juvenilecourt4

BY MR. FRIEDMAN:

Q. Doctor, why do you oppose, even during the period where you have isolated this child from his parents, removed the child from his parents, why did you oppose them and their attorney having access to the medical charts of this child? Can you explain that to the Court?

A. The reason for not discussing this with Mrs. Patrick was that it was felt at that time the only information that she needed while the State had custody was whether or not Phillip was getting better or whether or not he was getting worse.

Q. I guess what I'm getting at is that was on your decision. You were the decision maker from then on out, and it was your --

A. No, I was not the decision maker from then on out. I did not have custody of this patient.

Q. Who made the decisions about the availability of medical records and charts?

A. I was involved in that decision.

Q. Who? Who all else was?

MS, LUSTER: Your Honor, I'm going to have to object to this since counsel clearly yesterday had provided records to his own expert up until yesterday. I mean, there's -- other than the fact that they were -- the contract clearly indicates they're not going to discuss it, access has been given.

THE COURT: Let me inquire, The question is relevant to the Court.

THE WITNESS: The only relevance that I can give is that when Mr. and Mrs. Patrick would telephone, they would speak to the nurses and ask them if they would be willing to come and be a character witness for them, and part of the limitation in the discussion was to give some guidelines so that the nursing staff would not become engaged in protracted conversations about the custody issue or the Munchausen's issue, It was to give specific guidelines about how the child was doing, but, in part, to protect the nurses from being called and questioned at work and, in fact, some residents who were called at their home and told that they would be subpoenaed.

THE COURT: If you'll let me ask the only thing that's relevant to me is whether or not the restriction on Mrs. Patrick and Mr. Patrick having access to the medical records is related to your care of this child?

THE WITNESS: No.

THE COURT: So it really, in terms of -- no?

THE WITNESS: I don't think I'm understanding --

THE COURT: Let me restate the question. You have diagnosed, based on all the information you've given me, that the mother in your opinion has Munchausen Syndrome by Proxy. Is there a relationship between that diagnosis and your reasonable belief at this point, to a degree of medical certainty, that access to the medical records is an issue, her access to the medical records?

THE WITNESS: Yes, that is,

THE COURT: So if you will tell me why that is so that I know whether or not the counsel for the mother -- the point he's asking is why should she not see the medical records. I'm not worried about the lawyers, but in terms of the mother --

THE WITNESS: In the day-to-day management, Your Honor, she would repeatedly, after the staff had taken custody, instructed nurses in how to care for him, how to provide medication for him, what medications he should or should not receive. She informed me on the phone more than one occasion that he should not receive chloral hydrate, that he had a terrible reaction to that which she did not elaborate on, but should never receive chloral hydrate. She was very emphatic about that. And when I told her that I did not want to discuss his medications with her, she said, You do not understand my past experience with my other child. I can help you make those decisions about what medication to use for him. And I said, Ms, Patrick, I do not need your help in determining the medications to use for Phillip at this point, And I might add he's been on his medication that she described he would have horrible reactions to multiple times in the past, according to the medical record, with no documentation of significant reaction and is currently on them with very adequate sedation.

THE COURT: Do you see a problem with that?

THE WITNESS: only in the context of -typical in the diagnosis of Munchausen's Syndrome by Proxy there is a very strong alliance by the perpetrator of Munchausen's by Proxy with some health care providers and making certain that she did not still have the ability to control the medication that was administered.

THE COURT: And I understand that and that's why I was asking the first question

THE WITNESS: That's the only reason.

THE COURT: -- as to whether or not there was a reason, a medical reason in the management of Phillip that she should not have that detailed information, And I think that that is appropriate. I think my question is how can we try to manage so that she can have either something that you type out each day and that something is provided that gives a little more information. Do you think that's a problem?

THE WITNESS: No, I think that can be done, Your Honor.

THE COURT: That's what we'll do about that.

BY MR. FRIEDMAN:

Q. Why has her visitation been limited to a visit of 15 minutes? What's the magic of 15 minutes?

A. The 15 minutes was determined that that was the only length of time that the pediatric intensive care unit would be able to devote a nurse who could go nowhere else but stand at the patient's bedside and observe the interactions with the family while she also maintained the responsibility of watching the ventilator, watching his heart monitors, his tube feedings and his TPN.

Q. Doctor, if I understand your answer, then that's for the convenience of the hospital, There are other people who could be present so a nurse didn't have to stand by who could watch each and every action of the mother, aren't there?

A. Yes, In fact, I think that's most appropriate that a medical care giver has to be present because we did not have specific diagnoses of what could have been happening that she could have been doing and which areas we needed to be watching, and so someone who medically knew what was appropriate and not appropriate medical intervention or attention paid by the mother to the child had to be present. In general, parents are completely separated in these cases and not allowed any interaction, and I think -- I want to reemphasize the point that we contacted Mrs. Patrick, we contacted DCS and said because this child is more ill and may not live through this last round of infections that we wanted the family to be able to come and visit, And that was the situation which we felt like the child would remain safe.

Q. You called Ms. Patrick in Memphis, Tennessee, knowing that she was in Nashville, Tennessee, didn't you, sir? That's what --

A. I did not.

Q. -- you logged in your chart.

A. The intensive care physician did call and the intensive care --

Q. In Memphis, Tennessee --

THE COURT: Wait a minute, Counselor, and let him answer your question.

THE WITNESS: The intensive care physician who called did not have other phone numbers to reach the mother at that point, She did call, left a message on the machine, When I came in that morning, I found the cellular phone number. I tried calling on the cellular phone number, as I told Mrs. Patrick, several times to tell her that he had been put on the ventilator, and each time I got a recording that said this phone is not working at this time, And then at approximately 10:00 she called into the unit where I had instructed them if she called in to page me immediately so that I could talk to her and explain to her what had happened,

BY MR. FRIEDMAN:

Q. I have one further line of inquiry and it's going to be short. You told the Court that although the child in many respects in separation of the mother his condition, his medical condition has worsened, you said there was one way it had bettered, You said that was his irritability -- he wasn't as irritable. I think that was your term, Is that correct, sir?

A. There were two ways, the irritability and the lack of explosive diarrhea.

Q. Let's talk about the irritability as to the irritability factor, Doctor, Does the sedation or changes in sedation affect the irritability factor, yes or no, sir?

A. Yes.

Q. Are you not aware, sir, that pursuant to your orders the sedation was increased during the period of time since separation from the mother, yes or no, sir?

A. I didn't understand the first part of the question.

Q. You increased the amount of sedation this child was getting, yes or no, sir?

A. The intensive care unit, yes.

Q. In fact, you also included a further form of sedation that was not being used, a new form -- it's not new by any means. It was new to the medical treatment of this child -- after separation of the mother to keep him sedated, did you not?

A. On the ventilator, To be able to maintain him on the ventilator, yes, Not prior to his being placed on the ventilator.

Q. If one utilizes Morphine, which was the choice, correct, Doctor? That was used -- do you want to look at your charts? Maybe I'm mistaken.

A. I do not have the orders with me, Your Honor, so I'm not certain that Morphine was ordered. The predominant sedative that has been used for him has been Ativan and chloral hydrate,

Q. Let me see if I don't have the medical records for you, sir, and you can take a look.

THE COURT: Counselor, and the relevance of this is that you believe the doctor's statement that irritability had decreased is related to the fact the sedation was increased. Is that the point?

MR. FRIEDMAN: Yes, ma'am, and there's such --

THE COURT: Doctor, can you comment on that?

THE WITNESS: The irritability decreased immediately before we began sedation for his -- following his intubation. And, as I had told the parents on the telephone before, Phillip is not so sedated that he cannot respond appropriately, he wakes up, he smiles, he looks around at the care givers. Last night I was at his bedside after leaving here. He was awake enough from his sedation to look at me, to hold my hand, to smile at me at that point, So he is not snowed, or completely sedated where he's unresponsive.

MR. FRIEDMAN: I think my question was, Judge, if utilizing more sedation and, in fact, introducing a new type of sedation would have any effect, positive or negative, on what the doctor called his irritability, which is one improvement he says the child made. That was my question, I don't understand the answer, if there has been one.

THE COURT: Does the increase -- I understand he is not overly sedated and is responding. Does, in fact, if the amount of sedative was increased, does that have any impact, positive or negative, on irritability?

THE WITNESS: It would have a positive effect on decreasing irritability, yes, Your Honor,

THE COURT: So there's some thought that that may also have helped him in the decreased irritability?

THE WITNESS: Yes.

THE COURT: And the answer originally was that his irritability decreased immediately before you had increased the sedative.

THE WITNESS: Yes.

MR. FRIEDMAN: Let me ask this -

MS. LUSTER: Your Honor, again noting the time B

Q. I'll ask you, please, sir, is it not true that after separation, a brief separation from the mother, if there is not marked improvement in the child, much less if there is deterioration in a child, the literature says to put the mother back with the child, It shows that that's a negative consideration for Munchausen's Syndrome by Proxy, doesn't it, yes or no, sir?

A. Yes.

MR. FRIEDMAN: I have no further questions.

THE COURT: Ms. Miller.

CROSS-EXAMINATION

QUESTIONS BY MS. MILLER:

Q. To follow up on counsel's last question, does the literature not also say, though, Doctor, that if the child has become permanently impaired that even with the separation the child may not recover?

A. Yes.

Q. What was Phillip Patrick's condition on 9-6-96?

A. He was on -- getting nasal oxygen and getting oxygen under a hood, His oxygen requirements had been increasing over the three days prior to the 6th of September, and he was placed under an oxygen hood to increase the concentration of oxygen that was available in the air that he was breathing, He was febrile, or had a fever, intermittently and was -- had a very -- in fact, had high fevers off and on and was still being treated for infection, for the multiple organism infection.

Q. He's still in pediatric ICU?

A. He's still in the pediatric intensive care unit.

Q. Is his condition still grave at this point?

A. Yes.

Q. What is his prognosis?

A. Currently or what was --

Q. What was his prognosis on 9-6 and what is his prognosis today, sir?

A. It is still grave. I thought that the one aspect of improvement with him was that we weren't, at that point, any longer growing out the yeast infection in his bloodstream. That was the first sort of sign of positive improvement, that the bacterial organisms were not growing any longer,

THE COURT: Doctor, let me stop you. I want to be sure I understand. Between September 6th when the contact was stopped and September the 18th, today and last night when you saw the child, the one positive change was he was no longer growing a yeast infection out of his blood, Is that correct?

THE WITNESS: Or any of the other bacteria that had contaminated -- when he had the four organisms growing out of his bloodstream.

THE COURT: So that the last lab test testing for those two factors showed that was no long occurring?

THE WITNESS: Yes,

THE COURT: Anything else?

THE WITNESS: As for his improvement or

THE COURT: Yes,

THE WITNESS: Again, only --

THE COURT: A change, any change.

THE WITNESS: He was placed on the ventilator, as we talked about before, the deterioration in his breathing condition as part of his overall infection and lung disease and intestinal disease that he had or has, continues. He has, over the past two days, developed some blood in his urine indicating that there's some renal involvement or kidney involvement with this, which could either have been from the infection itself or from toxicity to the kidneys,

BY MS. MILLER:

Q. Phillip Patrick's condition is still very tenuous at this point, Would you agree with that?

A. Yes.

Q. If the mother were to have access to the child, what specific risks would she pose to the child?

A. It would depend upon the amount of access that she had, If she was not to have physical contact, then she would not pose any physical -- any risk to him, If -- and I can't say beyond that, There -- it totally would depend on whether or not someone was able to control the central lines and prevent her from having access to those, to prevent her from having access to the gastrostomy tube site, which are the two sources of entry to him from the outside.

Q. The visitation contract, agreement, whatever, is this still your recommendation to the Court for visitation?

THE COURT: I don't think we've

established that he's even aware of it. This is the Department's evaluation. Why don't you hand that to him, which he doesn't have. The question, Doctor, I want you to address is that this says visits will last 15 minutes. How many times a day were you - I know the problem with the nursing staff. I don't know if Mr. and Mrs. Patrick provided the funds to hire another nurse to be available. At this point, the proof has been presented and there's a reasonable belief that your diagnosis is correct and a reasonable belief that there must be great care taking to have no contact. So I also know this child is attached to his mother. I don't think there's any question about that and that he benefits from seeing her if she can have no physical contact. But I'm trying to think of a way that we can do that between now and four weeks from now when we have the trial.

BY MS. MILLER:

Q, May I ask you, too, the other issue is the father, too, So I think if we can let the Doctor address whether the father can visit separately. My question is what specific risk does the father present and would these guidelines be for both parents?

MR. FRIEDMAN: Your Honor, I must interpose an objection. The purpose of cross-examination is to explore matters that were raised on direct examination, not to go beyond.

THE COURT: You're not asking for any visits? Do you want Mr. and Ms. Patrick treated the same?

MR. FRIEDMAN: No. ma'am. In fact, the question about the father goes to the heart of the initial petition filed before and pending before this court.

THE COURT: It hasn't been raised yet by counsel, I appreciate the guardian raising it. You may answer the question.

THE WITNESS: In general the literature says that the father is usually a very passive participant in Munchausen's Syndrome by Proxy, either not directly involved or passively aware that something is wrong but does not explore to find out what it is that is wrong, I don't know what specific threat that he would pose in visitation.

BY MS. MILLER:

Q. Based upon your knowledge of Munchausen's Syndrome by Proxy and the literature, what would be your recommendation to this Court regarding visitation by the father?

A. Again, that he would have no physical contact.

THE COURT: Doctor, back to my question of the 15 minutes, was that intended or was that discussed with you whether or not that would be once a day or whether that would be more than once a day?

THE WITNESS: The pediatric intensive care nurses, again, indicated that they could do that once a day and provide attendance, so that the specific number of times a day were predicated on the ability to have a constant medical observant,

THE COURT: Do the pediatric ICU nurses stay on for a 24-hour shift now, or how does that work?

THE WITNESS: No. They are there between eight and twelve hours. Some of them work 8-hour shifts; some of them work 12-hour shifts,

THE COURT: Do you have a time of the day that you feel you have more qualified staff or more able staff to provide the supervision based on the operation of the ICU?

THE WITNESS: I think that the DCS workers were discussing that with the nursing supervisors and came -- that's why the initial visits were scheduled for late morning. It's after the change of shift and the majority of the medications that are on time schedules are given.

THE COURT: Is that at 11:00?

THE WITNESS: Between 10:00 and 11:00.

THE COURT: That's all I need, Ms. Miller?

MS. MILLER: There's just one final question on visitation.

BY MS, MILLER:

Q. It has been offered that friends of the family or other family members would supervise these visits, Is that something that you would -- can you make a statement about -- or take a position about that?

A. I don't know the friends of the family. I would assume they would be very supportive in not believing this diagnosis of Munchausen's Syndrome by Proxy, so I do not feel that they would be adequate supervisors.

Q. Does the literature speak to that issue as to whether --

A. The literature speaks to the issue of specifically removing the child from the parent with no visitation, and it talks about the poor success rate of reintroducing a child into the family but it does not address issues of whether or not friends of families can supervise.

MR. FRIEDMAN: Your Honor, just for the record, can we know what literature he's talking about so he can be cross-examined at the trial? I would ask that the Court ask him to provide specifically for his literature,

THE COURT: You can do any sort of discovery you want to do. He's been qualified as an expert, He's the only expert I have that's been presented to deal with these issues, and I -- no, the answer. Go ahead,

MS. MILLER: That's all my questions, Thank you.

THE COURT: Any redirect? Just what has to be asked.

REDIRECT EXAMINATION

QUESTIONS BY MS, LUSTER:

Q. Just very briefly, Doctor, You talked yesterday and you were cross-examined by counsel a little bit about this chromium that you found in, I believe, the urine. Is that correct?

A. Yes.

Q. Could you tell the Court, I believe you've had a chance now to review that a little more thoroughly?

A. Yes,

Q. What have you found and what opinions can you draw with regard to that?

A. I had the opportunity after leaving to go back to my office and reread about chromium and to go to the library and then too we've had a little bit more reporting on the chromium levels. Maybe I should start with that, The normal levels of chromium expressed in the urine are about two micrograms per liter of urine. His levels are 21 micrograms per liter of urine, So they're 10 times the normal level expressed n the urine. I pursued whether or not total parenteral nutrition when the trace elements are given is a source of elevated chromium in the urine, It is not.

I then began to investigate where the trace elements come from that are administered to patients at Vanderbilt, All of the formulas, the total parenteral nutrition formulas, again, this is what he receives through the central line, are prepared by an outside facility using a computerized system that's quality assured every day to ensure it's delivering the correct amount of chromium. As a consequence, that means every patient in Vanderbilt Hospital is receiving -- that's receiving TPN is receiving the same TPN and there have been no other reported cases of chromium toxicity in the hospital.

Chromium toxicity specifically affects the intestine, It causes an intestinal and colon inflammation, hemorrhage, loss of the lining of the intestine, It also causes renal damage and can put a patient into shock, make them have difficulty maintaining their blood fluid levels and require ventilatory support as a consequence. Chromium is available as a liquid preparation over the counter from drug stores as well as from health food stores that can be provided by the gastrointestinal route.

They have checked his sample four times now because the level was so inordinately high, and they've checked it by the two gold standard methods, one of which is called atomic absorption spectroscopy. The other is called ICP, and I do not know what that stands for, Your Honor, I'm sorry. When the amount of chromium present in his urine was compared to his urine function, the normal range for that is from 0 to 4.9. There's a protein that's called creatinine that's followed in the urine, and his level related to his creatinine was 144. So it's more than 30 times the normal. So he clearly has chromium poisoning and chromium toxicity and meets the requirements for that additional medical diagnosis.

Q. Doctor, is that diagnosis -- oh, I'm sorry, Your Honor,

THE COURT: When did you first start doing -- when did you first suspect chromium poisoning?

THE WITNESS: The urine sample was obtained with a toxicology consult immediately after DCS took custody of the patient, of Phillip. A follow-up urine is being performed today to make sure that he is, in fact, now decreasing his levels expressed through his urine.

THE COURT: Is chromium poisoning or toxicity built up over a period of time or is it something that dissipates -THE WITNESS: It's predominantly excreted in the urine very rapidly.

BY MS. LUSTER:

Q. Is chromium something you can test for routinely in the blood work?

A. No.

Q. Doctor, is what you've talked about in terms of chromium toxicity and the effects of that, is that consistent with what you've observed in Phillip Patrick's condition?

A. It's consistent with his intestinal disease that he currently has as far as loss of the lining of his intestine and the bloody explosive stools that he has had in the past. It's also consistent with the potential renal damage that he has now and the source for developing the shock-like syndrome that he has gone through that ultimately put him on the ventilator.

Q. Doctor, are you aware of any items that have been found in the room that was occupied by Ms. Patrick that are being investigated that are possibly related to this?

A. There were --

MR. FRIEDMAN: Your Honor, I certainly on this, I hope this is what you saw and observed, not what he was told.

THE COURT: Ms. Luster, if you will ask a preliminary question as to his personal knowledge.

BY MS. LUSTER:

Q. Do you have personal knowledge of any items that have been found in the room that was occupied by Mrs. Patrick?

A. That I have personally seen?

Q. Yes,

THE COURT: Why don't you tell me how you're aware of the items that were found? Don't tell me what they were yet. Just tell me how you're aware.

THE WITNESS: One group of items I saw personally at his bedside.

THE COURT: Why don't you tell me those.

THE WITNESS: Okay. There was a medication called Mylicon. It's a medicine that is routinely used for gas bloating and it's used in children not very successfully and it's used in adults not very successfully in preparations such as Maalox or Mylanta. On the day that I came in to take care of Phillip, there was Mylicon in his gastrostomy tube. I then could not find where Mylicon had been ordered in the chart and went to the nurses that had been caring for him and asked them if the had put -- my first concern was that there was blood in the gastrostomy tube because Mylicon is red and pink and I asked the nurse to test his gastrostomy secretions for blood. And she tested it and said, no, there was not. I said, Well, what medicines is he on that are red? And we went through all of his medicines and he was not on any medication put through his gastrostomy tube that was red in color. And the nurse's comment to me, Well, it could be some of the medicines that his mother has at the head of his bed that I've been told she gives to him.

So I went and looked at the head of the bed and there was a plastic container, a hospital basin, in fact, that had several medications in it, most of which were topical medications either for a diaper rash or ophthalmic medications, eye drops that were present. And the final thing was the Mylicon bottle. I picked up the Mylicon bottle because I had not personally ever prescribed the use of Mylicon and to look and see if it was red. I opened the bottle. It was nearly full and it was, in fact, the same material that was in his gastrostomy tube.

MR. FRIEDMAN: What date was that? Did I hear the 8th of September?

THE COURT: The 8th.

MR. FRIEDMAN: Okay.

THE WITNESS: So the medicine had been removed from the unit, according to the nurse, by Mrs. Patrick and then has reappeared in the unit. And when I questioned the nurse, Was this here Saturday? She said, Yes, and I said, Was it still here from Friday? And she said, Yes, that it had been here at least through Friday the 6th of September, but it's not clear to anyone when it returned, and no nurse seems to be aware of the mother bringing it back, Mrs. Patrick bringing it back into the intensive care unit.

BY MS. LUSTER:

Q. Now, Doctor, how were you aware and, again, without yet saying what other items were found, how are you aware of other items being found in the room of Mrs. Patrick?

MR. FRIEDMAN: Your Honor does realize, and I think I know what the Court's going to rule, but this redirect examination is far beyond matters touched upon or considered in cross-examination of either counsel. That is -- I do object.

THE COURT: Ms, Luster, do you want to respond?

MS. LUSTER: Well, Your Honor, it goes to the issue of chromium which was gone into in great detail by opposing counsel, both with Dr. Polk and with Dr. Khoshoo, his own expert, in terms of its coming in through the TPN and what I believe the evidence will show is that there were items found in Ms, Patrick's room that could have been utilized to insert or inject the chromium into Phillip Patrick as an alternate method.

MR. FRIEDMAN: Your Honor, it certainly wasn't Ms. Patrick's room on September the l0th, which was four days after this child was taken and moved to another bay, and I think counsel's saying Ms. Patrick's room,

MS LUSTER: I said the room she had occupied, Your Honor.

MR. FRIEDMAN: She never occupied that bed.

THE COURT: Counselor, I understand.

THE WITNESS: Yes.

THE COURT: Thank you, Do you have any other questions?

MS. LUSTER: Just one final.

BY MS. LUSTER;

Q. Doctor, you were asked also about the mother's interactions and there's been some testimony about how she's behaved as an adoring, caring mother, very concerned for her child. Are you aware of incidents in which she's behaved in a way that would not be considered caring for the child?

MR. FRIEDMAN: Your Honor please, again, that would take a matter of interpretation. At the hearing this was not raised on --

THE COURT: Your objection is this witness is not qualified?

MR. FRIEDMAN: Yes, ma'am.

THE COURT: Overruled,

MR. FRIEDMAN: I only ask then you limit it to what he saw and observed, not his interpretation of records or somebody else told him.

THE COURT: I think that was the question. Let him answer. Go ahead, Doctor.

THE WITNESS: This is not based on an interpretation of the record but is based on direct reading of the record.

MR. FRIEDMAN: Your Honor, that's the

THE COURT: Counselor, I'll rule after he's answered whether or not I'll give it any weight,

THE WITNESS: On July the 9th, the resident in noting her conversations with Mrs. Patrick noted that there was a "rough" night and that she had to use the rectal tube 10 times during the night to place in his rectum. That would be considered very inappropriate.

THE COURT: Doctor, if you can help me understand this rectal tube that I understand she was allowed to use. I mean, you didn't prohibit her from using it. The doctors didn't prohibit it. Exactly why would you use a rectal tube and tell me how it works. I guess I think I know but I need you to tell me.

THE WITNESS: Again, I am not sure why it was instituted in this patient. When Dr. Khoshoo called to speak to Mrs. Patrick and I talked with him, he told me that he had instituted it because he felt like it might help the patient defecate and said that he had evidence that it had helped him defecate. Mrs. Patrick indicated to the resident that it was mostly air that was expelled from his rectum in each of those occasions, the 10 times that she had used it that night.

THE COURT: I know you don't know why she chose to use it, I understand that, Is there any reason that you would prescribe or approve of a mother, father, anyone other than nursing personnel using a rectal tube while the child was in the hospital?

THE WITNESS: No.

THE COURT: Have you ever done that?

THE WITNESS: I have had nurses use a rectal tube before in a patient that we were trying to what's called clean out prior to being able to do an endoscopy, a colonoscopy,

THE COURT: Is there anytime you've prescribe that that be done just as a routine way to have feces come out of the body?

THE WITNESS: Only in this setting of trying to clean out --

THE COURT: For that purpose if there's a medical procedure that's about to occur?

THE WITNESS: Yes. Or a patient who is severely constipated and that route is used to do an initial clean-out of that constipation.

THE COURT: Doctor, I may have missed something, but all I've heard about is diarrhea. Was this child ever constipated and that was a problem that Vanderbilt was dealing with? Not way in the past, not with Dr. Khoshoo. But July, August and September, are there any notes that indicate he was constipated?

THE WITNESS: No.

BY MS. LUSTER:

Q. And, specifically, Doctor, with regard to any instances with blood in the rectum, any problems in that way in the use of a rectal tube?

A. He underwent a follow-up endoscopy at Vanderbilt and at that time --

Q. When was that?

A. It was on July the 10th. And after a rectal suction biopsy, which was a procedure where they take a small piece of the mucosa of the rectum, the lining of the rectum, to determine if nerve cells are present. After that, the resident was called to the room at Mrs. Patrick's insistent to the nurse because there was blood in the diaper. The resident noted that the blood was there after Mrs. Patrick had checked his temperature rectally. He had -- they -- the staff instruction was that he was not to have anything done per rectum during that time. The resident then explained to Mrs. Patrick that he was not supposed to have anything per rectum, and the resident documented that she then, again, after having been instructed not to check his temperature rectally, inserted the rectal thermometer into his rectum knowing that the potential again was there for bleeding.

Q. What date was that?

A. That was the 11th of July that's noted in the chart, the bleeding. And on the 20th of August, Mrs. Patrick called the nurse into the room with the introduction of: He doesn't look good this morning, And the nurse looked at him --

MR. FRIEDMAN: Your Honor, again, we're so far --

THE COURT: I'm going to allow him. It's reliable hearsay and I'm going to allow him to tell me what's in the record regarding this mother's interaction with the child, which is what your issue is on visitation.

MR. FRIEDMAN: Your Honor, he's describing only negative interaction. There's also tons of positive --

THE COURT: We will stipulate that there were positive interactions of this child with the mother, I have no question that there are positive interactions, no question at all.

MR. FRIEDMAN: As Your Honor sees fit. She called the nurse in the room: He does not look well.

THE WITNESS: He does not look well. The nurse looked at him and agreed that his fingertips were cyanotic was her documentation, which is blue, and that his lips as well were cyanotic. She felt him, thought he was cold, checked the temperature on him and he was, in fact, hypothermic, had a rectal temperature at this point of 97.2 This was normally 99 to 100. And looked and noted specifically that his mother had turned down his cooling blanket which was used when he was having fevers to 17 degrees, which is -- I don't know the exact Fahrenheit, Your Honor, but it's between 45 and 50 degrees, well below the constraints of using the cooling blanket, which are generally just below body temperature, which in his case would have been 37.6, so you would have expected it to be in the range of 35 if you were trying to cool a patient down, or just above that if you were trying to warm a patient up. Mrs. Patrick then turned the thermometer to -- upon the control to 40 degrees and the nurse noted that as, what she called an episodic event and was concerned about that.

BY MS, LUSTER:

Q. What would the equivalent of 40 degrees be, roughly, Doctor?

A. About a hundred and four to a hundred -between a hundred and four and a hundred and five.

MS. LUSTER: That's all I have at this time, Your Honor.

THE COURT: Is there any recross of this witness?

RECROSS-EXAMINATION

QUESTIONS BY MR. FRIEDMAN:

Q. This testimony you've just given about the cooling blanket, sir, do you know what the lowest setting that exists on the cooling blanket is?

A. I do not.

Q. The cooling blanket doesn't go to 17 degrees, I submit to you, Doctor.

MS, LUSTER: Objection,

THE COURT: Counsel --

MS. McCLURE: He is testifying.

MR. FRIEDMAN: I submitted to him and I asked him did he --

MS. McCLURE: His answer was no.

THE COURT: He's answered a question. He does not know how low it goes, Do you have another question?

MR. FRIEDMAN: Yes, I do.

BY MR. FRIEDMAN:

Q. If the cooling blanket doesn't have a setting to go to 17 degrees, the testimony that you just gave before this Court under oath is untrue, isn't it, Doctor?

A. No.

MS. McCLURE: Objection, Your Honor.

MS. LUSTER: Objection, Your Honor. He's testified from what the record stated and it's argumentative.

THE COURT: Just one of you needs to object.

MR. FRIEDMAN: I appreciate being double-teamed.

THE COURT: Counselor, it is proper for discovery, it absolutely is but not today. You asked if his statement is incorrect, and let's move on.

MS. FRIEDMAN: Yes, I won't say I didn't have my fishing pole out.

BY MR. FRIEDMAN:

Q. I will ask you this, please, sir, as to your testimony about chromium. Do you know the difference between hexavalent chromium and trivalent chromium? Is there a difference, sir?

A. There is a difference,

Q. Which type of chromium toxicity are you talking about?

A. It does not matter.

Q. It doesn't matter? So it could be either as far as you are concerned; correct?

A. Yes.

Q. I'll ask you, please, sir, do you know which of these types of toxicity would be found in foodstuff?

A. It would depend on if it was environmental exposure to the foodstuff or if it was coming from that health food source, from a health store with chromium medications.

Q. Do you have an opinion, sir, based on your best medical opinion and knowledge, as to whether or not malnutrition will affect chromium levels?

A. Yes.

Q. What is your best medical opinion to that, sir?

A. It has been documented in the literature that provision -- failure to provide chromium in TPN results in chromium deficiency and so you have low levels of excretion of chromium in the urine with malnutrition.

Q. So what does that mean about the chromium level in the body?

A. That means there's very little chromium in the body.

Q. So you're introducing chromium through the TPN, but the chromium is not being excreted. That means there's less chromium in the body, That's your testimony, Doctor?

A. I'm sorry, I'm not following you,

THE COURT: I'm not either, Counselor.

MR. FRIEDMAN: Your Honor please, my questions were based on nutrition, health and disease,

THE COURT: You can just re-ask him the question.

MR. FRIEDMAN: Okay.

BY MR. FRIEDMAN:

Q. I'll ask you, please, sir -- I think I asked you -- does malnutrition and use of the TPN have any effect on the amount or on the levels of chromium that one would expect to find? Do you understand my question?

A. It does not raise them out of normal. No, it does not affect it,

Q. Okay,

A. A patient who is malnourished you would not expect to see chromium in the urine. A patient who is well nourished, you would expect to see the levels that I testified between .1 and .2 micrograms per liter.

THE COURT: Doctor, again, I'm the one that needs to understand this. In a child who is malnourished, you would not expect to see the normal levels of chromium you testified to. Did I understand that correctly?

THE WITNESS: Yes, They would be below normal.

THE COURT: And his is way above normal and he is malnourished. All right.

BY MR. FRIEDMAN:

Q. Isn't that why you add chromium to the TPN because you expect lower chromium?

A, Yes,

Q. Aren't you adding chromium to the TPN of this child, sir, for just that reason?

A. Yes.

Q. I'll ask you, please, sir, do you know the amount of chromium content that's being added per day?

A. He gets .7 micrograms of chromium per day, 0,7 micrograms, That works out to a little bit less than ,01 micrograms per kilogram per body weight per day.

Q. You do not deny that chromium is a normal contaminate of TPN solution, do you? A normal contaminant, sir.

MS. LUSTER: Your Honor, he's already testified it was specifically added.

THE COURT: He has testified -

MR. FRIEDMAN: I didn't say "specifically added"; I said a "contaminant." There's a difference.

MS. McCLURE: Objection to the characterization, I believe chromium's a necessary substance in the TPN, not a contaminant.

THE COURT: Well, I understand that it is a necessary substance from what Dr. Polk has said.

MR. FRIEDMAN: I said a normal contaminant.

THE COURT: And, Doctor, can you respond to --

THE WITNESS: When chrom -- prior to the addition, it is not. Prior to the addition of chromium to TPN substances, the first three reported cases of chromium deficiency were of patients who were on total parenteral nutrition that did not have chromium added. So there was not enough chromium in the TPN to actually provide enough chromium for them to have any and they became deficient.

BY MR. FRIEDMAN:

Q. Please, sir, based on the best of your medical opinion, is it not recommended that chromium levels be monitored during long-term TPN use?

A. Chromium levels by blood measurement are routinely notorious and are not recommended for being monitored.

Q. So your answer is no.

A. No.

Q. So you have no monitoring, according to you, of chromium levels in this child prior to September 6. Is that correct or is that false?

A. That's correct,

Q. So we don't know what the chromium level was before then?

A. That's correct.

Q. And it is your testimony that it is not recommended in medical literature that levels of chromium, other metals, be monitored during long-term TPN use. That is your medical study?

A. You said other metals this time.

Q. Let me take away the other metals, Chromium.

A. Chromium, that's correct. There is no recommendation for blood monitoring of chromium levels at his time in pediatric patients on TPN.

Q. Let me ask you if these conditions will lead to increased chromium in the urine. Physical injury, will that led to increased levels of chromium?

A. I do not know.

Q. Strenuous exercise, will that lead to increased --

MS. LUSTER: Objection, Your Honor.

MS, McCLURE: We are way beyond the scope of redirect.

THE COURT: Is there anything else?

MR. FRIEDMAN: Your Honor, please, I think that's -- give me a moment of the Court's indulgence then. But I do say this most respectfully to the Court. The Court afforded counsel wide latitude on -- and I'm on recross, not redirect, This is not my witness.

THE COURT: And you have just gone through your questions regarding chromium. Are there any questions, other questions, on chromium?

MR. FRIEDMAN: If I might have a moment of the Court's indulgence. (Pause) That's all I have of this physician.

MS. McCLURE: Just a minute, Your Honor.

MS. MILLER: Your Honor, I believe there was a modification made by the Court that Vanderbilt would provide a daily memo because there's no access to chart records.

MS. McCLURE: This is our proposal for visitation while the child's in the pediatric intensive care unit.

THE COURT: And if the child gets out of the pediatric intensive care unit, then there will be a different proposal?

MS. McCLURE: Yes, ma'am.

THE COURT: Is that correct?

MS. McCLURE: Yes, ma'am.

THE COURT: Hopefully, that will be worked out between counsel and the medical personnel.

MS, McCLURE: Yes, ma'am.

MR. FRIEDMAN: Your Honor, I presume Your Honor's going to make a finding, perhaps she has, before we discuss our positions in regard to this.

THE COURT: I'm not going to -- I'm going to rule on the preliminary hearing and the way I'm going to rule is based on the testimony of Dr. Polk who is qualified as an expert and has cared for this child, and along with his practice and his colleagues at Vanderbilt who cared for this child from July the lst, I'm going to find -- and Ms, Luster, you and Ms, McClure draw the order.

I'm going to find that the expert testimony provided establishes there is a reasonable belief that this mother is suffering from the syndrome called Munchausen by Proxy Syndrome and therefore this child is in danger and imminent harm, that the testimony presented thus far provided a reasonable belief that the mother and the father pose a danger to this child.

And at this point, the standard, of course, is not clear and convincing evidence, I have certainly not found anything by clear and convincing evidence. I will consider all of the evidence and the proof at trial and make that decision.

The guidelines proposed by the Department in consultation with Dr. Polk and Vanderbilt physicians are very specific. They are to stay in effect only while the child is in intensive care. If he gets out of intensive care, I would expect an immediate meeting of counsel, the parents, the Department and Dr. Polk to determine if these can be liberalized, if there is a way to have more contact. The addition to these guidelines will be what the Court has stated prior, that there will be a memo, letter, statement made to the mother and father each day that indicates more detail than just he's doing fine. The trial of this matter is scheduled in October, October the 22nd, the afternoon of the 23rd and the 24th, I want counsel to stay for a pretrial conference for a few minutes when everyone else is gone. We may need another one, If we do, we'll have that prior to trial.

MS. McCLURE: Your Honor, at this time, I need to make a motion that we continue -that we change the trial dates. I've been informed by Dr. Starling that she is not able to testify on those days. I think the Court is well aware that based on the length of the cross-examination, this case is going to take more than three days,

THE COURT: No. No. it isn't. We can work out a way to --

MR. FRIEDMAN: Your Honor MS. McCLURE: The only way

MR. FRIEDMAN: Your Honor, may I be --

THE COURT: Ms, McClure, I'm not going to argue part of my bases of the decision and this is going to be set for early trial. Dr. Starling may have to be taken by deposition, and we'll work that out. I'm not going to continue it for that reason. Is there any other reason you're asking for a continuance?

MS. McCLURE: Yes, Two weeks ago, Dr. Polk asked for the records from LeBonheur Children's Hospital. They're still not here.

THE COURT: We'll get them here. We're going to do all that in pretrial conference in just a minute.

MS, McCLURE: To manage this case, and maybe we should save this for pretrial conference. To be able to manage this case, a lot of the testimony --

THE COURT: Anything about the case will be done at pretrial conference.

MS, McCLURE: Okay.

MR. FRIEDMAN: Your Honor, I do want to ask if the Court is -- before it agrees to this restrictive schedule that's been -THE COURT: I'm not agreeing. I'm setting it.

MR. FRIEDMAN: Well, I'm asking if the Court is going to give us an opportunity to propose some reasonable alternatives that might be available to the --

THE COURT: You've had every opportunity to present your proof, I asked if there were any other witnesses. You said there were no other witnesses. Is that correct?

MR. FRIEDMAN: Your Honor please, that is correct. I don't think it requires proof to discuss with Your Honor other reasonable alternatives.

THE COURT: If there is an agreement between the counsel, I will be happy to

modify this just as there is an agreement. I have completed the preliminary hearing which discussed -- for the purpose of putting an order in place until the trial. I've ruled. That's the end of the decision. We'll go forward with the pretrial conference. Everyone will step out except the lawyers.

THE COURT: I'll set it at pretrial conference. The plan of care is probably the least of the issues,

(WHEREUPON, Judge Walker marked Exhibits No, 2 through 15 and they were retained by the Court and Court was adjourned as to the preliminary hearing.)