1 1 IN THE CIRCUIT COURT FOR SMITH COUNTY, KANSAS 2 ----------------------------------x 3 JANE DOE, : 4 Plaintiff, : 5 v. : Case No.: 6 THE UNION HOSPITAL, INC., : 07-C-11-000000 7 et al., : FULL VERSION 8 Defendants. : 9 ----------------------------------x 10 11 CONTAINS CONFIDENTIAL INFORMATION 12 13 Deposition of MARGARET SMITH, RN, BSN 14 Elkton, Maryland 15 Tuesday, January 28, 2014 16 8:03 a.m. 17 18 19 20 21 22 23 Job No.: 11111 24 Pages: 1 - 41 25 Reported by: Jane Smith, RPR 2 1 Deposition of MARGARET SMITH, RN, BSN, held at 2 the offices of: 3 4 5 THE UNION HOSPITAL 6 100 Main Street 7 Baltimore, Maryland 99999 8 (555) 555-1212 9 10 11 12 13 Pursuant to agreement, before Jane Smith, 14 Notary Public in and for the State of Maryland. 15 16 17 18 19 20 21 22 23 24 25 3 1 A P P E A R A N C E S 2 3 ON BEHALF OF THE PLAINTIFF, JANE DOE: 4 SUSAN B. ANTHONY, ESQUIRE 5 ANTHONY & ANTHONY 6 1000 Main Street 7 Suite 500 8 Baltimore, Maryland 22222 9 (410) 555-1212 10 11 ON BEHALF OF THE DEFENDANT, THE UNION HOSPITAL, 12 INC.: 13 KATHY I. WATSON, ESQUIRE 14 WATSON & WATSON 15 1000 1st Street, NW 16 Suite 800 17 Washington, DC 20036 18 (202) 555-1212 19 20 21 22 23 24 25 4 1 A P P E A R A N C E S C O N T I N U E D 2 3 ON BEHALF OF THE DEFENDANT, DR. FRANKENSTEIN: 4 ROSE D. FLOWER, ESQUIRE 5 FLOWER & FLOWER 6 100 West Street 7 Baltimore, Maryland 22222 8 (410) 555-1313 9 (Present via telephone) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 1 C O N T E N T S 2 EXAMINATION OF MARGARET SMITH, RN, BSN PAGE 3 By Ms. Anthony 6 4 By Ms. Flower 37 5 6 7 E X H I B I T S 8 (Retained by counsel) 9 SMITH DEPOSITION EXHIBIT PAGE 10 Exhibit 1 Ms. Smith's Curriculum Vitae 7 11 Exhibit 2 Recall Notice 23 12 Exhibit 3 Recall return communication 24 13 Exhibit 4 Manage OR Bookings document 24 14 Exhibit 5 Pick List 28 15 Exhibit 6 Pick List 30 16 17 18 CONFIDENTIAL PORTIONS: 19 8:20 - 8:23 20 10:10 - 10:11 21 22 23 24 25 6 1 P R O C E E D I N G S 2 Whereupon, 3 MARGARET SMITH, RN, BSN, 4 being first duly sworn or affirmed to testify to the 5 truth, the whole truth, and nothing but the truth, 6 was examined and testified as follows: 7 EXAMINATION BY COUNSEL FOR THE PLAINTIFF 8 BY MS. ANTHONY: 9 Q Good morning, Ms. Smith. 10 A Good morning. 11 Q My name is Susan Anthony. I represent 12 the Plaintiff, Jane Doe, in the lawsuit that was 13 brought against The Union Hospital and 14 Dr. Frankenstein. Do you understand that? 15 A Yes. 16 Q I'll be asking you a series of questions 17 this morning. If at any time you don't understand 18 my question, tell me that and I will rephrase so 19 that you and I understand each other. Do you 20 understand that? 21 A Yes. 22 Q If an answer to a question is yes or no, 23 it's best to say yes or no rather than um-hum, 24 huh-uh, uh-huh, because that gets a bit garbled in 25 the written transcript. Do you understand that? 7 1 A Yes. 2 Q If you go ahead and answer a question, 3 I'm going to assume that you've understood it. So, 4 again, if for whatever reason you stop listening, or 5 didn't understand the question, or need it repeated 6 or rephrased, just let me know. Okay? 7 A Okay. 8 Q It's important that you and I not speak 9 over each other, so even if you're anticipating what 10 the end of my question is, it's best to let me 11 finish my question. Do you understand that? 12 A Yes. 13 Q Any questions about the process as you 14 sit here right now? 15 A No. 16 Q All right. Ms. Watson has given me a 17 copy of your CV which we will mark as Exhibit 1. 18 (Smith Deposition Exhibit 1 was marked 19 for identification and retained by counsel.) 20 Q Is this an up-to-date CV? 21 A It is. 22 MS. WATSON: Well, take a look at it 23 because I don't remember when you gave that to me. 24 It probably is but -- 25 THE WITNESS: Yeah, this is the one I 8 1 sent just the other day. 2 MS. WATSON: Did you send it just the 3 other day? I don't know. Okay. 4 THE WITNESS: Um-hum. 5 BY MS. ANTHONY: 6 Q Well, let me ask -- first of all, I 7 guess, are you still the clinical director of the 8 California Surgery Center? 9 A I am, yes. Yeah, this is the most 10 current one. 11 Q Okay. Good. 12 Can you give me your name and your 13 business and home address, please? 14 MS. WATSON: I object. This is 15 Confidential Pursuant to Protective Order. We must 16 designate this as confidential. 17 (The following portion from 8:20 to 8:23 18 was designated Confidential Pursuant to Protective 19 Order.) 20 A Margaret Smith. My home address is 800 21 Mason Lane, Rising Sun, Maryland 21911. 22 My work address is 300 East Pulaski 23 Highway, Suite 108, Elkton, Maryland 21921. 24 (This concludes the Confidential Pursuant 25 to Protective Order portion.) 9 1 Q And how old are you? 2 A 44 -- 5 -- isn't that terrible that you 3 have to stop and think about how old you are? 4 MS. WATSON: You do not look 45. 5 THE WITNESS: 45, yes. I turned 45 last 6 October. 7 Thank you, by the way. 8 MS. WATSON: You're welcome. 9 (An off-the-record discussion was had at 10 approximately 8:05 a.m.) 11 Q So on your CV at the end it tells me 12 about your education. It looks like you got your 13 associate's degree in nursing in 1989. And that 14 would have then qualified you to be a registered 15 nurse; is that right? 16 A Correct, yes. 17 Q So that was a two-year program, I assume? 18 A Correct. Um-hum. 19 Q All right. And then you went on to get 20 your bachelor's in nursing in December of 2011, 21 correct? 22 A Correct. Um-hum. 23 Q Where is Immaculata, Pennsylvania? 24 A It's about an hour north of here. The 25 Union Hospital brought them in and offered a 10 1 scholarship program when I worked here. So that's 2 how I became connected with them. 3 Q Okay. And then it looks like you're now 4 in a master's program; is that right? 5 A Correct. 6 Q And do you have any sense of when you're 7 going to complete that master's program? 8 (The following portion from 10:10 to 9 10:11 has been designated as Confidential.) 10 A I'm hoping spring/summer of 2015. But 11 it's not set in stone. 12 (This concludes the Confidential 13 portion.) 14 Q All right. And I take it you're getting 15 your bachelor's degree and working on your master's 16 while you're working full time as a nurse; is that 17 right? 18 A Correct. Yes. Um-hum. 19 Q And taking a quick look at your various 20 jobs over the years, it looks like -- unless I've 21 missed something, and I well might have -- that 22 there was a gap between January 2006 and May of 2008 23 when you weren't working as a nurse. Is that 24 accurate? Or not? 25 A No, that's -- 11 1 Q Okay. So I've messed this up somehow. 2 Looking at page 3 where you've got 3 May 2008 to August 2010; and then looking at page 4 4 where you've got, at Christiana Care November 2004 5 to January 2006, that's what I was looking at. It 6 looked like there was a gap there. 7 A Yeah. The dates must be wrong because 8 there was no gap in my -- I've worked consistently 9 since I worked at Christiana. That should be 10 January -- gosh -- this is why I have a CV, so I 11 don't have to stop and think about it. 12 Yeah, because I came from Christiana 13 right to Union Hospital. 14 Q Okay. And did you come to Union Hospital 15 in May of 2008, or did you come before that, do you 16 think? 17 A No, I came before that. There was no -- 18 there was no gap. So I'm trying to -- I left there 19 in January -- I mean, I was only off work like one 20 week. Like I took a week off and then I started, so 21 I've got a typo. 22 Q Okay. That's fine. 23 So then it looks like you probably came 24 to Union Hospital somewhere in January or February 25 of 2006? 12 1 A Yeah, that's correct. 2 MS. WATSON: 2006? Or you mean -- oh, 3 right, sorry. 4 A Yeah. 5 Q Okay. 6 A Yeah. 7 Q And did you go right in to the job of 8 perioperative charge nurse at Union Hospital? 9 A No, I started as a staff nurse and then 10 was elevated to charge nurse. 11 Q All right. So maybe that's what's 12 missing is just sort of the little time as a staff 13 nurse? 14 A Maybe that's what has got omitted is the 15 time I was a staff nurse. 16 Q Right. Do you believe you became the 17 perioperative charge nurse in May of 2008; does that 18 sound about right? 19 A I couldn't put a date on it, to be honest 20 with you, because my memory is not that good. 21 Q Okay. Well, let me ask it this way: How 22 long do you think you were working at Union Hospital 23 as a staff nurse before you got elevated to the 24 perioperative charge nurse position? 25 A It was a solid year, maybe a year and a 13 1 half before I was the charge nurse. So that would 2 account for that time. It looks like that piece 3 about the staff nurse has gotten omitted on my CV, 4 because I would have put that information in there 5 after the Christiana Care. 6 Q Right. 7 A And then I went and put the charge nurse 8 responsibilities. So that's what's happened is it's 9 gotten omitted, so -- copy and pasting -- 10 Q Sure. 11 MS. WATSON: Things fall off. 12 A Yeah. 13 Q Now, you say that you got your 14 certification as a certified nurse in the operating 15 room -- or of the operating room. When did you get 16 that? 17 A This is 2014 -- I got it in 2009 because 18 it's a five-year certification. So it expires this 19 year and I'm re-certifying. I'm in the process of 20 re-certifying. 21 Q Okay. And to get certified in that, what 22 did you do? 23 A You have to have worked within the 24 perioperative setting for two consecutive years. 25 And you have to sit for an exam to -- it crosses a 14 1 span of all the spectrums of the dynamics of the 2 operating room from anesthesia to postoperative 3 care. And then you're certified for five years, and 4 then you have to re-certify every five years with 5 CEUs and work history. 6 Q Okay. And have you been working in the 7 OR, at least off and on, since you got out of 8 nursing school? 9 A Yes. There was a brief time when I did 10 some home health nursing for just a couple of 11 months. I don't even have it on my CV. But, yeah, 12 I've been in the operating room -- 13 Q Okay. 14 A -- the bulk of my career. 15 Q So I take it that when you became the 16 perioperative charge nurse, that was a promotion? 17 A Correct. 18 Q And then it looks like from that position 19 you then, in August of 2010, went to the clinical 20 coordinator of interventional radiology. What 21 caused you to make that move? 22 A It also was a growth movement. It was 23 more responsibility to grow myself professionally. 24 And I love vascular, and so it was a chance for me 25 to do some growth opportunity and to do some 15 1 different type of patient care. 2 Q All right. On your CV you've got, under 3 the August -- under that position it says, 4 implementation of correct usage of universal 5 protocol as established by Union Hospital. 6 A Um-hum. 7 Q Tell me about that. What did that 8 involve? 9 A When I went to the IR lab they did not 10 use universal protocol for their procedures. They 11 would not do a time-out process, they would not 12 verify name, date of birth, that type of thing. 13 So I brought my knowledge from the 14 operating room to the IR lab, and we followed 15 universal protocol to make sure that the patient was 16 safe. And we had all the equipment that we needed, 17 fire risk safety, that type of thing. 18 Q Okay. And in the universal protocol as 19 it existed at Union Hospital in that 2010 time frame 20 for the operating rooms, what was involved in that? 21 A You verified the patient's name, date of 22 birth, the consent form, any drug allergies, any 23 prophylactic antibiotics, any imaging that was 24 necessary for that particular patient. 25 Q Now, you had said in conjunction with 16 1 interventional radiology that you would also look at 2 equipment. What would you do in that regard in 3 terms of the OR? 4 A We often in interventional had vendors 5 bring equipment from the outside in. And the same 6 for the operating room. If there was a vendor or 7 loaner trays, etc., that were brought in from the 8 outside of the hospital, we would verify that they 9 were there and ready to go. 10 Q Okay. So, now, I take it that there was 11 also verification by the OR staff that equipment 12 that wasn't coming from the outside was there for 13 the surgery at some point in time; is that correct? 14 MS. WATSON: Objection to the form of the 15 question. 16 MS. FLOWER: Same objection. 17 Q You can answer. 18 MS. WATSON: Do you understand? 19 Q Do you remember the question? 20 A No, that kind of -- 21 Q Let me ask the question again because 22 sometimes the objections, when you're not used to 23 hearing them, throw you off. 24 So it sounds like what you're telling me 25 is that under the universal protocol at Union 17 1 Hospital, checking equipment would be looking at to 2 make sure that the equipment brought in from the 3 outside, by outside vendors, was in there and ready 4 to go for the surgery. Have I understood that 5 correctly? 6 A Correct. Um-hum. 7 Q And then my question that followed that 8 was, I assume that there was also a process at Union 9 Hospital for the OR staff to make sure that 10 equipment that came from the hospital and not from 11 the outside was also in the OR and ready to go prior 12 to surgery; is that correct? 13 A Yes, that is correct. 14 Q Okay. And what would that process be? 15 A I can't speak to personal practice for 16 every nurse. I can speak to my personal practice, 17 what I would have done. 18 What I would have done, if I had been 19 circulating that room, would have looked at the 20 preference card and ensured that everything on that 21 list was available to me and the surgeon for that 22 case. 23 Q And that falls in the duty of the 24 circulating nurse at Union Hospital, correct? 25 A Correct. And the surgical tech as well. 18 1 It's a collaborative that you go over the preference 2 card and together make sure that you have everything 3 you need. 4 Q Okay. Now, you have the pleasure of 5 being here today because, as I understand it, you 6 were the perioperative charge nurse in the March 22, 7 2000 [sic] time frame; is that correct? 8 A Correct. 9 Q All right. Do you have any recollection 10 of this surgery and the missing Morcellator pedal 11 that involved Jane Doe? 12 A I was not present that day at work. 13 Q Okay. 14 A I do know of the injury that occurred and 15 some of the circumstances around it. But to have 16 firsthand knowledge of that day, I do not. 17 Q Okay. So you have -- you had no role in 18 looking for the foot pedal or anything like that; is 19 that correct? 20 A No. Correct. 21 Q All right. Did you have any role in 22 finding the foot pedal that apparently was found 23 some later day? 24 A No. 25 Q Do you have any knowledge as to where the 19 1 foot pedal was found? 2 A No. 3 Q Do you know who found the foot pedal? 4 A No. 5 Q Do you, in fact, know that the foot pedal 6 was found? Or is that just something that -- 7 A I mean, I don't have firsthand knowledge 8 of that. I mean, like, obviously, I know that it's 9 been found at this point. But I was not there. I 10 do not know where it was found. I don't have any 11 direct knowledge of how, when, what or where it was 12 found. 13 Q Okay. Outside of any kind of M&M 14 conference, or quality assurance kind of 15 investigation, or conference after the fact, did you 16 play any role, once you got in to the hospital and 17 learned of this incident with Jane Doe, in trying to 18 find out what happened? 19 A No, I was not involved in any root cause 20 analysis, any post -- 21 MS. WATSON: She's talking about outside 22 of any kind of -- any kind of risk management, peer 23 review process, that type of thing. 24 THE WITNESS: Okay. 25 MS. WATSON: The answer is, no, anyway, 20 1 is my understanding. 2 BY MS. ANTHONY: 3 Q I think the answer is, no, you weren't 4 involved in any process, whether or not there was a 5 peer review or not a peer review, you weren't 6 involved in that; is that correct? 7 A No. Correct. 8 Q All right. Now, you're also here because 9 we've been told through other depositions that the 10 charge nurse was typically the person that had 11 responsibility for alerting physicians if there was 12 any kind of unavailability of equipment or change of 13 equipment. 14 First of all, was that one of your jobs 15 as the charge nurse at Union? 16 A Yes. Yes. 17 Q All right. And do you have any 18 recollection of ever learning about an issue with 19 the Morcellator and the availability of a 20 Morcellator? 21 A Yes. In October of 2009 there was a 22 recall on the products that we had on our shelf. We 23 returned -- I returned the product to purchasing who 24 then -- they dealt with the recall process. I was 25 just alerted to the recall, removed the product from 21 1 the shelf, and then gave it to them. 2 Q Okay. And what, if anything, did you do 3 with regard to notification of the surgeons who 4 might be needing that product? 5 A I called Dr. Frankenstein's office, spoke 6 with his surgical scheduler, who was Anna at the 7 time, and told her about the recall and let her know 8 it was not available for Dr. Frankenstein's use. 9 Q Okay. And the recall that we're talking 10 about was the recall on the hand-operated sterile 11 unit for the GYNECARE Morcellator; is that correct? 12 A Correct. Correct. 13 Q All right. And I take it that despite 14 the fact that the hand-operated units were not 15 available, there would still be the foot 16 pedal-operated units; is that right? 17 A Um-hum. Correct. 18 Q Okay. Do you recall how you got notice 19 of the recall? 20 A I don't recall speaking to a specific 21 person about it. It was the process that purchasing 22 would alert the department of the product to be 23 recalled, and then we would move forward with the 24 process. I don't remember specifically speaking to 25 a certain person about it. 22 1 Q Okay. And was this the only recall you 2 dealt with while you were the perioperative charge 3 nurse at Union? Or were there other recalls on 4 other various products? 5 A I don't recall if there was others or 6 not. 7 Q Okay. And did you have a specific 8 recollection of this recall of the Morcellator 9 before you got notice of the fact that we wanted to 10 take your deposition? 11 A I mean, obviously, I knew about the 12 recall. And I knew -- because I had handled it 13 specifically to call Anna and let her know that we 14 didn't have what he needed or wanted to do the 15 supracervical hysterectomies. So, obviously, I did 16 know about -- 17 Q And you have a specific recollection of 18 actually picking up the phone and calling Anna? 19 A Yes, I do. 20 Q Okay. And did you make -- would you have 21 made any kind of notes of that? 22 A Unfortunately, no, I did not. 23 Q All right. 24 (An off-the-record discussion was had at 25 approximately 8:22 a.m.) 23 1 (Smith Deposition Exhibit 2 was marked 2 for identification and retained by counsel.) 3 Q I'm going to mark as Exhibit 2 the recall 4 notice. Do you remember if that's something that 5 you got in your role as the perioperative charge 6 nurse? 7 A I don't remember seeing this, no. 8 Q Okay. So it sounds like what you would 9 have gotten is just the call from purchasing telling 10 you that you've got to take those off the shelf? 11 A Correct. 12 Q And do you remember physically going and 13 removing the MX0100s, which were the hand-operated 14 units, from the shelf? 15 A I do not remember that. It's more than 16 likely that I would have delegated that to one of 17 our support staff personnel. 18 Q And the OR support staff are folks that 19 work in the OR area that pull items off the pick 20 list for surgeries, correct? 21 MS. WATSON: Objection to the form of the 22 question. I just want to make sure that we're 23 clear, you're presuming for that question that it 24 was the OR support staff that she asked to do that. 25 MS. ANTHONY: No, my question was 24 1 different. 2 Q Well, when you said you would have likely 3 delegated the actual pulling of the hand-operated 4 units to somebody else, I thought you said the OR 5 support staff, correct? 6 A If I would have delegated, it would have 7 been to that staff, yes. 8 Q Okay. And there are staff that are 9 actually called the OR support staff, right? 10 A Yes. 11 Q And am I right that those are the folks 12 that help pull instruments that are in the OR area 13 for a particular surgery? 14 A Yes. 15 Q Okay. 16 (SMITH Deposition Exhibit 3 was marked 17 for identification and retained by counsel.) 18 Q I'm going to show you what's been marked 19 as Exhibit 3, it was also marked as Exhibit 8 to The 20 Union Hospital corporate designee deposition. 21 And I think we all believe that this 22 appears to be sort of a return of some of those 23 MX0100s, the handheld units. Did you have any role 24 in that communication at all? 25 A No. 25 1 Q Do you have any recollection of how many 2 of any laparoscopic supracervical hysterectomies 3 were performed by either Dr. Frankenstein or anybody 4 else at Union Hospital between the time of the 5 recall and Jane Doe's surgery? 6 A No. 7 Q Were there other gynecologists that you 8 also notified of the GYNECARE Morcellator recall? 9 A No, just Dr. Frankenstein and 10 Dr. Watson's office because the other physicians did 11 not utilize the Morcellator. 12 Q Okay. So it sounds like then there is 13 two surgeons in Dr. Frankenstein's office who did 14 laparoscopic supracervical hysterectomies; is that 15 right? 16 A During my time there, yes. 17 Q But they were both in the same office? 18 A Yes, correct. 19 Q So when you called Anna, that would be 20 covering Dr. Frankenstein and his partner that did 21 it as well? 22 A Correct, yes. 23 (SMITH Deposition Exhibit 4 was marked 24 for identification and retained by counsel.) 25 Q Marking as Exhibit 4 a document produced 26 1 yesterday by Union Hospital that's entitled, Manage 2 OR Bookings. Is Exhibit 4 something that you 3 recognize? And when I say, you recognize, do you 4 understand what that is? 5 A Yes, I do. 6 Q What is it? 7 A This is when the business assistant would 8 have actually taken the posting from the office for 9 the procedure. 10 Q Is this like a screen shot? 11 A This is a screen shot, yes. 12 Q All right. And so there is some 13 coding -- 14 MS. WATSON: I'm just going to clarify 15 for you, Susan, that this was not the 16 representation -- that's not my understanding of 17 what this is. So I just -- she hasn't seen this 18 before. It's a screen shot from a procedure. And, 19 I mean, I just don't want you to misunderstand. 20 This October 8th, 2009, date was another 21 laparoscopic hysterectomy. 22 MS. ANTHONY: I understand that. 23 MS. WATSON: Okay. I just want to make 24 sure. 25 THE WITNESS: I was going to actually ask 27 1 that question as to why there was two dates there. 2 BY MS. ANTHONY: 3 Q Well -- and you may not know the answer 4 to this, Nurse Smith, so that's okay if you don't. 5 It looked to me like this was an inquiry to try to 6 pull up all the laparoscopic supracervical 7 hysterectomies within a time frame. 8 And where it says over here on the, sort 9 of top area on the left-hand side where it says, lap 10 O-S-T-A-H, do you have any understanding as to 11 whether that's the code for laparoscopic 12 supracervical hysterectomy? 13 A No, I do not. 14 Q Okay. Who manages this kind of data? 15 A It would -- there was a business manager 16 at the time who oversaw the business assistants who 17 managed this data. 18 Q All right. If we assume for -- actually, 19 let me ask you one other question before we move on 20 from Exhibit 4. 21 On Exhibit 4 there is also, under 22 surgeon, it says -- what does it say there? 23 A F-R-A-N-K. 24 Q And do you know what F-R-A-N-K stands 25 for? 28 1 A I do. 2 Q What does that stand for? 3 A That stands for Dr. Frankenstein. 4 Q Okay. Oh, I get it. 5 A Exactly. That's how they label their -- 6 the physicians. It would be that way on the OR 7 schedule, as well. That's how I know the answer to 8 that one. 9 (Smith Deposition Exhibit 5 was marked 10 for identification and retained by counsel.) 11 Q Marking as Exhibit 5 -- well, strike 12 that. That means I'm going to ask another question. 13 A Okay. 14 Q So assuming that this schedule looks like 15 Dr. Frankenstein performed a laparoscopic 16 supracervical hysterectomy on October 8th, 2009, I'm 17 showing you Exhibit 5 which is a pick list from that 18 same date. 19 A Okay. 20 Q Do you have an understanding as to how 21 the pick list gets generated for a particular 22 surgery? 23 A Yes. 24 Q Can you tell me that? 25 A Yes. The business assistants would print 29 1 these out the day before the procedure and 2 distribute them to central sterile to start the 3 process of picking the case cart. 4 Q And then does the pick list come with the 5 case cart up to the OR area? 6 A Yes. 7 Q And then whatever needed to get picked 8 from the OR area would then be done by who? 9 A It could have been a variety of people. 10 Support -- there were support techs. Sometimes the 11 nursing staff would pitch in and help if there was 12 down time. So it could have been any one of those 13 personnel that did it. 14 Q All right. And then in terms of the 15 double check to make sure everything is there, that 16 would fall, as we talked about earlier, on the 17 circulator and the scrub tech to some degree; is 18 that correct? 19 A Correct. 20 Q And was there a written policy in place 21 at Union Hospital back when you were the 22 perioperative charge nurse that directly described 23 the duties of the circulator versus the scrub tech? 24 A I don't know. 25 Q On the pick list that we've marked as 30 1 Exhibit Number 5, the Morcellator that's on the 2 first page is listed as an MX0100, correct? 3 A That's correct. 4 Q All right. And now let me show you the 5 pick list from Jane Doe's surgery -- 6 (SMITH Deposition Exhibit 6 was marked 7 for identification and retained by counsel.) 8 Q -- which we've marked as Exhibit 6 to 9 your deposition. 10 The Morcellator on that pick list is 11 listed as the DV0015, correct? 12 A That is correct. 13 Q All right. Now, you may not remember, 14 but looking again back at Exhibit 2, the recall was 15 the MX0100, correct? 16 A Yes. 17 Q All right. Do you know how the pick list 18 got changed from the October 8th -- in the time 19 period between the October 8th surgery by 20 Dr. Frankenstein and the March 22nd surgery from the 21 MX0100 to the DV0015? 22 MS. WATSON: Objection, foundation. I 23 just don't want you to guess. If you know, fine. 24 If not -- 25 A I was going to ask you to repeat the 31 1 question because I missed part of it. 2 Q Yeah. So my question is, do you have any 3 knowledge as to how the pick list for 4 Dr. Frankenstein's laparoscopic supracervical 5 hysterectomies got changed between the time period 6 of October 8th, 2005, and March 22 -- I mean 2009 -- 7 let me start again. That was terrible. 8 Do you have any knowledge as to how the 9 pick list for Dr. Frankenstein's laparoscopic 10 supracervical hysterectomy got changed between the 11 time period of October 8th, 2009, and March 22, 12 2010, from the MX0100 to the DV0015? 13 A No. 14 Q Do you have any knowledge as to whether 15 or not materials management, or somebody within the 16 hospital administration, will change a pick list 17 without interaction -- without any input from the 18 physician because of an unavailability of a 19 particular product? 20 A No. 21 Q So you don't know one way or the other? 22 A No. I mean, I know the process for 23 changing items on a pick ticket, but I don't know 24 that that process happened with this case. 25 Q Fair enough. What is the process that 32 1 you understand for changing something on a pick 2 ticket? 3 A During the process of a case a surgeon 4 will say, I don't want this anymore, or, please add 5 this, or, please delete that. The circulating nurse 6 would make a note similar to this here (indicating), 7 and then submit this to the business manager who 8 would then verify it with the surgeon and then make 9 the changes. 10 Q Okay. And when you say, similar to this, 11 you are referring to a handwritten note down at the 12 bottom of Exhibit 5? 13 A Exhibit 5, correct. These handwritten 14 notes on Exhibit 5 -- 15 Q Yes. 16 A -- that to me would indicate something 17 that was needed to either be added, or they would 18 cross through something that needed to be deleted. 19 Q I see. Okay. 20 A I was going to say, that's why the 21 business manager would then verify with the surgeon 22 to make sure that, yes, indeed you want this added; 23 or, yes, indeed, you want this deleted, before it 24 would actually take place on the pick ticket. That 25 was the process. 33 1 Q Okay. Do you have any idea what the 2 process was when a product that is on the pick 3 ticket becomes unavailable, for whatever reason, so 4 that there has to be some kind of a substitution 5 either by another manufacturer or another version of 6 what the item is? 7 A Most often it would have been 8 communicated to the surgical services 9 manager/director, and then we would work as a team 10 with the physician to find something that would work 11 for that replacement. 12 Q Okay. Do you have any recollection with 13 regard specifically to the Morcellator and the 14 handheld unit being recalled, whether you worked at 15 all with Dr. Frankenstein's office to find a 16 substitute? 17 A No. 18 Q Did you know back in the fall of 2009 19 when you got the information about the recall on the 20 hand-operated unit, that there was, in fact, a foot 21 pedal-operated unit that was not being recalled? 22 A Yes. 23 Q And how did you know that? 24 A Because we didn't get the recall 25 information from purchasing. I mean, that's how 34 1 I -- that's how I would get all the knowledge about 2 recalls. So if there had been a recall on the foot 3 pedal, I would have gotten the same information just 4 like I got on the handpiece. 5 Q Yeah, so my question wasn't a very good 6 one. I was trying to get at something different. 7 Let me try again. 8 A Okay. 9 Q Did you have general knowledge of the 10 fact that there were two different units that went 11 with the GYNECARE Morcellator, one of which was hand 12 operated, one of which was foot pedal operated, both 13 of which operated the Morcellator? 14 A Correct, yes. 15 Q You knew that? 16 A Yes. 17 Q Okay. And do you have any recollection 18 of -- during the time that you were working at Union 19 Hospital -- whether or not Dr. Frankenstein was 20 using the foot pedal-operated unit in that time 21 period? 22 A During my time there there was occasions 23 where he did use the foot pedal-operated one. 24 Q Okay. And it sounds like you had no 25 personal interaction with Jane Doe; is that correct? 35 1 A That is correct. 2 Q Leaving aside anything you would have 3 learned about or done in any kind of peer review 4 process, is there anything else that you know about 5 this whole incident with Jane Doe and the foot pedal 6 being missing that we haven't already talked about 7 today? 8 MS. WATSON: And excluding any 9 conversations you've had with me, or anything you 10 may have learned from me. 11 A No. 12 Q Have I fully explored the depths of any 13 memory you have about that? 14 MS. WATSON: Objection to the form of the 15 question. 16 A Yeah, I think I've, you know, obviously 17 racked my brain since being alerted of this process 18 as to recall the process. So -- 19 MS. ANTHONY: Unfortunately, we have a 20 trial coming up next week. 21 MS. WATSON: She's expecting this. 22 Q All right. I have a trial subpoena for 23 you for Monday. Will Monday work for you? Or you 24 could come Tuesday morning? 25 A Either day is -- I mean, I'll make my 36 1 schedule work around either day. So whatever day -- 2 MS. WATSON: Well, Monday, certainly you 3 don't need her in the morning. 4 MS. ANTHONY: No, no, no. Monday it 5 would be some time later in the afternoon. 6 MS. WATSON: Which works better for you? 7 THE WITNESS: I would have to check. I 8 really don't even know what's on my schedule at 9 work. 10 MS. ANTHONY: Well, let me do this -- 11 we'll put this on the record. 12 BY MS. ANTHONY: 13 Q I'm handing you a subpoena that has 14 Monday at 1:00 p.m. 15 A Okay. 16 Q The time is negotiable and the date. If 17 you want to work with Ms. Watson as to what works 18 for your schedule, she'll let me know which is 19 better for you. 20 A Okay. If I don't have cases on Monday, 21 certainly that would be better since I wouldn't have 22 to pay somebody to come in and take my spot. But I 23 don't even know what's on the schedule. I haven't 24 looked that far ahead. But I can certainly do that. 25 Q 1:00 is not written in stone either. It 37 1 probably could be much later in the day than that. 2 A Okay. 3 Q Very good. 4 MS. WATSON: How many motions in limine? 5 Are there ten? And we've got to pick a jury and do 6 openings. 7 MS. ANTHONY: Yeah, I know. 8 Q And if it's easier for you, Ms. Smith, to 9 be on call, we can do that, too. So if it looks 10 like you're -- we're not, for whatever reason, going 11 to get to you Monday afternoon, we can also put you 12 on call. So if you'll work with Ms. Watson on that, 13 that would be great. 14 A Sure. 15 MS. ANTHONY: All right. Thank you so 16 much for coming today. I appreciate it. 17 THE WITNESS: You're welcome. 18 MS. FLOWER: Susan, can I ask the witness 19 just like one or two follow-up questions really 20 quickly? 21 MS. ANTHONY: Of course, you can. 22 MS. WATSON: You can ask as many as you 23 want. 24 MS. ANTHONY: I'm sorry, Rose, I forgot 25 you were there. 38 1 EXAMINATION BY COUNSEL FOR THE DEFENDANT, 2 DR. FRANKENSTEIN 3 BY MS. FLOWER: 4 Q Is it Ms. Smith? 5 MS. WATSON: Smith, S-M-I-T-H. 6 Q Can you hear me okay over the phone? 7 A Yes, ma'am. 8 Q Okay. Perfect. 9 I just wanted to follow up on a few 10 issues that you raised with respect to when you 11 contacted Dr. Frankenstein's office regarding the 12 handheld Morcellator being recalled. Was that in 13 October of 2009 or thereabout when you contacted his 14 office? 15 A That is correct. 16 Q And did you have any conversations 17 directly with Dr. Frankenstein with respect to the 18 recall? 19 A Not that I remember. 20 Q So you only recall having a conversation 21 with, I guess, his business manager and that was it, 22 correct? 23 A Yes, that's correct. 24 Q And am I also correct that, therefore, 25 you never contacted Dr. Frankenstein's office about 39 1 the foot pedal Morcellator not being available, 2 correct? 3 A Correct. 4 Q And with regard -- and I just want to 5 make sure -- with regard to Ms. Doe's surgery, you 6 did not have any involvement with regard to -- let 7 me just keep it vague -- you didn't have any 8 involvement with regard to that surgery in terms of 9 that surgery? 10 MS. WATSON: Objection to the form of the 11 question. What do you mean, Rose? 12 MS. FLOWER: I was trying to figure out 13 her involvement with the surgery. I believe she 14 testified that she wasn't even there. 15 MS. WATSON: Yeah, she wasn't there. 16 MS. FLOWER: So she didn't have any 17 involvement with the pick ticket or anything like 18 that. 19 BY MS. FLOWER: 20 Q Is that correct? 21 A That is correct. 22 MS. FLOWER: Thank you. I don't have any 23 more questions. 24 MS. ANTHONY: You have the right to read 25 and sign this transcript, but whether it's going to 40 1 get done in time for you to do that will be up to 2 Ms. Watson. 3 MS. WATSON: I assume you're ordering it 4 expedited? 5 MS. ANTHONY: Well, I am. But I ordered 6 it expedited as close to trial as I can to save 7 myself a couple bucks. 8 MS. WATSON: She would like to read. 9 (Off the record at 8:44 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 1 ACKNOWLEDGMENT OF DEPONENT 2 I, MARGARET SMITH, RN, BSN, do hereby 3 acknowledge that I have read and examined the 4 foregoing testimony, and the same is a true, correct 5 and complete transcription of the testimony given by 6 me and any corrections appear on the attached Errata 7 sheet signed by me. 8 9 ________________________ ________________________ 10 (DATE) (SIGNATURE) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 1 CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC 2 I, JANE SMITH, Registered Professional 3 Reporter, Certified Shorthand Reporter and Notary 4 Public, the officer before whom the foregoing 5 deposition was taken, do hereby certify that the 6 foregoing transcript is a true and correct record of 7 the testimony given; that said testimony was taken 8 by me stenographically and thereafter reduced to 9 typewriting under my supervision; and that I am 10 neither counsel for or related to, nor employed by 11 any of the parties to this case and have no 12 interest, financial or otherwise, in its outcome. 13 IN WITNESS WHEREOF, I have hereunto set my 14 hand and affixed my notarial seal this 28th day of 15 January 2014. 16 My commission expires July 25, 2015. 17 18 19 20 ________________________ 21 NOTARY PUBLIC IN AND FOR 22 THE STATE OF MARYLAND 23 24 25