying what was said at the time. We are not even offering it for the truth of the matter asserted. That would make it hearsay. If it's not being offered for the truth of what somebody's saying, but only to show that they said it, it's not hearsay in the first place. The Court can instruct the jury. THE COURT: MR. SWIFT: Last chance. She can't testify about how That witness has to come She can't someone else felt. down here and tell us how she felt. testify about how somebody else felt. Number two, she's going to testify not as to whether the creatinine was high or low, I don't mind that, but expressing an opinion as to whether or not the pain medication should be given is not something she should be qualified to testify about. It's not -- by their own statements, it's not an admission of the hospital and should not come into evidence. THE COURT: Overruled. You can make sure PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 66 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that you bring out her qualifications later on. Thank you. (Counsel return to counsel table.) THE COURT: Q Go ahead. (By Mr. O'Brien) Where we left off was that there was a conversation between Alicia Burkhardt -- Carl made a boo-boo -- Alicia Burkhardt with Maria and Angela. Alicia gets off the phone. You're standing with her in the lab; is that correct? A Q Yes. Alicia Burkhardt tells you something after her conversation with Maria and/or Angela, whichever one was on the phone. to you? MR. SWIFT: Just for the purpose of the What did Alicia Burkhardt say record, Your Honor, it's this question to which we object because it's hearsay as to what Alicia Burkhardt said, who's going to be a witness apparently. she said. She can testify as to what Coming from this witness it is clearly hearsay. THE COURT: Thank you. You have put it on I the record already. appreciate it. Thank you, Counsel. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 67 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 done. Q A (By Mr. O'Brien) You may answer. She said that there's nothing I could have And she's like, "His creatinine was too high for pain medicine, the pain medicine they gave." Q All right. I don't know if everyone heard you so you are going to have to pull that microphone up, please. Let's try that again, a little louder. I know this is an unusual process for you. What did Alicia Burkhardt say to you, as you recall her words, on January 22, 2004 in that lab room? A She said there was nothing I could have done to help him, that the pain medicine should not have been given because his creatinine was too high. Q The pain medication should not have been given because his creatinine levels were too high. Is that what you remember Alicia Burkhardt telling you in trying to comfort you about your guilt and your feelings of sadness? MR. SWIFT: Your Honor, just so -- forgive me, for the record, our objection, in addition to the hearsay, is that this tech is completely unqualified to express an opinion as to whether pain medication should or shouldn't be given or whether it should or shouldn't be given in PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 68 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 light of creatinine level. So we object to it because it's being offered somehow for the purpose of the opinion from someone extraordinarily unqualified to express that opinion. THE COURT: Counsel. MR. SWIFT: Your Honor, we ask that -- for Thank you. I appreciate it, an instruction from the Court to the jury with respect to the limited purpose of the offer of that testimony. THE COURT: Okay. We'll hear -- we will We'll hear what you be done with the witness. have to question her about, and then we will talk about instructions at that time. MR. SWIFT: THE COURT: Appreciate it. Q (By Mr. O'Brien) Now, you yourself don't All right. Thank you, Counsel. Okay? know -- well, you are not trained to know whether certain drugs should be given with certain creatinine levels, are you? A Q No, I'm not trained for that. You are not here to tell this jury that what Alicia Burkhardt said to you was right or PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 69 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrong, are you? A Q That's correct. I'm not. And you don't know whether or not Alicia Burkhardt is qualified enough to even express that opinion; is that true? A Q That's true. You just don't know. So we are going to That's not why I'm have to hear from other people. asking you this question. When you are in the room, you had already let, had you not, Alicia Burkhardt know how you felt when you found Mr. Carswell dead in his room; is that right? A Q That's right. And in response to what you told her about your feelings, she tried to get ahold of Jerry's nurses; is that correct? MR. SWIFT: witness. THE COURT: Come on up, please. Objection. Leading the (At Bench, on record.) THE COURT: I made a purpose of doing this sidebar so that we don't have to get up every two seconds to object. So if they have any objection that you haven't already put on the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 70 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record, please put it on the record right now and leave it on the record for appeal. let's get going. But And you can make a running objection and I will accept that, too. MR. SWIFT: What I was objecting to here is he's leading the witness with every question. MR. O'BRIEN: It's not my witness. She's a hospital employee. At the time -THE COURT: MR. O'BRIEN: MR. SWIFT: THE COURT: MR. O'BRIEN: THE COURT: She's an adverse witness. You know what -She was at the time. That doesn't make her -She's your witness. No, she's not. She's your witness. Appreciate it. Thank you, Counsel. (Counsel return to counsel table.) Q (By Mr. O'Brien) What was going -- what did you tell Alicia Burkhardt about your state of mind after finding Jerry Carswell dead in his hospital room? feelings? A Yes, I did. MR. SWIFT: It's not relevant. We object Did you speak to her about your PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 71 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to it. MR. O'BRIEN: I dare say it's very relevant to why Alicia Burkhardt told her what is already before the jury. the context. THE COURT: Q Okay. Overruled. Did you I just want to lay (By Mr. O'Brien) You may answer. tell Alicia Burkhardt your feelings, and did she get on the phone to talk to the nurses who were in charge of him to find out what happened? A Q Yes. And in response to her inquiry with those people, she said what to you? A She said, "There's nothing you could have He shouldn't have been given that done to help him. pain medicine with his high creatinine." Q Now I want to switch gears slightly. You are still in the lab. have Jerry's blood. You still The tests have been canceled to We're up that do any more testing on his blood. far. Okay. What did you do next? A Q A I had to finish my rounds. You had to go back to work? Yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 72 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did anyone from the hospital administration, risk management, the people that are in control of the hospital, come and talk to you about what happened to Jerry Carswell since you're the person that first found him? A Q No. This code blood that was drawn, do you know what happened to it? A Q A Q Alicia put it in a bag. Did you watch her put it in a bag? No, I didn't watch her put it in a bag. Okay. Did you see that blood that you drew from Jerry Carswell in a sealed bag at some point? A Q Yes. Did you yourself hand it to a courier for delivery to some other location? A Q A Q A Q next day? A Sometimes we had a couple days off between Yes. When did that occur? It happened on my next shift. Which would have been when? I cannot recall. Would it have been that same day or the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 73 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 our shifts, so I really don't know. Q When the tests were canceled, you're in the lab with Alicia Burkhardt, you saw -- you didn't see her actually put the blood in a bag, correct? A Q blood? A She showed me the blood. We went back to Correct. Did you see her do anything with the the refrigerator. She put it in the refrigerator. So She was like, "Right here is the blood you drew. if anybody comes, this -- this is your blood that you drew." Q A Q A Q And did it have labels on it, like -Yes. -- a patient name? Yes. And then at some time after that discussion, you went back to work? A Q Yes. And at your next shift -You don't recall when it was, correct? A Q Correct. -- you personally gave the blood of Jerry Carswell that had been in the refrigerator that was PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 74 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in this sealed bag to a courier for delivery to where? A Q A Q St. Joseph's. St. Joseph's Hospital? Yes. You personally handed it to someone from St. Joseph's; is that correct? A Q Yes. After that blood was taken to St. Joseph's Hospital, do you know what happened to it? A Q No. The last time you saw that blood was when you gave it to the courier; is that correct? A Q That's correct. Is there a process or protocol that when a courier comes to get blood, that they sign a receipt or there is some record that that blood is now being transferred from St. Catherine's to St. Joseph's? A Yeah. The courier would sign it into the log and put his initials and the time that he picked it up. Q So if we want to know when the courier picked up the code blood for Jerry Carswell for delivery to St. Joseph's, there should be a log entry that shows the date and time; is that correct? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 75 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q That's correct. And that should be somewhere in the medical records; is that true? A Q A No. Oh, you don't know? No. It doesn't go into the medical records, no. Q Oh. Is it a part of the hospital record, as far as you know? A Q A Q It's part of the lab record. The lab record? Yes. It should be in the records of the laboratory, correct? A Q A Q A Q Correct. Of which hospital? St. Catherine's. Okay. Has this been difficult for you? Nerve-racking. Have you decided to come here and tell this jury what you know -- what you know to be the truth? A Yes. MR. O'BRIEN: THE COURT: I pass the witness. Thank you. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 76 Rhonda Edwards - August 13, 2010 Direct Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SWIFT: Q * CROSS-EXAMINATION Ms. Edwards, I'm Robert Swift. I don't know that you and I have ever met, although we did speak briefly on the telephone -A Q A Q A Q Yes. -- a couple of weeks ago; is that right? I believe so. And I do have some questions for you -Okay. -- on your testimony. I want to start by talking a little bit about your background -A Q Okay. -- before you came to St. Catherine's. My understanding is that you -- did you grow up in Pennsylvania? A Q Yes. Okay. Then did you finish high school in Pennsylvania? A Q Yes. And apparently you went briefly to college; is that right? A Yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 77 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do? Q A Q About one semester? Yes. Then after that, what kind of work did you A I was a school bus driver while I got certification for medical transcription. Q And for how long a period of time were you a bus driver? A Q A Q I can't remember. Was it months or years? Years. Years. Okay. Then while you were working as a bus driver, you went to classes to be a transcriptionist; is that right? A but, yes. Q A Okay. And a transcriptionist is what? Yeah, it was a home correspondence course, When the doctor is dictating on like a We put the recorder, then it comes to us. headphones on and -Q A Q Transcribe it? -- transcribe it, yeah. And then apparently you had some on-the-job training to be a phlebotomist; is that PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 78 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right? A Q A Yes. And how long was that on-the-job training? It's one month or 100 sticks, whichever comes first. Q Okay. Where did you do that one-month on-the-job training? A Q A Q Evangelical Hospital. Where is that? It's in Pennsylvania. And then did you work thereafter -- after your on-the-job training, did you work as a phlebotomist? A Q A Q Yes. Where? In their doctors' offices. Okay. And by the way, to practice as a phlebotomist, is there -- does it require any sort of licensure? A Q A Q A Q It depends on the state. All right. No. How about Pennsylvania? No. How about any sort of certification? Is How about the State of Texas? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 79 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there any certification requirement to work as a phlebotomist in Pennsylvania or Texas? A Q No. And apparently you came to Houston -- well, let me back up. So to practice as a phlebotomist in Texas and Pennsylvania anyway, you don't have to be certified or credentialed; you just have to have this on-the-job training? A Q A Q A Q A Q Yeah, you just have to be trained. So you are not a registered nurse -Oh, no. -- or a licensed vocational nurse -No. -- or a certified nurse assistant? No. In fact, you have no nursing training at all; is that right? A Q Just CPR. All right. In the laboratory, the physician's above -- you were working I guess as a phlebotomist or lab assistant; is that right? A Q A Yes. And then above that is a lab tech? Yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 80 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And Angela -- I'm sorry, Alicia Burkhardt was a lab tech, right? A Q A Q Yes. And then above that is what? The director of the lab. Okay. Now, I want to ask you a little bit about your contacts with Mr. O'Brien and Mr. Shaw, if I may. First of all, our conversation on the telephone was, by my notes, on July 29, 2010. that sound about right to you? A Q It sounds about right. It was about a 15- or 20-minute phone Does conversation? A Q Yeah, that's correct. And actually, my assistant called you to attempt to set up a meeting with you -- between you and I, right? A Q Yes. And then you spoke to her briefly and then she transferred you to me -- to speak to me on the phone, correct? A Q That's correct. And we did talk during that 15 or 20 minutes about your recollection of events at PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 81 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 St. Catherine's and your involvement in those events? A Q with you. Yes. And I did ask for an opportunity to meet And you told me that you did not want to meet with me unless Mr. Shaw was present at that meeting? A Q Unless both parties, yes. And -- and you said that you didn't want your words twisted and so you wanted -- if you were going to meet with me, you wanted Mr. Shaw or Mr. O'Brien to be present if you met with me? A Q Yes. And I did assure you in that phone conversation that I wanted you to be completely truthful. A Q Is that what I said? Yes, yes. And I said that -- that I did tell you I wanted you to be truthful because I thought the truth was the hospital's best defense in the case? A I don't remember you saying that, but I do know you said just be truthful. Q Now, apparently, according to your affidavit, Mr. Shaw came to your home on a Friday evening, July 23, 2010, about six days before our PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 82 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 phone conversation, correct? A Q That would be correct, yeah. And did you know that he was coming or did he just ring your doorbell? A Q I didn't know he was coming. Did he just come up to your door and ring your doorbell and knock on your door? A Q Yes, he just rang my doorbell. So there was no arrangement for an advanced sort of meeting? A Q advance? A Q No, no. Okay. Then apparently you met with him at No. You didn't arrange that meeting in that time and went over your recollection of the events at St. Catherine's; is that right? A Q Yes. And then -- and is that the first contact that you had with Mr. Shaw? A Q Other than the first deposition, yes. Okay. That's right. He took your deposition? A Q Yes, yes. And now -- then apparently about -- about PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 83 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 five days later or so, Mr. Shaw came back to your home with Mr. O'Brien; is that right? A Q That's correct. And this was a second meeting then you had with Mr. Shaw, the first meeting with Mr. O'Brien? A Q Yes, yes. And you did understand, I'm sure, meeting with them, that they were suing the hospital and that they were accusing the nurses -- your nursing colleagues of negligence in the care of Mr. Carswell. A You understood that? I understood there was a lawsuit involving They told me suing, but I didn't know the details. none of the details. I knew. Q Okay. They just wanted to know what Now -- and then after this meeting on the 28th with Mr. Shaw and Mr. O'Brien, the following afternoon is when you spoke to me on the telephone? A Q I believe so. Right. And that's when you told me that you did not want to meet with me unless they would be present, correct? A Q Correct. And then are you aware that the very next PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 84 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 day, that would be July the 30th, 2010, we received the first version of your affidavit? A Q I believe they told me that, yes. Okay. And did they -- did they -- after you spoke to me on the telephone, did you call Mr. Shaw and Mr. O'Brien and tell them that you had spoken with me? A I got a phone call from Mr. Shaw. And I said that you guys had been in contact. And I told him the same thing that I told you, that the only way that I wanted to meet is if both parties were there. Q Okay. Well, then, so he -- what was the purpose of his call after I spoke to you? A Q I can't remember. But in any event, you told him that you had spoken to me, correct? A Q Yes. Did he tell you that he wanted you to prepare an affidavit when he called you that evening? A I told him that I really didn't want to talk until I was on the stand, and then he brought that up. He said, "Well, we can do something" -I mean, I'm you know, because I was stressed. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 85 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pregnant. I can't be stressed like that. I was very, very stressed. Q A Q Stressed in talking to them? And everybody, yes. Okay. And then -- so he said if we could do this by an affidavit? A Q Yes. And then did they prepare an affidavit based on what you had said to them and then send it back out to you for signature? A No. I asked them to come to the house. And I looked at it and And they came to the house. I -- I made it my words. Q affidavit? A Q They did, yes. Well -- but did they prepare the That is, did they listen to what you said and then wrote things down and typed it up and gave it back to you to sign? A Q Yes, and to review a couple of times. Okay. And were they present with you while you reviewed it a couple of times? A Q Yes, yes. So they were with you and interacting with you in the process of preparing the affidavit; is PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 86 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that right? A Q That's correct. And there were revisions to the affidavit along the way? A Q Absolutely. And then so they left -- this would have been the third occasion that they came to your house; is that right? A Q That's correct. And so then they left. And was that the evening after I spoke to you on the phone? A Q I believe so, yes. So then after I spoke to you on the phone, perhaps 4:00 in the afternoon, somewhere around that time, that evening Mr. Shaw and perhaps somebody else came to your home? A Q time? A Q A Q A notary public was with him. Was there a typist that typed it? The notary was the one that was typing it. So Mr. Shaw and a notary came to your home Yes. And who else was with Mr. Shaw at that and you and Mr. Shaw sat down and worked on the language of the affidavit? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 87 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. Okay. Very much so, yes. And then there were several revisions before a final affidavit was finalized? A Q Yes. Okay. And then my understanding is that even after the first affidavit was sent to me the following day, there was yet another affidavit that you -- where there was a revision made? A Q Yes. And that affidavit was signed by you -- let's see, that would have been two days later, July the 31st. A Q Yes. Okay. So did you -- did you indicate to Mr. Shaw that there was some mistake in the affidavit and it had to be corrected? A Q Yes, yes. Did you have an opportunity to read your deposition to see if the affidavit was consistent with the deposition and you found the inconsistency between your affidavit and the deposition and so you made that correction? A I had the opportunity to read my deposition, but I didn't get a chance to read my deposition. I was reading that -- that -- I PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 88 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 noticed -- I don't take pulses on the wrist. always do the neck. Q I So then after you finalized the first affidavit in your meeting with Mr. Shaw, a second affidavit was prepared with the correction in it; is that right? A Q That is correct. And this process of preparing these affidavits then was occurring over a period of a couple of days, the first affidavit on July the 29th and the second affidavit on July 31st, correct? A Q That is correct. Now -- and did the -- was the second affidavit prepared in your home with a notary or was it prepared in Mr. Shaw's office and sent out to you? A It was prepared in Mr. Shaw's office and it was brought to my home. Q Okay. Did a courier or somebody like that knock on your door and say, "Here's the second affidavit"? A Q No, Mr. Shaw brought it to me. So you met with Mr. Shaw again with respect to the signing of the second affidavit? A Yes, yes, briefly. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 89 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, have you had an opportunity then to meet with them since you have signed the second affidavit? A Q A No. How about on the telephone? I called them to see what time I needed to I wanted to just say it in court. be here, but no. I needed to be left alone. Q So your last meeting with them would have been then on July 31st? A Q Absolutely, yes. I want to talk to you a little bit -- a little further about our conversation -A Q Okay. -- that we had on the telephone. And you told me -- is it true that you told me that when you observed Ms. Corral and Ms. Delucia come out of the room around 5:00 a.m., Mrs. Corral said -- Ms. Corral said that she had just given the pain medication, but he was awake and doing well and that you could draw blood on him? A First names. I don't know which is which. Can you put -Q I'm sorry. Maria said she had just given pain PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 90 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 medications, he was awake and doing well and that you could draw blood? A She said that he was awake and I could go draw blood, yes. Q well? A No, I didn't say that. He just was awake, She didn't I just assumed Did you tell me that she said he was doing that she was just in to check on him. tell me whether he was good or not. he was. Q Did she say then that she was just in to check on him? A room, yes. Q By the way, when you saw her, was Yes, yes. I watched them come out of the Mr. Carswell's door open or closed? A Q I do not recall. And was it open or closed when you walked up to it later to draw the blood? A Q I don't recall. Were they standing in the hallway, Nurse Delucia -- that is -- I will use their first names. Angela and Maria, were they standing in the hallway when you came up to them? A No. They were walking and they came up to PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 91 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me -- they didn't come like right up to me. They stopped in front of the nurses' station and talked and asked me. Q here. All right. So did -- I may be confused Did the conversation that you had with Maria and Angela occur at the nurses' station, then they walked up to you? A They were at the nurses' station. I was in front of one of the patient's rooms. Q A Q Is this when you first talked to them? Yes, when I first talked to them. Okay. But when you first talked to Angela and you first talked to Maria, when you came to the unit, Angela and Maria were standing at the nurses' station, correct? A No. I watched them come out of the room And we and I was going to my next room to draw. were talking. And then I stopped in front of the patient's room and they stopped in front of the nurses' station and we continued to talk. Q A Q Okay. Yes. So then what you're saying is that you observed them coming from Mr. Carswell's room and the conversation that you had where Maria said, "I PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 92 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just gave him pain medication" and that "he" -- that "I just checked on him" and that "you can draw blood," when they were speaking those words to you -- when Maria was, she was standing at the nurses' station? A Yeah. Yeah. She was -- they were talking You know, it was -- then we while we were passing. both stopped at our perspective [sic] places and continued our conversation. Q Okay. Are you saying then that you were passing them in the hallway? A Yeah, we were passing. I had to go in front of the nurses' station to get to my next room. Q Okay. So as you were approaching each other, you had -- you heard -- that's when Maria said to you about being just in Mr. Carswell's room and you could draw blood, et cetera? A Yes, she asked if he had any blood work. And I said yes, and then she said he was awake, I could draw if I wanted. Q So that conversation actually took place in the hallway -A Q A Uh-huh. -- at the nurses' station, right? Yeah, I was -- I was here and they were -- PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 93 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I mean, I was in front of another room and they were -- we were probably from here to the table there away from each other, but enough that we could hear each other fine, you know, yeah. Q A So you were that far away? Yeah, we passed each other. And I stopped where I was going to go into the room and they stopped at the nurses' station. Q All right. And so then -- and you were about as far away as you are from Mr. O'Brien, correct? A Q Yes, yeah. And then she said to you -- that's how far away you were when Maria spoke to you? A Q Yeah, yeah. And when she spoke to you, she and Angela were standing at the nurses' station? A Yes. When we finished our conversation, that's where they were. Q And now, you also said -- and I think you said in your testimony -- well, you said to me anyway -- that Nurse Corral said that Ms. Delucia was going on a break. A break. Maria said that Angela was going on a PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 94 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 room. yes. Q Maria said that Angela was going to be going on a break? A Yeah, she was going to smoke a cigarette, Q And that she, Maria, would be looking in on Mr. Carswell during the time that she was on the break? A Yes, she said she was going to be doing vitals on him. Q Okay. You also said to me that if they are claiming you said that Mr. Carswell was not properly monitored, you knew, by what you observed, that that was not the case? A I knew that they had just come out of his Q And then what you said to me was you knew that that was not the case, that he had been properly monitored, correct? A Yeah -- I said it in respect to what I And what I had said wanted to say in my deposition. to you was, if the other side was saying that they weren't in the room and he wasn't being taken care of, that I knew for a fact they just came out of that room. Q And you said that -- you told me that you PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 95 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 knew if they were claiming that Mr. Carswell was not properly monitored, you knew that that was not true? A I knew that they had said they were doing Absolutely, I do know that. My question is: Did you tell vitals on him. Q Okay. Mr. Shaw and Mr. O'Brien that if they were contending that the patient was not properly monitored, that you knew that to be not true? you tell them that? A I told them that I knew they were doing I Did vitals, that they said they were doing vitals. never watched them do vitals, but I knew what they said. And I did tell them that they said they were doing vitals and that there was a machine in the room to do vitals. Q And that they were doing -- that he was being monitored, you knew -A Q A Yeah. -- by observations. From my observation, I knew that they were They in doing vitals, which would be monitoring. were monitoring the vitals, yes. Q By the way, that's not in your affidavit. Are you aware of that? A Yes, I am. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 96 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And now -- by the way, do you know how long Maria and Angela had been in Mr. Carswell's room before you saw them? A No. I -- I just saw them come out. I couldn't tell you how long they were in there. Q I mean, as far as you know, they could have been in that room for ten or fifteen minutes? A Q That's correct. Looking in on or caring for Mr. Carswell before they came out of the room? A Q A Q That is correct. Yes. Yes. And you would have no way of knowing that? No, no. But you can confirm that Mr. Carswell was looked in on by Nurse Delucia -- excuse me, by Angela and Maria around 5:00 o'clock in the morning? A Yes, I can confirm they were coming out of that room at that time. Q You can confirm that Maria was aware that Nurse Delucia was going on the break, correct? A Q Yes, yes. And you can confirm that Maria said that she would be responsible for the patient while Ms. Delucia was on the break, correct? A Yes, yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 97 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And that you can confirm -- well, that the intention was that Angela go on break and Maria would be responsible for the patient? A Q Yes. And by the way, none of those things are Are you aware of that? in your affidavit. A I thought that I put the smoking thing and that Maria said that she was going to be checking on him. I do believe -- is that the one -- when you say "affidavit," that's the paper I signed, correct? Q A That she would be responsible? She said that she would be checking vitals -- I mean, she said that she would be checking in on him, that is in my affidavit. Q Okay. Let me ask you about -- you said that she had a syringe in her hand at the nurses' station, correct? A Well, when she was walking down the hall, I saw it in her hand, yes. Q When she was walking down the hall, you saw a syringe in her hand? A Q A Q Yes, yes. Do you recall the size of that syringe? No, I -- I can't recall that. And do you know what the needle size -- PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 98 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recall the needle size? A Q It didn't have a needle on it. And there's a collar on the needle, a colored collar on the needle on top of the syringe. Do you recall what color that might have been? A There was no needle on it because I would have asked her about that. Q And of course it's clear that you did not see Maria give any pain medication to Mr. Carswell? A Q That is correct. And that you don't have any idea what was in the syringe, if anything? A Q That's correct. And you didn't see Maria give Mr. Carswell any medications, correct? A Q That's correct. And that -- you don't know -- you don't know whether or not there was anything in the syringe? A Q A Q That's correct, I don't know. Right? That's correct. Now, let me -- I want to ask you about when you came back to the room. A Okay. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 99 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Around 5:15, correct? Yes. You said that you felt for his pulse when you came into the room -- felt for his pulse at his neck; is that right? A Yes, but that was when Maria was with me. I called for help -Q A Q A Q First thing you did was call for help? Yes. Maria came running? Yes. Then you both went into the room. Maria checked pulse at the wrist, you checked pulse at the neck? A Q Yes. Did you otherwise participate in the code other than drawing the blood? A No. I didn't do anything with the code other than the blood. Q A blood. Q Okay. The drawing of the blood then was That is, you are not part of a code team? I'm only there to get blood if they need the only thing -- other than checking the pulse at the neck, the drawing of the blood was the only PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 100 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thing that you did; is that right? A Q That's correct. And then you drew the blood because Dr. Fite asked that the blood be drawn? A She said, "Let's get blood," so I just She didn't ask me directly. I just knew it was me. know when that's said, that's my job. Q Okay. You mentioned that the bed rails were down, the bottom bed rails were down? A Q Yeah, the bottom bed rails were down. And you weren't -- do you recall having a conversation with a young associate at my office quite a long time ago, before your deposition -yeah, before your deposition regarding this issue of the bed rails? And do you recall telling him that the upper bed rails were up and the lower bed rails were down? A I don't recall saying that, but I believe that is what it was -Q A down. Q The devices for moving the bed up and Okay. -- that the upper were up, the lower were down, the device for operating the television, that's all built into the upper bed rail? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 101 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes, yes. So the upper bed rails were up, it's the lower bed rails that were down? A Q Yes. Now, the blood that you drew -- you said you drew three tubes of blood, correct? A Q A Q A Q an artery? A Q That's correct. And that -- and that it was -- and was it Yes. From the top of Mr. Carswell's left hand? Yes. And this was venous blood? Absolutely. That is, it was from a vein and not from difficult to get blood from Mr. Carswell? A Q A Q No, it wasn't. Did you get it on the first try? Absolutely. And you -- apparently you drew this blood within the first five to seven minutes or so into the code; is that right? A Once Dr. Fite arrived. It was in the next couple of minutes that I drew it after she arrived. Q Okay. Maybe five to seven minutes after PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 102 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you went into the room and when the code was called, right? A Yeah, or even a little longer. I don't -- I don't recall how long it took everybody to get there, so -Q Maybe ten minutes after you first walked into the room -A Q A Q Yeah. -- you drew the blood? Yeah, yes. Now, in the first affidavit that you drew, (sic) it said that you felt his pulse at the wrist, and then you changed that on the second affidavit to show that you felt his pulse at the neck? A Yeah. It's at the neck. The main thing I wanted with that was I got the blood on the hand, and I wanted it to be noted on the left hand is where I took the blood. and not the pulse. Q Okay. Now -- and apparently you didn't So I was focused on that talk to anybody about these events at the hospital until you spoke to this attorney who met with you briefly before your deposition; am I right about that? A Yeah, that's correct. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 103 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q That is, you had a conversation with the young lawyer who came out to the hospital and met you briefly before you gave your deposition? A Q Yeah, that's correct. And his purpose in being there was to act as your lawyer during the deposition, correct? A Q That's correct. And he told you -- he gave you some general advice in how to handle yourself in the deposition? A Q Yes. I'm sure he told you, "Make sure you understand the question," correct? A Q Yes. And to -- and then to answer the question that's asked of you, correct? A Q Yes. And then not to volunteer information not required by the question? A Q That's correct. And of course, he would want you to be truthful in answering the question, but just answer the question that's asked of you, correct? A Q That's correct. And by the way, in the deposition, were PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 104 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you truthful in answering the questions that were asked of you in the deposition? A Q To the best of my knowledge, yes. That is, you didn't lie under oath or anything like that in the deposition, did you? A Q and -A Q Yes. -- gave truthful answers to the questions No, no. That is, you took your oath seriously Mr. Shaw asked you during the course of the deposition, correct? A Q Yes. And then did Mr. Shaw ask you any questions that you didn't tell the truth on during the course of the deposition? A No. There was just questions I would have For instance, I was asked, And the way it liked to elaborate on. "Did you see Angela in the hall?" was portrayed it was like it was during the code. Well, I said, "Yes," but what I wanted to say to further that was, "Yes, I saw her in the hall before I went to Mr. Carswell's room." Q A That you didn't -Yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 105 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q All right. That would have been a more complete answer to the question? A Q And I -- yes. Mr. Shaw didn't ask you any questions about what you observed -- what Maria Corral said about the pain medication? A Q No, no. All right. But all the questions that you were asked, you answered truthfully? A Q Yes, yes. And that's what Mr. Yankowsky, the young man that spoke to you briefly before the deposition, told you to do, right? A Q Yes. And Nurse Angela Delucia, she did come into the code room while the code was going on at some point in time, correct? A Q Yes. And she spoke to Dr. Fite apparently in the code room? A Q Yes. And then she told you outside of the room what Dr. Fite wanted -- what tests he wanted run on the blood that you had drawn? A Yes, she said that Dr. Fite wanted PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 106 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cardiacs. Q Those tests you said included CK, CK-MB and troponin, correct? A Q tubes? A Oh, no. Cardiac panel is just there. I That's correct. And would you have noted that on the just would know that's what needs to be done. Q Okay. And then you took the three tubes to the lab, correct? A Q Correct. And my understanding is that you -- all of the blood that you drew, the three tubes of blood that you drew, you personally spun that blood down, correct? A The two tubes that needed to be spun, yes, I spun them down myself. Q A Q Okay. Yes. And you put it on some kind of machine You did that yourself? that spins the blood? A Q Yeah, I put it into the centrifuge. When it spins, does it separate the plasma and the serum from the red cells? A Yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 107 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Then the red cells would be at the bottom of the tube and the plasma and serum would be at the top of the tube? A Q Yes. And you did that yourself on the -- is this spinning down of the blood, separating the red cells from the plasma and serum, is that necessary in order to do the CPK, troponin and CK-MB tests? A Q Yes, it is. So the blood on which those tests were going to be run was spun down by you personally -A Q right? A Q Yes. Now -- and it's your understanding, from Yes. -- after you went back to the lab; is that overhearing a conversation -- I'm sorry. It's your understanding that those tests were canceled, right? A Q A Which tests, the cardiacs? Yes. They weren't able to be canceled because they were already done when that order came through from upstairs, when somebody called. already -- they were already done. They were Once you result PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 108 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a test out, you can't just cancel it. are there. Q The results Well, then, the cancellation -- the only test that you were aware of that Dr. Fite wanted on the blood that you drew at the time of the code were these cardiac enzymes; is that correct? A Q That's correct. That's the only thing that Dr. Fite or Delucia -- Nurse Delucia said that Dr. Fite wanted on that blood, right? A Yeah, that Dr. Fite wanted. It was a different doctor that ordered other tests on the blood. Q Okay. That is, you were drawing blood -- your intention was to draw blood -- routine blood? A Q Yes, yes. And that was while you were there before the code, was to draw these routine blood tests? A Q That's correct. And the cancellation of the tests then was the cancellation of these routine blood tests? A Q Yes. And the reason it was canceled is because Mr. Carswell had passed away? A That's correct. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 109 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And so there wasn't -- you're not suggesting that the tests were canceled for any sort of evil purpose or anything like that, are you? A Q No, I'm not. And they were canceled -- the routine tests that were going to be done on the blood that you came to the unit to draw, they were canceled because Mr. Carswell passed away? A Q That is correct. And that doesn't come as any surprise to you, does it? A Q A Q No, it's normal. That's normal? That's normal. So the cancellation of those tests was an entirely normal event in the case where a patient passes away and tests have been ordered on him? A Q That's correct. So they did not cancel, though, the tests that Dr. -- that Dr. Fite wanted on the blood that you drew during the code? A They were not canceled? They They were not able to be canceled. were resulted out at that time. Q Okay. Now, after this blood was spun down, and after Ms. Burkhardt was finished with it, PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 110 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you personally -- she put it into -- she put all of this code blood into a biohazard bag; is that right? A Q Yes, yes. And she put it in the door of the refrigerator? A Q A Q Yes, she showed me. She did that in your presence? Absolutely, yes. So you saw her take all of the blood that you drew during the code -- she showed you where she was putting it in the door of the refrigerator? A Q Yes. And then on your next shift, the next time you came in, you removed that blood from that refrigerator -- it was in the door of the refrigerator, right? A Q That's correct. You removed that blood out of the door of the refrigerator and personally handed it to this courier? A Q That's correct. And the blood that you had drawn was in some sort of bio-bag; is that what you said? A Q Yes, it's in a biohazard bag. Biohazard bag. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 111 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So you were able to see that all of the blood that you had drawn from the code was in that biohazard bag when you handed it to the courier; is that right? A Yeah. I looked at my initials. I made sure my marks were the ones that were on there so that it was the correct blood. Q All right. So the correct blood and all of the blood that you drew at the time of the code you personally handed to the St. Joseph's Hospital courier, correct? A Q That's correct. And so he was -- the intention was he would take it back to St. Joseph's Hospital where the autopsy was being done, correct? A Q That's correct. Now, you could tell, when you took it out of the refrigerator, that it had not been opened or tampered with? You could see all the tubes of blood that you had drawn; is that right? A You can't tell if a Ziploc has been tampered with, but I could tell that it was the tubes that I did draw, yes. Q So you can tell this Court and this jury that all the blood that you drew at the time of the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 112 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 code went from St. Catherine's Hospital to St. Joseph's Hospital by way of courier because you personally handed it to the courier yourself? A yes. Q Now, there was blood drawn on Mr. Carswell I can say that it went with the courier, on earlier -- on earlier occasions in his hospitalization. For example, are you aware that blood was drawn on January 21? A I don't know the date, but if he came through the ER, I know he had blood drawn. Q records. from it. Okay. Let me show you that page from the Let me show you a page I It will be DX1-7. Christus St. Catherine's -- I'm sorry. 0073. have the wrong page. And this is a blood chemistry record from the laboratory that's in Mr. Carswell's chart, I will represent to you. And that indicates on there that there were occasions when blood was drawn, on January 21, January 20 and January 19. you see that? A Q Yes, yes. Okay. And apparently you -- according to Do your affidavit, you worked on January -- or your deposition, I can't remember which -- you worked on PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 113 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 January 21, correct? A Q I don't recall. But in any event, none of the blood drawn on January 21 or January 20 -- well, let me just say, you are aware that Demerol was given for the first time and the only time on January 22, the early-morning hours of January 22, right? A Q I wasn't aware of the painkiller. Assume with me that Demerol was given in the early-morning hours, pain medication -A Q Yes. -- in the early-morning hours of January 22. A Q Yes. And also that blood was drawn on But the only January 21, January 20 and January 19. Demerol that was given was -- assume with me for the purpose of my question, was a single dose on the morning of January 22, right? for my question. A Q Okay. I can assume with you. Just assume with me Now, any other blood left in the St. Catherine's laboratory, other than the blood that you drew -- let me start over. The only blood -- if what I'm saying PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 114 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is true, a single dose of Demerol was given in the early-morning hours of the 22nd, the only blood that would contain that Demerol would be the blood that you drew at the time of the code; is that right? A Q I would assume. If you assume with me that Demerol was only given on the 22nd? A I would assume. I mean, I don't know. I don't know anything about metabolizing as far as -because -Q A Q I'm not saying whether or not blood -Yeah. I'm saying the only blood that could possibly contain any Demerol in it was the blood that you drew at the time of the code? A Q If that was the only dose given, yes. So there wouldn't -- if Demerol wasn't given earlier than January 22, there wouldn't be any Demerol in blood drawn on January 21 or January 20 or January 19, right? A Q A long. Q Well, even if Demerol was given -Yeah. -- it wouldn't show in the test after that It -- you wouldn't be able to detect it. Okay. But tell me, if Demerol wasn't PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 115 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 given on those days -- and we do know for a certainty that -- there would be no Demerol in any of those blood specimens, correct? A Q Correct. And so the only blood -- the only blood specimen -- if you assume that I'm correct -A Q Uh-huh. -- that Demerol was given, one dose, on January 22, the only blood drawn after Demerol would have been given would have been the code blood? A Q Yes, that would be correct. If you assume I'm correct on a single dose of Demerol, all blood drawn before that would be irrelevant to whether or not there was Demerol in the blood? A Q That's correct. And so the only blood relevant to the issue of Demerol in this case was drawn by you and sent to St. Joseph's Hospital by courier; is that right? A Q That's correct. By the way, you would agree that only doctors can order that blood be drawn, right? A Yes, but they take verbal orders. We -- if the doctors -- the doctors usually don't tell us PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 116 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 directly. us. They tell the nurses and the nurses tell We never see doctors' orders. Q Yeah, but blood is only drawn on a doctor's order? A Q A Q Yeah, that's correct. Whether verbal or written? Yeah, that's correct. And only doctors can order tests on the blood that you draw? A Q Yes, that's correct. And nurses don't order the tests. It's the doctors that order the tests? A Q A That's correct. And only doctors can cancel tests, right? I don't know. I've had nurses cancel the tests, but -Q A Tell you that tests were canceled? Yeah, yeah. I don't know if it's the doctor that, you know, says that they don't want it or -- I mean, there's like -- like we have the ability to cancel a test. If we have a comprehensive metabolic panel and a basic metabolic panel ordered, we don't have to talk to anybody. We'll cancel the basic because it's in the comprehensive. So there's certain rules to the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 117 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 canceling of tests. Q And that's because the physician is getting the information? A Yeah, they are still getting the information they want, but -- you know, like one doctor may order one test, one may order the other. If this is in this, we're not going to do both. That would not be good for insurances. Q Okay. But as far as canceling a test that the doctor has ordered that's going to somehow provide information that the doctor wants, only the doctor can cancel that test? A Q It's only supposed to be the doctor, yes. And so the hospital or its nurses or staff don't order or cancel blood tests, right? A To the best of my knowledge, no. We have to -- we are at their mercy. If -- we don't know if We don't they are the ones that order it or not. see a written doctor's order ever. So if they ordered it themselves without a doctor, I wouldn't know that. that. Q be? A That's how it's supposed to be, yes. If a doctor ordered it, I wouldn't know And the same with canceling. You're talking about how it's supposed to PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 118 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q How it's supposed to be is that physicians order and cancel tests? A Q A Q Yes, that's how it's supposed to be. Hospitals don't order or cancel tests? They're not supposed to, no. Do you recall at the time of your deposition -- have you had a chance to read your deposition? A Vaguely. I mean, I just now read it when I got here today, but up until then, not -- not really. Q Okay. Did Mr. Shaw provide you with a copy of the deposition? A Actually, both your office and Mr. Shaw's office, yes. Q And do you recall reading in your deposition or did you say in your deposition -- you were asked the question whether or not you were involved in the canceling of any of these tests. you recall that? A Q I -- I -- no, I don't recall it. Well, let me show it. This is on page 52. Do I can put it up here. Page 52. Maybe you can't see it there. Can you -- this is line 9 to line 11. Do you have your deposition there PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 119 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with you? A Q A Q It's in the back room. Oh, you see it on the screen. Yeah, I can see it. Okay. You were asked this question: "Were you involved in canceling -- in the canceling of the tests in number 5, were you?" And let me show you, Exhibit No. 5 to your deposition actually is the cancellation page. Do you recall what page that was? No. 5 to your deposition. This is Exhibit It's the page that Mr. O'Brien showed you about the cancellation of tests. MR. O'BRIEN: Exhibit 271. MR. SWIFT: THE COURT: Q All right. Thank you. For the record, Plaintiffs' (By Mr. Swift) And Exhibit 271 is Exhibit 5 to your deposition, I will represent to you, where these various tests were canceled because the patient had expired. And you were asked in your deposition -- let me go back to page 52, line 9: "Question: You weren't involved? "No. "Now, you weren't involved in the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 120 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 canceling of these tests in number 5, were you? "Answer: "Question: In number 5? Oh. In Exhibit No. 5, you didn't get involved in the canceling of any of these tests?" And your answer was at that time? A Q A Q I don't remember. You don't remember, correct? Yes, yes. That was the deposition that you gave back in 2006, correct? A Q of -A Q Yes. Now -- by the way, back at the time that Correct. Much closer to the time of the incident you saw Angela and Maria in the hallway at the nurses' station, when they were speaking to you at the nurses' station, did you see anyone else in the hallway, an aide or anybody else like that? A There might have been other people there, but I was focused on the people talking to me. Q A Did you see Laurie Nigrelli in the hall? Like I said, I was focused on the people talking to me. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 121 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0000. Q Let me show you another document. This is page -- this is Exhibit -- Defense Exhibit 4-12. And I will represent to you that this is a page from the St. Joseph's Hospital records on Mr. Carswell after he was taken there for the autopsy. Are you familiar with this -- this type of document? A Q Yes, yes. And you will see on the document that the tests on the left-hand column, the CK, CK-MB and CK-MB index and the troponin. A Q Yes. That is those tests were in fact run Do you see that? apparently, according to this record, at St. Joseph's Hospital, correct? A Q Yes, but it wasn't the blood that I drew. Well, isn't -- aren't these the same tests that were run on -- same tests that Dr. Fite ordered? A They are. But this blood was collected at It was collected at midnight. Q A Collected on January 22, 2004, correct? At midnight. It has the time that it was collected. Q Okay. Just says 0000, correct? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 122 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. But if it's blood drawn on January 22, 2004 -- of course that 0000 Mr. Carswell -A Q A That's the time. Pardon me? The 0000 is the time. And when we put it in, we have to look at the tube and put the correct time that it was drawn in. Q A All right. So that wouldn't have been the blood -- it's not the correct time. Q wrong? A I would say that's not -- because if we And Not the correct -- that is the time may be are receiving blood, we put what's on the tube. that wouldn't have been on the tube that I -Q Okay. But in any event, it is blood drawn the same date that you drew the blood, correct? A Q That would be correct. And it does have the same three tests that Dr. Fite ordered on the blood, correct? A Q A Q Yes, that's correct. And it does have results of those tests? Yes, yes. Okay. Have you ever met Nurse Beerman? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 123 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know. A Q I would have to know her first name. That is -- it's an expert witness testifying in our case, someone from Mr. Shaw's office, a nurse. A I may have, but I don't recall. I don't Q A Q Jenny Beerman. I would have to see her. I don't know. Have you met anyone else from Mr. Shaw's office other than Mr. O'Brien and Mr. Shaw? A There were other people at the deposition, but I don't remember them. Q How about since? I'm talking about the deposition -A Q No, not since. No one else from his office other than Mr. O'Brien and Mr. Shaw; is that correct? A That's correct. Other than when I went to the office this morning and people were there, but we didn't talk about this. Q Did you go to Mr. Shaw's office this morning before you came here? A Q Yes. And did someone come and pick you up and bring you to Mr. Shaw's office? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 124 Rhonda Edwards - August 13, 2010 Cross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes -- I mean, no, my husband dropped me off at his office and then we came here. Q Then someone from Mr. Shaw's office brought you from his office to here; is that right? A Yes, that's correct. MR. SWIFT: Your Honor, I believe that's all the questions I have. THE COURT: MR. O'BRIEN: THE COURT: Thank you. A few short ones. Okay. REDIRECT EXAMINATION BY MR. O'BRIEN: Q First of all, that exhibit that he just put up, was that the code blood that you drew on January 22? MR. SWIFT: This witness would not know And she's just that other than the time. explained that. THE COURT: you, Counsel. Q We'll find out, then. Thank (By Mr. O'Brien) Was that exhibit that had the test run, was that test run on the code blood that you drew from Mr. Carswell? A Q No, that's much earlier. Second of all, the young lawyer from PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 125 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fulbright & Jaworski that talked to you before your deposition, did you know that he was a partner at the same firm with Mr. Swift? A Q No, I did not. Did that lawyer know what you knew, that in fact pain medication was given to Jerry Carswell at 5:00 o'clock in the morning, as opposed to what they have been saying, it being given at 3:30? Did he know that based on his conversation with you in 2006? A Q He knew what I had said, yes. Did you learn, just from the visit from Mr. Shaw, that there is no notation in these medical records of the drug being given around 5:00 o'clock in the morning? Did you know that until Mr. Shaw brought you the medical chart? A Q I did not know that. Did you ask to see the medical chart before your deposition and ask Mr. Yankowsky, partner at Fulbright & Jaworski defending St. Catherine's Hospital and St. Joseph's Hospital, that you wanted to see the medical records before you gave your deposition? A Q I don't recall asking for it. Did you not in fact say in your affidavit PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 126 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 executed on July 31, 2010, "Mr. Shaw, he had a copy of the chart. I saw in the chart that there was no medication shown as being administered at 5:00 in the morning. was incorrect. I told him," that's Mr. Shaw, "that I also told him," Mr. Shaw, "step by step what I remember"? MR. SWIFT: He's leading -- first of all, he's the leading the witness and reading from a document not in evidence. THE COURT: MR. O'BRIEN: Rephrase. I will ask for admission of the affidavit, Exhibit 272. MR. SWIFT: Your Honor, he's reading from It's a a document that's not in evidence. hearsay document. THE COURT: MR. O'BRIEN: MR. SWIFT: basis. He should not be -He's asking for admission. I'm asking for -And we object to it on that It's a document prepared by the It's lawyer's office for the witness to sign. not an appropriate document to be offered into evidence. THE COURT: MR. SWIFT: MR. O'BRIEN: Okay. We object to it as hearsay. May I respond? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 127 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SWIFT: THE COURT: Your Honor, may we approach? Please approach. Y'all can stand up, if you want. (At bench, on record.) MR. SWIFT: evidence. Affidavits don't come into They're It's a hearsay document. not offered into evidence. Number one, first of all, I do resent a little bit waving around a document clearly not admissible and offering it. Because in the in limine -- in their in limine, they specifically asked that those documents be discussed with the Court before being offered into evidence. the way that he's doing this. But it's so plainly a hearsay document. We can run out and get affidavits from all of our witnesses and offer them into evidence. Affidavits don't come into evidence. So I So I do object to object to any affidavit, it's hearsay, coming into -MR. O'BRIEN: He's read specifically from Just it and examined her on her affidavit. repeated -- those questions he asked are just directly right out of the -MR. SWIFT: I still didn't read from the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 128 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affidavit. MR. O'BRIEN: MR. SWIFT: come in. Sure did. The document itself does not They talked It's a hearsay document. about the affidavit. the affidavit. I questioned her about But the affidavit is a hearsay document prepared in their office for the witness to sign. Your Honor, all witnesses can prepare affidavits and offer them into evidence. MR. HUANG: THE COURT: Mr. Swift is entitled -You are the one who's trying to make the record so make sure that she hears you. MR. HUANG: Mr. Swift was using the affidavit as impeachment of this witness -THE COURT: you. MR. HUANG: I'm sorry, Mr. Swift was using I'm sorry, I still didn't hear the affidavit with Ms. Edwards as impeachment. That was a proper use of the affidavit. Whereas here they are trying to put the affidavit into evidence to support -MR. McCABE: THE COURT: May I respond? Yes. Careful with it. Don't PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 129 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 make too much noise because it goes to her ear. But you can speak. MR. MCCABE: Now, they have just said that they are trying to impeach her -THE COURT: Hold on. Y'all trying to talk to the bailiff; is that what it is? If anybody needs to go, if they can do it quickly, let's get going. MR. McCABE: They're taking the position that they're trying to impeach her on her affidavit. What they are really trying to do is show, through their questioning, that what the witness has said in her affidavit is a recent fabrication; therefore, a prior consistent statement is admissible to rebut a charge of recent fabrication. And that's why the affidavit in its entirety comes in. MR. RICHARDSON: May I respond? THE COURT: respond. MR. RICHARDSON: If -- I don't think what Yes, of course, you can If you are saying -- he is saying is true, but if the affidavit -if we are saying -- we're trying to say the affidavit itself is a recent fabrication, the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 130 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affidavit itself can't also be a prior consistent statement. THE COURT: MR. McCABE: THE COURT: Okay. That's just not the rule. I'm going to sustain it. We need to wait for one Let's get going, guys. juror. Okay. Are we anticipating any other Counsel, are we issues about this witness? anticipating any other issues real quick that you need to object to? we can finish with her. MR. SWIFT: THE COURT: hold you to it. I can't think of any. Okay. Thank you. Going to Let's do it now so that No, I'm kidding. (End of bench conference.) Q (By Mr. O'Brien) Ms. Edwards, I want to demonstrate for you a portion of the medical records, the nurses' progress notes and so forth, for Mr. Carswell that show when, according to the hospital, medication was given to Jerry Carswell. MR. O'BRIEN: up? Can you pull that document Can you highlight the -- yeah, right There you go. All right. All before the code. Technology. right. We will get it. Be patient. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 131 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q (By Mr. O'Brien) Now, can you read that? Some of it. Okay. There's this entry at 2:00 o'clock. Then you see -- you see that entry at 3:30? A Q Yes. Now, this is out of the nurses' notes with It says, "PT," I assume Continues" -- I'm regard to Mr. Carswell. that's patient, "remains awake. not sure -- can you read that next word? A pain." Q I will represent to you, based on the Not the next one. Then I see "severe back testimony in the case, "CO" means complaints of. Then the next word, "severe pain." 9. "M.D.," M.D./doctor, "called. There's a number Orders received." "PT Looks like it might be a period there. medicated." A Q Do you see that? Uh-huh. And then there's initials there, it looks Okay. "Patient medicated by," Do you see that? like, in writing. then go to the next line, "RN." A Q Yes. So according to this medical record for Jerry Carswell, he was medicated for pain by the RN at 3:30. Isn't that what it says? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 132 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q correct? A Q Yes. Now, the next entry is at 4:00 o'clock, Yes. "Patient sleeping" -- looks like a -- yeah, I guess -- Carl is helping me here -- "with no distress." I think that's what the deposition testimony has been, that that's what that entry meant. Again, it's got initials, doesn't it? Do you recognize any of the initials over to the right? A Q A Q One looks like an "A" something. An "A"? Another one looks like an "M." Okay. And then we see at 5:15, "Patient found by lab person" -Is that you? A Q Yes. -- "in distress. Code called." Then it says, "See code sheet." All right. Do you see anywhere in this medical record, anywhere, that pain medication was given by the RN, Maria, at 5:00 o'clock or anytime around 5:00 o'clock in the morning? A Q No, I don't see that in there. If Maria gave that pain medication and you PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 133 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 saw that syringe in her hand sometime around 5:00 a.m., it's not in here, is it? A Q If she gave it, it's not in there. You did not know -- until Mr. Shaw came to see you and asked you about what happened that day, you did not know, did you, that the medical records were silent about the drug being given at 5:00 o'clock in the morning? That was the first time you learned that; isn't that true? A Q That's correct. Although you learned for the first time that the medical records didn't reflect that medication, you also learned for the first time that we did not know about Nurse Corral giving medication at 5:00 o'clock? MR. SWIFT: witness. THE COURT: Counsel. MR. O'BRIEN: THE COURT: Q Yes. Thank you. If you could rephrase, Objection. Leading the (By Mr. O'Brien) Was Mr. Shaw surprised when he heard what you had to say about your conversation with Ms. Corral? MR. SWIFT: Object -- PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 134 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q THE COURT: Let him ask the question before you object to it, please. MR. SWIFT: THE COURT: Okay. What was the question again? (By Mr. O'Brien) Did Mr. Shaw have a look of surprise on his face when he learned for the first time just weeks ago that in fact Maria Corral was in the room with Angela Delucia and had given pain medication at 5:00 in the morning? A Q He was surprised by what I said, yes. And the only reason we don't know -- well, let me rephrase it so Mr. Swift doesn't have to get up. What is the reason why you did not tell Mr. Shaw, in response to his questions to you at your deposition on March 7, 2006, what you had already told the lawyers for Fulbright & Jaworski? What was the reason why that didn't come out in your deposition, as far as you are concerned? A I was told not to volunteer any information, just answer yes, no, don't recall, and just as little as possible. Q A Q Who told you that? The lawyer that was there with me. Did you know he was a lawyer from PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 135 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fulbright & Jaworski? A Q I didn't know. Did you know he was a lawyer for the hospital in this case? A Q I thought that, yeah. Are you telling the jury the truth about everything that you know that happened that morning? A Q Yes, I am. And with regard to the syringe -- because you made a comment, no one has followed up on it. This syringe that was in Maria's hand that you saw when you were talking in the hall and at the nurses' station, did it have a needle on it? A Q No, it did not. And you had a smile on your face and it struck me -- there must be something -- why that's important, and I didn't want to pass on that. Why is it important that there wasn't a needle on the syringe when you saw it? significance of that? A She would have had to get rid of it. She What's the couldn't come out with a needle on it. She would have had to put it in the sharps container. Q Do nurses walk around with a used needle on a syringe? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 136 Rhonda Edwards - August 13, 2010 Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Not that I have ever seen. It goes in a biohazard bag, doesn't it? That's correct. Well, no, it goes into a sharps container. needle. Q A bag would never stop the Fair enough. It goes into some kind of container for waste medical products, correct? A Q That's correct. Okay. Is there anything else you wanted to tell this jury that you know about what happened on January 22, 2004 that we haven't talked about already? A I believe everything was covered. MR. O'BRIEN: I thank you for coming here and telling us the truth. I have no further questions. THE COURT: MR. SWIFT: Thank you, Counsel. Just a couple of follow-ups. RECROSS-EXAMINATION BY MR. SWIFT: Q Your understanding as to why there wasn't a needle on the syringe as you were looking at it is that it would have been thrown in the sharps container, correct? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 137 Rhonda Edwards - August 13, 2010 Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this. A Yeah, and it's not -- I mean, depending on what the medication was, you don't always use a needle to administer medication. It's not unusual And that to see somebody with a saline flush. doesn't have a needle. It just screws onto the lock and they flush out the IV. Q So it wouldn't be common then to see someone in the hallway holding a syringe with saline flush in it with no needle on it? A Q That's not uncommon at all, no. Okay. And let me make sure I'm clear on That you are not here today to tell this jury that Maria gave Mr. Carswell pain medication at 5:00 a.m. because you don't know -you did not see her give pain medication? A I am -- that is correct. I am just here to simply say what I saw. Q And you did not see her give pain medication; is that right? A Q That is correct. You are not here telling this jury that you are here to tell them that she gave pain medication at 5:00 o'clock because you didn't see it? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 138 Rhonda Edwards - August 13, 2010 Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q That is correct. All you can say is what you recall from 2004 what she said to you at the nurses' station? A Q That's correct. And you are here to say, though, that, in your view, Mr. Carswell was properly monitored, right? A Q They were watching him, yes. Yes. And that -- you also are here to say that Maria knew that Angela was going on break, right? A Q Yes, she did. And that she knew -- and that she knew that she, Maria, would be responsible for Mr. Carswell while she was on the break? A Q Yes. And also, you're not telling this jury that you knew what had been in the syringe or what was in the syringe that you saw, right? A Q That is correct. And you don't even know whether there was anything in the syringe, whether it was full or empty? A Q That is correct. And -- and you are here to say, though, PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 139 Rhonda Edwards - August 13, 2010 Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that all of the blood that you drew at the time of the code went to St. Joseph's Hospital, correct? A yes. Q And the only indication that the test At my next shift, it went to the hospital, results that I have here is not the blood you drew is because there is 0000 on it, correct, as to a time? A Q A Q That is correct. It does have January 22? That is correct. And you are aware, of course, that the only blood drawn on January 22 on Mr. Carswell was the blood drawn at the time of the code, correct? A That I don't know one way or another. There could have been -- there's many times the ER draws blood or somebody will draw blood and send it down. And because there's no tests in the system, We spin it down and set it we set the blood aside. aside in the rack. Q But all of the blood drawn on Mr. Carswell -- I mean, the only blood recorded as drawn on Mr. Carswell -- let me back up. The only blood drawn on January 22, according to the medication sheet that I showed PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 140 Rhonda Edwards - August 13, 2010 Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you -- I'm not asking this right. That is there was -- all of the other blood recorded on Mr. Carswell other than the blood that you drew at the time of the code was drawn before January 22? A That is part of the record that you showed me, but we also have a log in the lab in which any specimens that are brought in are logged in there. And if it's logged in there, I couldn't answer that question. Q Okay. But as far as the medical records are concerned, the only blood drawn on January 22 -or all of the blood drawn on Mr. Carswell other than what you drew at the time of the code was drawn before January 22? A Q According to his chart, yes. Okay. So the results in the St. Joseph's records that I showed you was blood drawn on January 22, correct? A Q That is correct. And now, I just want to make sure this is After you spoke to me on the phone for clear also. 15 or 20 minutes on January 29 -A Q Yes. -- you did meet -- and told me that you PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 141 Rhonda Edwards - August 13, 2010 Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 didn't want to meet with me unless Mr. Shaw was present, you did meet with Mr. Shaw by himself twice after that; is that right? A Q A My husband was there, but, yes. You and your husband met with Mr. Shaw? Yes. MR. SWIFT: MR. O'BRIEN: That's all I have, Your Honor. Very brief follow-up. FURTHER REDIRECT EXAMINATION BY MR. O'BRIEN: Q Maria, RN, told you around 5:00 o'clock in the morning that she had just given Jerry Carswell pain medication; that's true, isn't it? A Q gone. That is correct. Angela, LVN, is taking a smoke break, is She's obviously not monitoring or watching over Mr. Carswell after the pain medication is given, is she? MR. SWIFT: witness. Your Honor, he's leading the We object to leading. Sustained. THE COURT: Q (By Mr. O'Brien) Did Angela leave to go on a smoke break, as far as you're concerned and based on what she told you? A Yes. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 142 Rhonda Edwards - August 13, 2010 Further Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q So do you know whether Angela was in the room monitoring Mr. Carswell after he got pain medication? A If it was given at 5:00, she was on a smoke break. Q She's gone. All right. The RN who gave the medication, according to her statement to you, did you see her go back into the room to monitor Mr. Carswell when you went down the hall to get blood from another patient? A Q No, I did not. You did not. So you do not know between 5:00 and 5:15, when the code was called, whether any nurse ever went in to watch over or monitor Mr. Carswell to see what reaction he had to the drug that they had just given him; isn't that true? MR. SWIFT: Honor. Object. If you could please rephrase. I'll rephrase. Leading the witness, Your THE COURT: MR. O'BRIEN: Q (By Mr. O'Brien) Mr. Swift asked you, well, you are here to say that you knew that they were monitoring and watching the patient. Do you PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 143 Rhonda Edwards - August 13, 2010 Further Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know whether or not Maria or Angela were monitoring the patient between 5:00 and 5:15? A Q No, I do not. You don't know whether they took his vital signs, correct? A Q did? MR. SWIFT: object. THE COURT: Q anything? A I do not. MR. O'BRIEN: THE COURT: MR. SWIFT: I will pass the witness. Thank you. Just a couple of things. Sustained. Leading the witness. We That's correct. You don't know what, if anything, they (By Mr. O'Brien) Do you know if they did FURTHER RECROSS-EXAMINATION BY MR. SWIFT: Q First of all, you don't have any idea how long they were in the room before they came out of the room, right? A Q That's correct. They could have been in there for 15 minutes, 20 minutes, 30 minutes before they came out PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 144 Rhonda Edwards - August 13, 2010 Further Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the room, right? A Q That's correct. And you wouldn't know one way or the other how long they had been in there watching him, even if they had given him pain medication in the last 30 minutes or so, right? A Q That's correct. But you did tell me on the telephone that, in your opinion, this patient was properly monitored, right? A Yeah. They were in the room. I watched them come out. Q By the way, do you know what tests are, the MB-CK [sic] and the -A Q A Q A Q The CK-MB, you mean? Pardon me? CK-MB? CK-MB. Yeah, it's not MB-CK, it's CK-MB. You know what those tests are, CK-MB, troponin -A believe. Q A Pardon me? "CK" I believe stands for creatinine "CK" stands for creatinine [sic] kinase, I PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 145 Rhonda Edwards - August 13, 2010 Further Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 kinase. Q A So you think the "CK" is creatinine? Creatinine kinase. It's different than creatinine. Q A Q A Q A What is it -- do you know -I honestly don't know. How about CK-MB? I honestly don't know. How about troponin? Troponin, I do know what that's for. That's to test for -- for the heart specifically. Your troponin will only go up if you have had a heart attack. MR. SWIFT: THE COURT: That's all I have, Your Honor. Thank you. FURTHER REDIRECT EXAMINATION MR. O'BRIEN: Plaintiffs' Exhibit 274, can you pull that back up. Q (By Mr. O'Brien) Do you see any entries in there that vital signs were taken from Mr. Carswell, anywhere in that document? A Q No, I do not. Do you see anywhere in that document that says that they are in the room for a half hour, ten minutes, five minutes or one minute? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 146 Rhonda Edwards - August 13, 2010 Further Redirect Examination by Mr. O'Brien 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q No, I don't. In fact, the evidence that you have now brought to this jury hasn't been in this case until your affidavit came to light? MR. SWIFT: Honor. Leading the witness, Your Object to leading. Please rephrase. THE COURT: Q A (By Mr. O'Brien) Did you know that? No, I didn't. MR. O'BRIEN: MR. SWIFT: THE COURT: Pass the witness. One final question, I promise. You'd better not promise. FURTHER RECROSS-EXAMINATION Q (By Mr. Swift) I'm not going to let him get the last word. You remember that Nurse Corral said, standing at the nurses' station, when she knew that -A Q A Q Which nurse? Maria. Maria. Okay. -- when Maria said Nurse Delucia was going on break and she would be responsible for the patient, she said that she would be going in to take vital signs, right? PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 147 Rhonda Edwards - August 13, 2010 Further Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Yes, she did, yes. She said her plan was to take vital signs? Yes, you're correct. MR. SWIFT: MR. O'BRIEN: All right. That's all I have. Well, I'm not going to beat a dead horse. Because we just looked at it and we don't see it there. MR. SWIFT: Your Honor, we object because I think he's beating a dead horse. MR. O'BRIEN: I like horses. So you have been very good to come here in your condition and to tell us what you know. more questions of you. Thank you very much. THE WITNESS: THE COURT: MR. SWIFT: THE COURT: Thank you. Is the witness released? MR. O'BRIEN: THE COURT: Can the witness be excused? Yes. Okay. Thank you, Counsel. No further questions. Thank you. You may step down. So I have no Any problem, Counsel? MR. SARTWELLE: THE COURT: No, Your Honor. Yes, the witness can be PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 148 Rhonda Edwards - August 13, 2010 Further Recross-Examination by Mr. Swift 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 excused. Thank you. (Witness steps down.) THE COURT: It won't be very long, guys. (Discussion off the record.) THE COURT: guys. See you Tuesday. Hold on, Let me remind you not to discuss the case among yourselves or anyone else, not to do any research. And if you happen to see any of the people here in a grocery store or on the way out, again, please ignore them. Thank you. Good enough? MR. SARTWELLE: (Jurors exit.) MR. SARTWELLE: nervous with -(Discussion off the record.) THE COURT: MR. SHAW: Anything on the record? Your Honor, on the record, we I'm getting more and more Yes. Okay? are getting ready to ask the defendants to give us the nurse witness Angela Delucia. And one of the issues that's still pending before the Court is getting the remaining files that the Court has in camera. And as the Court recalls, PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 149 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we have at least three bases to get those records. And the other issue now is, I have had my nurse expert Jenny Beerman come in town. And she has heard Rhonda Edwards testify today. She's also prepared to give evidence that there is a pattern of unsafe conduct on behalf of Nurse Delucia, medication administration errors or issues on behalf of Ms. Delucia and reprimands for the years 2000 and 2006. Also, the other issue that is on the privilege log is that there are drafts of due process corrective counseling. And drafts of counseling is not something that would be normal in nurse practice. Normally when someone has an issue with an employee, they write a counseling report. and then put it in the file. So we believe that they are relevant to our negligent retention claim. We believe They don't draft it there's a sufficient pattern under Rule 406 to substantiate our negligent retention claim. And we also believe that -- I can show you or demonstrate to you that the documents that they claim to be privileged and not have been turned PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 150 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 over before have in fact actually been turned over previously. And I have four instances of that that I can share with the Court, as the Court requested last time we had that conversation. THE COURT: Those are the same four that you already filed, right? MR. SHAW: Well, yeah, they are contained And I just made within the four that I filed. clear examples. Because what Mr. Richardson So I said is, "No, that can't be possible." went and just found four examples of corrective counseling reports that I believe have already been turned over to us. THE COURT: Okay. I thought we addressed There are drafts -- MR. RICHARDSON: this earlier, Your Honor. it's identified that there are different documents in the privilege log than is -- that have been produced. And I also stated that -- I believe I said this in a letter to Carl as well -- that if there were documents that were produced, we were not asking for a snap back of those documents. The affidavit speaks for itself. The PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 151 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents that were submitted in camera that have been established as privileged, the Court made the correct ruling on those documents. are not asking for these documents back. I don't think now -- I think we are just still talking about the in camera documents rather than -- the admissibility I think of this personnel file that has been produced is a whole different issue. But there's no new evidence from the last time we argued on the privileged nature of the documents we submitted in camera. still privileged. They are We And whether different versions, nondrafts, finalized versions that went into her personnel file -- if different versions, finalized versions, other versions of counselings that were produced because they did go into her personnel file were produced has no effect on the privileged nature of documents contained in this separate file and for which we provided the Court an affidavit establishing the privileged nature of that separate file. THE COURT: Okay. Frankly, we've already MR. RICHARDSON: discussed this at previous -- PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 152 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We have. I had not made a ruling because I don't think you all were expecting me to make a ruling until you were ready to call her in now. I reviewed all -- you know, all the information y'all gave me regarding that. I did notice that on some of -- on the four documents specifically that you filed, one of them specifically said, "Forward to personnel records." And I think that I might have made a mistake on my part to consider that a privileged document and it should be part of the personnel record. Now, the other three, I would still consider them privileged and I will not change my ruling on that. MR. SHAW: Your Honor, the other thing I And would ask is for the Court to take a look at the documents that I have and the areas where I believe that these documents have been already produced to her personnel file. And under Rule 406, custom, habit and practice of being involved in getting reprimands, in order for me to make my negligent retention claim, I would PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 153 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like for the Court to take a look at these documents that I already have and compare them to the documents in camera, because I think that those would be pivotal documents, important documents, in making our claim of negligent retention since we have a course of conduct from 2002 to 2006, and specifically before 2004. THE COURT: this before. right now. Now, I think I heard all of And let me tell you my position I will read -- anything you want me I think the Whether to read, I will read, I promise. nurse privilege is pretty absolute. they forward it to the personnel file or not is not what's going to make me rule different. If in the document it says, "Forward to personnel file," I will consider that a nonprivileged document and I will let -- you know. Now, accordingly as an unprivileged document, and we will talk about admissibility later on, but certainly in terms of, you know, it being privileged or not, I will consider that not privileged. Now, anything that ended up in the PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 154 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 personnel file, but that smells and tastes like a privileged document, I will keep it as a privileged document. MR. O'BRIEN: THE COURT: Understood. Again, I will read it. I may change my mind after I read everything you have already given me, but if it's not different than what you've already given me -MR. SHAW: THE COURT: be my ruling. MR. SHAW: So I understand that we'll be I'm happy to make --- it's pretty much going to getting one additional document that was supposed to be forwarded to the personnel file that the Court is holding in camera? THE COURT: Yes, that you filed. If he filed it, Your So MR. RICHARDSON: Honor, I think we have already produced it. I think that's a moot point perhaps on that particular document. But I don't know. I haven't looked at the briefing obviously in a while so -THE COURT: You were saying that even if you had produced it, that it was still privileged. So I'm saying, no, that one in PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 155 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 particular is not. MR. RICHARDSON: MR. SHAW: Okay. I guess what I'm trying to ascertain is, is there a document that the Court has in back that it says "forward to personnel file" that you are holding onto as privileged that I have not yet seen? THE COURT: let you know. I will check again. I will Let me make it clear -- I know If it says that you have a concern there. "forward to" I will consider that not privileged and I will order you all to hand it over. MR. RICHARDSON: I understand. And I think the clarification Mr. Shaw is looking for, in my understanding, is that the document that you are talking about now is actually a document that he has already filed. THE COURT: That you already filed, yes. So he will have seen it, MR. RICHARDSON: he has seen it. THE COURT: I need to check and make sure There that there's no other such document. might be, actually. MR. RICHARDSON: There might be. Okay. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 156 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have. MR. SHAW: THE COURT: So I will be happy to make a -Just to put you on notice that that -- yeah, that's a possibility there. Y'all know what you gave me, so y'all know whether it's there or not. MR. SWIFT: Your Honor, will you let us know your ruling before you actually produce it if there is -THE COURT: Of course. Of course. I'm not going to give it to them. order you to do it. MR. SHAW: I'm going to How about that? Your Honor, I will be happy to What I make a copy of this for Mr. Richardson. did is that -- these are a list of all of the issues that Ms. Delucia has had put in chronological order versus the way the privilege log was put together. So where I have a flag, that's the date that they considered it to be privileged and the document they consider to be privileged. And this is the document that I already And so I have marked there where it's the same as, so each yellow tag goes together and makes a combination. THE COURT: Okay. PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 157 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. MR. SHAW: So that would show the Court why I believe that the document they are holding onto was part of what was put in her personnel file. THE COURT: Okay. I will look at all of MR. SHAW: Mr. Richardson. Court. THE COURT: I will make a copy of this for I will bring it back to the Good. Thank you. And are you going to do it before Monday? MR. SHAW: THE COURT: MR. SHAW: Yes, Your Honor. Today? I'm going to make a copy of it right now and bring it to the Court and Mr. Richardson. Also, I have asked for an original copy of the medical records so we can inspect it. I need to find out, is the original here today? MR. SWIFT: Yes, I think it is. Yes, it is. MR. RICHARDSON: MR. SHAW: THE COURT: May we inspect it now? Sure. That's fine. Let me say, MR. RICHARDSON: it's here with someone from St. Catherine's PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 158 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that won't even let us have it without her present. So if we are going to do it, I'd just ask that we do it here while she is here. THE COURT: MR. SHAW: do that. THE COURT: Anything else? I will be here Okay. That's fine. We are happy to for a while, so if you need me -- I'm not going to say goodbye yet just in case. If there's any other issues we can discuss without the jury, this might be a good time to do it so that we can take some time. let me know. MR. O'BRIEN: I have currently -- I have So just no issue currently that I'm aware of. THE COURT: MR. SWIFT: point. THE COURT: I will be here anyway. Any other issues? Not that I'm aware of at this (Court adjourned.) PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275 159 Jury Trial August 13, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 STATE OF TEXAS COUNTY OF HARRIS I, Peggy Hershelman, Official Court Reporter in and for the 165th District Court of Harris, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties. I further certify that the total cost for the preparation of this Reporter's Record is $ and was paid by Fulbright & Jaworski. /s/Peggy Hershelman 21 22 23 24 25 Peggy Hershelman, CSR Texas CSR 2370 165th Official Court Reporter 201 Caroline, 12th Floor Houston, Texas 77002 Telephone: 713-368-6275 Expiration: 12/31/2011 PEGGY HERSHELMAN, CSR, RPR 165TH OFFICIAL REPORTER 713-368-6275