been the sole criteria for certifying as an expert before the courts of the state of Tennessee

THE WITNESS: I decided against it.

THE COURT: And why was that?

THE WITNESS: Because I had inaccurate records which led me to that diagnosis, and once I got adequate and appropriate information, then I did not feel that I need to entertain the possibility of Munchausen's by Proxy.

DIRECT EXAMINATION RESUMED

QUESTIONS BY MR. FRIEDMAN:

Q. Tell the Court about the inaccurate records that you're referring to that led you to initially consider whether this woman had this syndrome?

A. I received a child who had severe diarrhea. In the previous hospital the work-up which was done had excluded infectious causes. In the previous hospital an endoscopy done also showed apparently that the intestinal lining was intact. Under those circumstances, it was very difficult for me to explain why the child is having ongoing, severe diarrhea. So the possibilities at that stage were does he have any hormonal problems, any endocrine problems leading to diarrhea or is Munchausen's by Proxy an issue. We did look at endocrine problems and did not find any. We did look at the stool for laxatives and did not find any. At that stage, I had to reconsider the fact that the information provided to us by the previous hospital may not be accurate. So I had to re-perform the endoscopy.

Q. Explain what endoscopy is.

A. Endoscopy is when you take a flexible lighted tube and go down the child's mouth all through the gastrostomy site and go into the small intestine and take biopsies, take a look and take biopsies.

Q. Explain what the medical records that you had originally been provided on this child said in regard to the findings of a previous -- or the previous endoscopy.

A. They said that the esophagus, which is the food tube, the stomach and the first part of the duodenum were normal.

MS. LUSTER: Your Honor, if I can just

clarify which medical records he's referring to.

MR. FRIEDMAN: I was about to do that.

BY MR. FRIEDMAN:

Q. What records were you -- did you refer to all the records that Dr. Polk said he referred to? Did you look through those, the medical records?

A. Most of them.

Q. I didn't hear.

A. Most of them.

Q. Which record in particular --

A. From LeBonheur.

Q. What was it that LeBonheur said?

A. They said that the biopsies of the esophagus, which is the food tube, the stomach and the duodenum were normal.

Q. What did you find, sir?

A. What I found was that beyond the second part of duodenum there was complete denudation of the lining of the intestine.

Q. What does that mean?

A. That means that he had no intestinal lining.

Q. And what effect does that have on the results of the tests you had done previous to that?

A. That gave me a reason why the child was having diarrhea so severe and that fit in nicely with the clinical impression and the other investigations, so at that stage I felt Munchausen's by Proxy was not something to be entertained.

Q. You have reviewed each and every record of this youngster since he was taken at 6:00 p.m. on September the 6th, 1996, by Dr. Polk and by the Department of Human Services. Is that correct?

A. I have reviewed records. I don't know if they are the complete records.

Q. Do they presume -- do they appear to be records from the date of September 6th, 1996, through, I believe, yesterday?

A. That is correct.

Q. Today. Excuse me, through today. I'm sorry. I'll pass you forward those paper documents if I may. Please, sir, and I want you --

MR. FRIEDMAN: May I approach, Your

Honor? May I approach the witness?

THE COURT: Certainly.

MR. FRIEDMAN: Thank you.

BY MR. FRIEDMAN:

Q. I want you to tell the Court, if you will, based upon your review of these records, if the child's medical condition has improved or worsened since Dr. Polk and DHS took this child from his mother on September 6th?

MS. LUSTER: Objection, Your Honor.. Unless he's reviewed all the Vanderbilt records prior to that, he's got no way of knowing what the condition was prior to September 6th, I don't think he has a basis to make that opinion.

THE COURT: I sustain that unless you can show that he has seen the other records.

MR. FRIEDMAN: Your Honor please, I think I asked him on the limited period of time from the time that they took him has his condition improved or gotten worse.

THE COURT: I think the objection is there would be no way to know that if he had not reviewed the records prior to that time.

BY MR. FRIEDMAN:

Q. Have you reviewed the previous records in regard to this child?

A. I have had conversations with the treating physician, so I'm aware of what his clinical status was, but I have not reviewed the records.

Q. They consulted with you in regard to this child prior to taking the child away from the mother. Is that true?

A. I don't know if consulted is the right word. Yes, I have had several conversations.

Q. With whom?

A. With Dr. Barnard and Dr. Crissinger.

THE COURT: Dr. who?

THE WITNESS: Dr. Crissinger and Dr. Hummell and someone else from immunology.

BY MR. FRIEDMAN:

Q. I'll ask you if based on your conversations with those physicians who contacted you discussing the present condition of young Mr. Patrick, and based upon your observations of the medical records, has this child improved, worsened or stayed the same since he was taken by the Department of Human Services and Dr. Polk?

A. I think in some aspects he has deteriorated. Specifically, he was never intubated, he was never on a respirator, and now he's on a respirator. His diarrhea, as per the records, he's still having 12 to 13 stools a day which are loose and copious, leading to a fluid imbalance. He is still having trouble with maintaining hydration status, and he is either getting dehydrated which needs aggressive fluid management which is being done or he's getting overhydrated which is leading to compromise of his respiratory status, which is, again, being dealt with appropriately.

Q. Let me ask you this, sir. In regard to -you heard Dr. Polk talk about the investigation he had made into organisms that had been grown and his statement about how he believes that that supports his diagnosis of Munchausen's Syndrome by Proxy, did you not?

A. Yes, I did hear.

Q. Would you explain to the Court, please, sir, in regard to those particular gross, why -- first of all, is it your opinion that those assist in this Court, or any court, considering a diagnosis of Munchausen's Syndrome by Proxy?

A. Only if someone can show me evidence that they saw someone actually injecting them into the central line.

Q. How else could they have gotten -- could this child have gotten this infection based upon your medical experience? Is there another explanation?

A. There is.

Q. What is it?

A. When a child has diarrhea, it's extremely, extremely difficult to maintain a hundred percent sterility of the central line. It's a known fact that kids with explosive diarrhea will have very often contamination of the central line at some stage.

Q. If there was a contamination -- is it a reasonable medical opinion that contamination described by Dr. Polk could have originated from the diarrhea that this child was experiencing based on the medical records?

A. That is correct.

Q. Is that, at least in your opinion, as reasonable a conclusion, based upon medical certainty, as that someone, in particular the mother, somehow inserted foreign substances or fecal matter into the central tube?

A. That is correct.

Q. What is TPN and why would it have chromium in it?

A. Chromium is an essential element which is an integral part of total parenteral nutrition, and it is also a contaminant in total parenteral nutrition, and extremely difficult to exclude that from TPN solutions. And, in addition, we do add chromium to the TPN to make it more wholesome. The level of chromium will increase if there is liver damage or any liver disease. It becomes extremely difficult to correlate chromium toxicity from the urine sample in a child who's acutely ill who is on chromium in the TPN. It becomes very difficult to make that judgment.

Q. And without knowing the blood chromium level, you couldn't judge, based on toxicological guidelines, whether there was chromium toxicity. Is that correct?

A. I'm not aware of what the exact diagnostic guidelines are for chromium toxicity. But one of the things I would certainly would like to check is what exactly was the chromium level in the TPN. It is possible the pharmacy could have accidentally put in extra chromium.

Q. That's not unusual?

A. That is not unusual.

Q. That certainly is a reasonable medical possibility other than the mother did something to inject chromium in the child. Is that true?

A. That is possible.

Q. Let me ask you this so that we have a picture of this lady who you said spent almost every day with you for three months. Was this lady docile, quiet, as Dr. Polk said he saw and observed?

MS. LUSTER: Objection. That's not -

THE COURT: Sustained. I never heard Dr. Polk say she was docile and quiet.

MR. FRIEDMAN: Let me try again.

BY MR. FRIEDMAN:

Q. Describe Ms. Patrick's approach to interact to treatment of her child -- her son as you saw and observed and experienced, of course, during your course of treatment of him this year.

MS. LUSTER: Your Honor, I think we've got to kind of limit that to the circumstances. I know Dr. Polk discussed her appearance when he said your child is gravely ill. Other than that --

THE COURT: I'm not sure her approach to getting treatment for her son -- I think with the letters and everything else was aggressive and -- I mean, if there's something else, Doctor, tell me what her approach was.

THE WITNESS: I think she's a very demanding mom. She is not just happy with good quality care. She constantly gives you the impression that there is something more which can be done for the child and she's constantly pushing the medical system to seek more answers. And I did encourage that to the point that I offered her free access to the library and instructed the librarian to let her Xerox whatever material she wanted at my business expense. I gave her two textbooks of pediatric gastroenterology and nutrition in her room so she would not leave the child's bedside to read, and I also offered that I would give her a free modem for Medline search if she so desired, and she declined that.

THE COURT: Why did Phillip leave the hospital, your clinic?

THE WITNESS: He was sick but stable and mom really wanted to go home. She felt the best place for him was at home because she has three other children. And she struggled with me for three weeks and I delayed the discharge by three weeks until I was not completely, completely satisfied that he is sick but stable and that he could be managed at home. And I wanted to be comfortable that the mom is capable of providing care at the home level with home health nursing.

THE COURT: And did you discharge him to her home?

THE WITNESS: That is correct.

THE COURT: And are you aware if that's what occurred?

THE WITNESS: That is correct.

THE COURT: And how long did that go on, if you know?

THE WITNESS: A few days. THE COURT: Two?

THE WITNESS: Maybe three days.

THE COURT: Three days?

THE WITNESS: Yes.

THE COURT: And then what happened?

THE WITNESS: And then the mother called me and said that he had some respiratory distress so I referred her to the pediatrician who felt the child may have pneumonia. And subsequently they treated him and then he was -- mom was not really comfortable with the care in Memphis, so she called me again and she felt that the best place for her child would be Vanderbilt since it was close and they planned to move to Nashville, and if I could facilitate. So I called Dr. Barnard and requested him to accept the child, and Dr. Barnard kindly consented to take care of the child.

THE COURT: Thank you, Doctor. I wanted to get that straight in my mind. I had not been sure who had been treating this children when. Do you have any other questions?

MR. FRIEDMAN: I do.

THE COURT: Well, we're going to adjourn. We will start back at nine in the morning. Counsel can consult as to how you want to proceed.

(WHEREUPON, Court was adjourned at this time.)

MR. FRIEDMAN: Yes, ma'am. I tell the Court this most respectfully. In an abundance of precaution, (a) I did advise opposing counsel there was little we could do, I did also serve -- this doctor was appearing pursuant to a subpoena that we had sent down there which probably didn't have the ability to compel him before this Court, but he appeared -- based on that he appeared without fee. The only concession or consideration which was paid was air transportation which, in fact, my clients were able to do.

In an abundance of precaution so that I could look Your Honor in the eye and so that my client could, we did issue a second subpoena here in the courthouse for Dr. Khoshoo because I had to advise him because I could not release him from this Court, He was in the process of testifying and he appeared before the Court, and I might tell the Court I don't know if that subpoena has reached the jacket because the jacket was still apparently up here in the courtroom when we went down to the clerk's office. But I do have a copy of it --

THE COURT: I don't believe I have any jurisdiction whatsoever, that I'm aware of, to do anything about an out-of-state witness. And I am not unsympathetic, but I also said at the beginning of this case that these are the timetables. He could have gone first. I cautioned everyone all throughout yesterday afternoon that I had to leave at 4:00, and that's what I did. And, actually we went to eight minutes after four, So you can call another witness, you can take a deposition, we can adjourn this preliminary hearing so that you can call another expert, I'm willing to do whatever you want to do, I have no jurisdiction that I'm aware of to do anything with Dr. Khoshoo.

MR. FRIEDMAN: I don't take exception, I might tell you that Dr. Khoshoo did fax back to my client last night from New Orleans a fax saying -- and I'll be glad to share this with counsel, this fax from the Kinko=s on Causeway Boulevard in New Orleans that he had to leave Nashville today and fly to New Orleans to attend to unavoidable patient care related to engagements, more importantly, to attend my sick inpatients and one critically ill child, He says he could be available to complete his testimony, he says, Thursday, September 26, 1996, And I understand that the doctor doesn't have a right to set this Court's time schedule and I want the record to reflect the Court -- I was not here when the Court set the parameters of this hearing, I was not of record or not part of the --

THE COURT: Oh, don't even start that. Your co-counsel was here.

MR. FRIEDMAN: But I was about to say that my co-counsel advised me, I knew what Your Honor had said. No. I'm not trying to challenge what the Court said, I wanted the Court to know that we, on behalf of our client, and our client made every effort to keep this physician here, and I felt that I owed that responsibility as an officer of the court and also to counsel and my client, I was not challenging what the Court said nor challenging the way the Court's conducting its docket. We were under that understanding and my co-counsel made me aware of that.

Your Honor please, as to seeking a continuance, if Your Honor would indulge me for a moment, all I can advise my clients last night and this morning is the Court had a number of options that it considered. Under this unusual predicament, I did not predict what Your Honor might consider doing. If Your Honor will indulge me for about two minutes, I'll give the Court an answer. I'd like to consult with my clients,

THE COURT: Well, there are several things that everyone needs to be aware of. From the beginning, the two lawyers that have been involved for the parents, and I trust and I'm very confident, that the lawyer that represented the three lawyers at the hearing was well aware of all the possibilities in this case. We set a very early hearing for the trial, October the 22nd and 24th, Is that correct?

MR. HIRSH: It was the 23rd, Your Honor.

THE COURT: There may be many doctors. I don't know what you'll decide to do about that, But there is ample time. We'll have a pre-trial conference that we are going to end up this morning, You are absolutely entitled to a preliminary hearing, which I have given you, I believe, every opportunity to present whoever you want to present, whether it's a local doctor that's available, Your clients can testify today. What I would like to do is go on. I think Dr. Polk is here, I want for you to con -if you have any other cross of Dr. Polk, and Ms, Miller to be able to finish if we need to do that. You know, for the purpose of a preliminary hearing, if we need to do that, I want everyone to have an opportunity to do it, If you plan to present your clients or any other witnesses that are here, I want you to have an opportunity to do that,

MR. FRIEDMAN: Your Honor please, I have no problem with that, I do have a few further questions for Dr. Polk, and I think what -- I don't think there's any reason for me to talk to my clients about if they want to continue this based on what Your Honor has said.

THE COURT: I would like to complete the preliminary hearing, but I'm also very willing to adjourn if you need to get some other witnesses here. If you want Dr. Khoshoo to come back on, what, September the 26th, you know, we can do that if you think that is helpful and that's going to provide any light on the reasonable belief standard that I use in a preliminary hearing. I have cases scheduled, I could see if I could get a special, I want them to have a preliminary hearing, I think my concern is that they understand that this has been set very quickly for trial and that we will have a full trial where we hear everything.

At this point, having heard Dr. Polk's testimony, before you finish the cross, before I've heard from the guardian ad litem, I believe the State has carried their burden, but I'm very willing, obviously, to hear whatever you want to offer in opposition to that, I've heard Dr. Khoshoo's testimony, Although you did not finish, I'm assuming you asked him the most important things first, which I have heard. And, again, you can call someone else if you want to do that. So why don't we -- Dr. Polk's here.

Let's finish that and then talk again.

MR. FRIEDMAN: Very well.

THE COURT: Dr. Polk, thank you for rearranging your schedule.

MR. FRIEDMAN: Thank you, Your Honor.

DAVID BRENT POLK, M.D.

was recalled as a witness, and after having been previously sworn, continued to testify as follows:

CONTINUING CROSS-EXAMINATION

QUESTIONS BY MR. FRIEDMAN:

Q. Dr. Polk, I have just a few more questions for you in regard to this matter. I believe that you advised us yesterday that no one, no medical personnel, no doctor, to the best of your knowledge based on your review of the records, had made any accusations concerning Munchausen's Syndrome by Proxy concerning Ms, Patrick or any of the Patricks prior to your consideration and your diagnosis, Is that what you said?

Q. Do you know the nurse's name, by any chance?

A. No, I do not.

Q. At that time, did you render any care or treatment to her son?

A. I'll have to look at the record.

Q. Can you do so, sir?

A. Yes. My purpose in being on call was to make sure there had been no significant changes in him over the weekend,

THE COURT: Doctor, while you are looking -- I may have just forgotten -- did you give me an admission date? Do you have that in your record?

THE WITNESS: July the lst of 1996.

THE COURT: He came to Vanderbilt on July the 1st, but this is your first time to have provided him with any care or had met his mother, Is that correct?

THE WITNESS: Yes.

THE COURT: Was your group covering Phillip prior to that?

THE WITNESS: Yes. From July the lst, they covered Phillip until the current -THE COURT: Was there a primary physician? I don't know if that's how you work that.

THE WITNESS: The attending on service is the primary physician, so for the month of July it was Dr. John Barnard, The month of August it was Dr. Karen Crissinger, and then I came on in September,

THE COURT: Okay. Thank you.

THE WITNESS: On August the 24th there was a bacterial organism culture, That was the first indication that we had the blood infection, and he was started on Ampicillin at that time for the assumption of the treatment of leuconostoc, the bacterial organism which he was growing. So, yes, I did institute therapy.

THE COURT: Doctor, what date? I'm sorry,

THE WITNESS: August the 24th of 1996,

THE COURT: Thank you,

BY MR. FRIEDMAN:

Q. And that would have been the first day you would have seen the child?

A. Yes,

Q. And I presume the order to start that substance was your order. Is that correct?

A. Yes. But the child was present when I was with Mrs. Patrick, So that would have been a two-hour -

Q. So you -- the 10 minutes you spent with Ms. Patrick was in the room with the child?

A. At the patient's bedside, yes.

Q. I understand. When was the next time that you spent time with Ms. Patrick, if you know?

A. I'm not certain, It was either Wednesday or Thursday afternoon, the 4th or 5th of September,

Q. Would your record --

A. Yes, my record would reflect that.

Q. Refer to your record so that we're accurate.

A. (Witness complies,) That would have been September the 5th,

Q. What time did that take place?

A. I don't have the exact time documented, I have clinic in the morning on that day and so it would have been in the afternoon most likely.

Q. You did not -- and, again, I'm not saying--

A. I did not document the time that I spent with her,

Q. You did not document or log in the time?

A. No.

Q. Approximately, to the best of your knowledge, not based on the records, how long did you spend on this date, I think you said the 5th, which was the third time you would have seen Ms, Patrick, how long did you spend with her to the best of your knowledge?

A. About 20 minutes.

Q. Was this also in the room with Phillip?

A. Yes, at the bedside,

Q. Was this part of the --

A. This was the intensive care unit where I was seeing him. It was not a private room and we could have been alone.

Q. This was the intensive care unit. Look on this date, this third date of the 5th when you spent approximately 20 minutes with Ms, Patrick, did you include in that physical observation a review or a check of the child? Was that part of the 20 minutes?

A. Yes -- no, I came back at a different time and examined him.

Q. Came back at a different time for examination. So you spent 20 minutes --

A. At the bedside, I just held his hand, touched his abdomen, looked at him,

Q. Let me ask you --

A. And I did spend time with the medical record at the end of the bed.

Q. If I can, I'd like to pass you forward a couple of pictures and ask you if you can identify them and in particular I want to talk to you about some things that are depicted if I may first pass these over to counsel. Thank you,

MR. FRIEDMAN: I'll bring them back to the Court. I didn't mean to pick apposing counsel first,

THE COURT: No. We just need a court officer.

MR. FRIEDMAN: These are pictures that were taken at Vanderbilt, Let me show them to you. If I may approach the witness and hand him the pictures.

THE COURT: You may.

BY MR. FRIEDMAN:

Q. If I may, let me pass you these pictures and ask you, first, if you can identify who that is.

A. That's Phillip Patrick.

Q. Can you identify that as being, as a matter of fact, in Vanderbilt Hospital?

A. I can not.

Q. I don't know if you can tell from the decor or not because there's not --

A. There's not really anything visible for me to answer that question.

Q. Yes, sir. Let me ask you this, if I may. We talked yesterday briefly about various, I'll call them in lay terms, tubes that are being -- were being utilized or are being utilized for the care and treatment of this child, Are some of them depicted in those pictures?

A. Yes, one of them is, The gastrostomy tube is clearly visible coming out of the side of his stomach.

Q. All right, Let me do this, if I may. Could you please, sir --

MR. FRIEDMAN: May I approach, Your Honor?

THE COURT: Yes.

MR. FRIEDMAN: Thank you.

THE COURT: Go ahead, please.

BY MR. FRIEDMAN:

Q. Would you please take this blue pen, and if you'll draw a pretty good line to show what is depicted as what you're saying is the gas -- what did you call it, a gas --

A. Gastrostomy tube. This pen is not working.

Q. Right. Let me try --

A. Can I use mine?

Q. Sure, if your pen works better, that'd be great.

A. (Witness drawing on picture.)

Q. Now, that was one tube. Could you state medically and physiologically, if you will, where that tube is located because our record will include the pictures but won't show --

A. It's in his left mid-axillary line, which is a line, imaginary line, drawn from under the armpit down to the hip just below his rib cage, which is referred to as the costal margin is how I'd refer to it in medical terms,

Q. In lay terminology, it's just above where his diaper is, isn't it? Is that true?

A. It looks about an inch and-a-half above where his diaper is.

Q. Now, there was another tube that -- what's the purpose of that tube you just described?

A. The purpose that it was originally placed, as best I can tell from the records, was that in order to maintain good calorie intake for this patient who had a failure to thrive or had not gained weight well at the time that he arrived at Children's Hospital of Philadelphia, they're used frequently for that purpose of maintaining calories and providing calories.

Q. So you feed him, you feed the body through that tube, Is that true?

A. Yes.

Q. That means that that tube is from time to time, day to day, opened and closed, Is that also true?

A. Yes.

Q. Who opens -- and when I say "who", I'm not asking about a person, rather about a category of person, Are doctors the only ones who open that tube or do other people open that tube? Who all can open that tube? Maybe that's the better way.

A. In Phillip's case, it's documented that Mrs. Patrick opened it, that the nurses opened it, and that physicians would occasionally look at it, yes.

Q. How many times on an average day, if you know, would it be reasonable to expect that tube to be opened by someone, by anyone who would rightfully open it? Let me say that,

Q. It depends, When he's on continuous tube feedings, meaning that the nutrition is continually be profused through there, it would only be opened at the time of the starting of those feeds and the stopping of those feeds, If he was having intermittent, what we call bolus feeds where he would receive an ounce of formula at a time and then the tube be clamped, then it would have been done multiple times. or if he was not being fed at all through it- it might be opened continuously to be vented to the air.

THE COURT: If I could stop a minute and this is always difficult, I think, I'm the one that needs to understand this. Would the top of the tube open and food is put -- I mean, tell me exactly what THE WITNESS: The gastrostomy

MR. FRIEDMAN: It might help, Your Honor to look at the picture --

THE COURT: Okay,

MR. FRIEDMAN: -- if you can see it. Let me pass him another one so Your Honor can see, Does this likewise show it, and I'll bring it over?

THE WITNESS: Yes.

MR. FRIEDMAN: Let me show it to counsel before I show it to the Court. May I approach the bench, Your Honor?

THE COURT: Yes. See if you can educate me a little bit about, you know, is it sort of a snap top or --

THE WITNESS: It has -- you may be able to see in one of the pictures, there's a clamp that shows how you open and close this by just clamping off -- putting pressure on the tube much as you might clamp off a garden hose. But to clamp off the tube so that nothing could be applied, On the end, there is a cap which allows you to either insert a syringe for drip tube feeding purposes, or you can directly connect to a line so that there's no opening between the food source and the tube itself. It's a continuous line.

THE COURT: Does the white, I guess, connection that goes into the stomach, or appears to go in, does that stay in?

THE WITNESS: Yes. It's there all the time.

THE COURT: And was that put in originally and did it stay in all this time or has that changed periodically?

THE WITNESS: To the best that I can tell in reading the medical record, it's only been replaced the time that he had the gastrostomy tube replaced when it fell out in Philadelphia.

THE COURT: Has Phillip been on all types of the feedings you mentioned?

THE WITNESS: Yes, Your Honor, that's why I mentioned those,

THE COURT: Like three days of this or five days of that, and that you evaluate -the doctor evaluates that?

THE WITNESS: Yes.

THE COURT: Are we going to go over what the other tubes are?

MR. FRIEDMAN: Yes, ma'am, I will do that, but, first, I'd like to --

THE COURT: A central line, when you refer to a central line, is that what you are calling the central line?

THE WITNESS: Yes.

THE COURT: So it's simply -- is it just applied to the gastrostomy tube or is it used for other tubes that may go into his body?

THE WITNESS: The central -- it's the tube that's below that, Your Honor, I thought that that was the one you were pointing to.

MR. FRIEDMAN: Let me see if I can't get a better picture --

THE COURT: Let him just mark that, perhaps, for me,

MR. FRIEDMAN: I am going to ask they both be introduced. We've had --

THE COURT: That's fine. If you'll hand them to the doctor and if you would circle the central line,

THE WITNESS: (Witness complies.)

THE COURT: This one may even be better.

THE WITNESS: It's not visible on that one, It's just visible on this one,

THE COURT: Tell me what happens with the central line.

THE WITNESS: The central line provides the ability to directly give nutrition in liquid form that's prepared for direct administration into the bloodstream. The abbreviation for that is TPN that both Dr. Khoshoo and I described yesterday. It also provides an access for providing antibiotics in times of infection or any other sort of intravenous medications he would need.

THE COURT: It is, I'm not quite sure of this but it enters the body right above basically the waistline, Is that correct?

THE WITNESS: Yes. It's tunneled under the skin and covered over by skin,

THE COURT: And it is at maybe six inches below the gastrostomy tube. Is that correct?

THE WITNESS: Maybe three inches below the gastrostomy tube, yes, Your Honor,

THE COURT: And those are the two tubes feeding into his body, and there are no other tubes feeding into his body except these two tubes?

THE WITNESS: He also has tubes under his nose which are providing oxygen, but those are the only --

THE COURT: Right, But in terms of inserted into the skin, would that be a correct way to state --

THE WITNESS: Those are the only tubes that go through the skin, yes.

THE COURT: That's what I'm trying to be clear about. And the lower one of those is called the central line or TPN. I suppose I should have stopped you yesterday and asked that, Okay. I think I'm through. Go ahead.

MR. FRIEDMAN: I didn't hear exactly what the doctor said, but it's a lot more important that you hear.

THE COURT: It is, I'm really the one that needs to hear and if you'll talk to me instead of him, that'll help me,

THE WITNESS: Sorry.

MR. FRIEDMAN: No, that's fine, Your Honor.

THE COURT: Go ahead. Your next question.

BY MR. FRIEDMAN:

Q. Please, sir, where does this central line end? Where does it terminate? Where does it go to?

A. I'll have to find the operative report where the surgeon ended up placing it.

Q. Would you do that for us so we'll know where it ends,

A. (Witness reviews documents.)

THE WITNESS: That may take some time, Your Honor, because I don't know the exact date that this line was placed by the surgeons,

THE COURT: Is there a usual place it ends or --

THE WITNESS: It goes into a major blood vessel and sometimes they will end in what's called the superior vena cava, the blood vessel returning to the upper portion of the heart, above the heart, or the inferior vena cava, and in his case it ended in the inferior vena cava, but I'm not sure which side, if that's going to be your next question.

MR. FRIEDMAN: That's not important.

BY MR. FRIEDMAN:

Q. You said that this is sometimes open, sometimes closed, sometimes feeding, sometimes not. Is that true?

A. Are we back to the gastrostomy tube?

Q. Yeah, We're back to the gastrostomy tube first.

A. Yes.

Q. Why, with this particular baby, would that be closed?

A. At the time of applying medication.

Q. So --

A. In any baby who's getting medication with a gastrostomy tube, the tube is closed in order for the medication to stay into the stomach until it's absorbed.

Q. Is this tube also left open after the food is absorbed with this baby and, if so, why, if you know?

A. It is occasionally. I've seen it both opened and closed.

Q. Do you know why it would be left open?

A. As I had said earlier, one possible reason to leave it open is for venting or gas buildup in the stomach.

Q. This baby has had substantial problems with bloating, with all that, hasn't it?

A. Yes.

Q. If you please, sir --

THE COURT: Let me interrupt you again. It helps me if I follow where my mind's going if it doesn't interrupt you too much.

MR. FRIEDMAN: Not at all,

THE COURT: Doctor, would a physician be determining when it's opened and closed or would the nurse going into the room or is it sort of casual or is it important that it be done?

THE WITNESS: Any of the above is possible, but it could be determined by a physician that it needs to be left open all of the time or it could be closed or clamped based on the nurse's decision or a parent's decision. There's -- it is casual, as you say.

THE COURT: In this particular child, is that an important point in your view? In other words, is that something that should be determined that this tube will always be closed as soon as the feeding is completed or will it be open for an hour after the feeding is completed? Is that an important point?

THE WITNESS: No,

THE COURT: And why is that?

THE WITNESS: Because patients that have these sorts of gastrostomy tubes, when patients are up and sitting and ambulatory, walking around, or in Phillip's case, either in a stroller or sitting up, then we generally want the tube clamped or in an elevated position so that if there is some gas buildup in the stomach, it would be able to go back up into the tube. And if he is lying down or many other patients with these gastrostomy tubes when they're lying down will frequently be left open. It provides a very easy way to provide the formula and to make sure there's no regurgitation or vomiting in children in general, The tube is left, if I can describe it, generally a large syringe is used, which is attached to the gastrostomy tube. And above that is allowed to drip in the formula --

MR. FRIEDMAN: I have a picture of that if that'll help you visualize, Let me show it to counsel.

THE COURT: Just go ahead and give it to me,

MR. FRIEDMAN: If you say so, I'll do SO.

THE COURT: If they want to see it, they can see it in a minute, Go ahead.

THE WITNESS: Could I just see that? Would you mind? Can I see that?

THE COURT: Yes,

THE WITNESS: Yes. That's exactly what I'm describing, an elevated tube THE COURT: This is the syringe -

THE WITNESS: That's the syringe that's been attached to the top of the tube.

MR. FRIEDMAN: Here's a picture that shows you the two lines if that helps.

THE COURT: Ms, McClure --

THE WITNESS: But using the tube in that manner is very common in patients with gastrostomy tube feedings.

THE COURT: And it's common for the nurses who care for this child to know how to leave it open it and close it and that's part of their training.

THE WITNESS: Yes,

THE COURT: When you talked yesterday, we talked about the coffee grounds and fresh blood, there's a question that I had. Can you show me on any of these pictures where that would be, where that would be found?

THE WITNESS: In the actual gastrostomy tube, itself,

THE COURT: Would you mind stepping up here?

THE WITNESS: Not at all,

THE COURT: We do that some on x-rays and other things,

THE WITNESS: (Witness complies.) It's not going to be as visible in this picture. In this picture in this tube in here -

THE COURT: Is where that was found.

THE WITNESS: -- is where you would have seen it.

THE COURT: And, again, counsel, I want you to hear this. You may or may not be going into it. If it was found in here, is there any way that that blood could have I don't want to say seeped up, but come from within the body?

THE WITNESS: Yes.

THE COURT: Is there a way to know whether or not the blood would have come from within the body or have been inserted at the top?

MR. FRIEDMAN: DNA testing, fingerprint testing.

THE COURT: I want the doctor to answer that, not you, counsel.

THE WITNESS: You could do blood typing. There are different types of forms of what's called Rh positive -- there are different forms of that which you could test to then determine if Phillip's -- i fit was most likely from him or from his mother.

THE COURT: How often have you seen blood in the tube from a child you were treating? Is that very unusual, fairly uncommon?

THE COURT: Yes,

BY MR. FRIEDMAN:

Q. The second, and I'm going to call it a tube until you identify it, that is under the diaper here, what is that?

A. My assumption is that that would be his central line based on the clarity of this picture.

Q. Here, the central line that you've described before is actually under the diaper area, isn't it? That's where it's put in,

A. That's where his was inserted, yes.

Q. Can you identify any name here as being someone who works at your office --

A. Reverend Dr. Holly Nelson.

Q. Do you know --

A. I met her in taking care of Phillip.

Q. My question --

MR. FRIEDMAN: I'm going to step back from the witness, Your Honor.

BY MR. FRIEDMAN:

Q. My question is, is that someone who works at Vanderbilt Hospital, so you'd recognize the name tag.

A. She's wearing a Vanderbilt Hospital name tag, I'm not certain if she's employed by Vanderbilt,

Q. Well, it works out that I think she might be. I'm not sure whether she is or not. Here, that central line that we talked about is physically under this child's diaper, isn't it?

A. Yes.

Q. And without a doubt you would agree, wouldn't you, that feces, the child's feces, especially having as you described, I think, sometimes 12 to 18 loose stools, the feces could easily get around that line and around where it's inserted, couldn't it, Doctor?

A. Yes. Feces could be around the line at that point, but this is covered with something called an op site, which is a protective barrier that screens out bacteria.

Q. That's if it's properly maintained and properly applied, isn't it?

A. Yes.

Q. Can you tell if that's the case there?

A. Not in this photograph, I cannot.

Q. But you can tell that the line physically passes under the diaper where you would expect to find feces in a child that's stooling loosely 12 to 18 times a day, whether it's an explosive stool or not. Is that true?

A. It appears to pass under the op site before it enters the diaper, but I cannot tell from this photograph.

MR. FRIEDMAN: Your Honor --

THE COURT: Is it op site?

THE WITNESS: Yes. It's called short for operative site, It's a sterile dressing that's applied over that allows air to move in and out but does not allow -- the pour size is small enough that bacteria is prevented from entering it.

THE COURT: Is the purpose of that to prevent feces from entering into the line?

THE WITNESS: Yes, Your Honor.

THE COURT: But your testimony is that the feces could still enter the line and any idea -- idea is not the right word. In your experience, in your observation, is this fairly common that you have to deal with the infection that comes from feces entering into the line?

THE WITNESS: It is not common, I have dealt with it. Usually, Your Honor, if the source is the site -- in fact, always if the site is the source, there's evidence of local infection and local inflammation at the site where there is puss draining from the site and erythema and an actual local infection before there becomes a spread of infection through the body.

THE COURT: Was there any indication in the records you reviewed --

THE WITNESS: No.

THE COURT: -- that there was such a local infection? Okay. Thank you.

MR. FRIEDMAN: I'll pass this back.

THE COURT: Has the State gotten far enough along in the preparation for the trial that you are planning to have someone here from Children's Hospital, if you know yet? Are you going do that or go up there for deposition?

MS. LUSTER: We don't know yet whether it's going to be through deposition or bringing them down here.

THE COURT: And then --

MS, McCLURE: Or by telephone deposition.

THE COURT: I want to remind everyone again, it's a preliminary hearing and I want you to go into that. But, again, a reasonable belief is the standard that I have applied, And certainly at trial I need to know all of this in great detail as to what happened. You are pointing out areas, as you are certainly bringing to my attention that there may be another explanation for the facts. But what I'm hearing from the doctor is that those things are rare or uncommon and that's the proof that I'm being presented today.

MS. LUSTER: And, Your Honor, just to ask in terms of focusing counsel's questions, since the Court is stopping at 11:00, the guardian has not yet had a chance to question, and we have some redirect,

THE COURT: I appreciate that, and I know counsel is trying to move along with the things that he's going to bring up. But unless you're going to provide another expert who will say Dr. Polk is totally out of touch with reality, that is a very common thing that happens, that the feces are in the line, that there's not a site infection, then I have your point and will continue -MR. FRIEDMAN: I do not intend to put on another expert.

THE COURT: That's what I'm assuming --

MR. FRIEDMAN: And as the Court's aware, there are other people who dealt with this child much more extensively than this doctor located in other cities.

THE COURT: And we'll have those folks at trial at some point.

MR. FRIEDMAN: Yes. I think that -THE COURT: Any other questions?

MR. FRIEDMAN: I do have just a few,

BY MR. FRIEDMAN:

Q. After this third meeting of approximately 20 minutes that was conducted on September the 5th, did you have any further meeting with the Patricks, that being the parents, prior to taking this -- to making your diagnosis, as you said, at 3:00 in the afternoon and taking the child into the custody and separating the child from the parents on the next day? That would be September 6th, Did you have any meetings before that with them? That was my question.

A. I think that I said that I made my diagnosis at 1:00 on Friday afternoon, September the 6th, and I did not have any meetings prior to that with them.

Q. So you have expressed to us each and every occasion and length of the occasion to the best of your ability or based on your medical records that you had occasion to meet with, talk to Ms, Patrick, is that correct -- prior to making your diagnosis. Excuse me, I'm sorry, I should have included that.

A. Yes.

THE COURT: While counsel's looking for the next question, I'm a little confused about how it works in terms of in August -or September, Your colleague was in charge in August, I guess I just assumed with this very ill child that the doctor, some doctor is seeing this child every day, Would that be correct?

THE WITNESS: Yes, I'm seeing him -my visits were every day and I saw the child every day multiple times during the day. But the primary physician -- this probably got lost in my testimony yesterday. When the patient is in the intensive care unit, he is the primary responsibility of the intensive care physician, They become the attending physician making all of the decisions and we become a consultant at that point.

THE COURT: Who was the intensive --

THE WITNESS: There are four of them and they rotate through. The ones that have principally taking care of him have been Dr. Jay Deshpande, Dr. Amy Lynch, Dr. Rick Barr and Dr, Mack Packer.

THE COURT: So when he was in ICU, these four physicians were rotating their care and you would see him as well

THE WITNESS: Yes.

THE COURT: -- during that time, And I thought yesterday you said you had seen him multiple times and had seen the mother, I guess, more, I thought, more than the three times that counsel has brought out, But that would be --

THE WITNESS: I observed her from across the room more than the three times that counsel has discussed.

THE COURT: In terms of having conversations with her --

THE WITNESS: Yes, Only on those three occasions.

THE COURT: And do you have any way from reviewing the record, are you aware just generally, it doesn't have to be the date, of how often your partners saw Ms. Patrick in July and August?

THE WITNESS: I don't. In looking at the record, the notes were signed every day of both of those months, and general discussions with them they saw her every day.

THE COURT: You can continue.

MR. FRIEDMAN: Yes. I have just a few more questions.

BY MR. FRIEDMAN:

Q. Let me ask you this, Doctor, You've talked about -- I do have one more picture I'd like to introduce. It shows, again, the tube under the diaper, if you can testify to that.

A. (Reviewing photograph.) Yes,

Q. Again in this picture, it's under the diaper, And when you talk about -- I do want to amplify this -- the layer that you're talking about that's supposed to keep out bacteria is really a tape, isn't it? It's a tape substance.

A. It's a tape with less than .2 micron diameter that's designed specifically for operative procedures in order to keep the wound site from being contaminated during surgery. And when it was found how effective it was at that, it was begun to be used in central lines as a protective coating.

Q. My question was, it's a tape-type substance, and if it's not stuck down to it or if it becomes unstuck, then it obviously doesn't serve its purpose at keeping out bacteria, does it, Doctor?

A. If it was not covering the site, it would not cover it.

Q. Thank you, Let me ask you this, How many -- oh, did you identify the picture?

A. Yes.

MR. FRIEDMAN: We can pass that, I would like each of these marked as an exhibit. We have not being saying exhibit numbers, so I'm not sure how Your Honor has been numbering these.

THE COURT: I'll just number them at the end and they're in the record.

MR. FRIEDMAN: Very well.

BY MR. FRIEDMAN:

Q. Let me ask you this, Doctor. On an average day, how many folks, when I say "folks", I include doctors, nurses, technicians, family, friends, preachers evidently and whoever, on an average day, how many folks are in and out of this child's room, if you know or have a reasonable estimate?

Q. I'll take that back. You have presented to counsel, haven't you, that one of the best documented, best known cases of Munchausen by Proxy is one that arises from England that involved a nurse who it's documented killed four children and may have injured some twenty -THE COURT: Counsel, this is appropriate at trial, I just told you that I understand other people could have tampered with the line and many other things, At trial, you're going to pursue that. You're going to have an expert on Munchausen's that's going to tell me all of that,

Q. Doctor, were you present at the visitation -- you talked about the visitation of the parents and were afforded the rules for visitation after you took custody of the child, Were you present for that visitation?