by Gary C. King
“Yes. Absolutely.”
Chapter 26
Kathy Augustine’s longtime ob-gyn, Dr. Jerry L. Jones, was sworn in as a witness for the state and took the stand in the courtroom that had poor acoustics. He was greeted by Tom Barb, Washoe County deputy district attorney, who took the witness through the formality of stating his full name and spelling his surname. Dr. Jones’s obstetrics-gynecology practice was located in Las Vegas, and he had been seeing Kathy as a patient for fifteen years, from 1991 until the time of her death in July 2006. He had been involved in his medical practice for about five years at the time Kathy first came to him.
“During the course of her coming to you, was there ever any time when she complained of chest pains or shortness of breath, or anything like that?” Barb asked.
“No,” Dr. Jones replied.
“What was her general physical condition during the course of your connection to her?” Barb asked.
“She was in good health,” Dr. Jones said.
Barb elicited responses from the doctor that indicated that he had last seen Kathy as a patient on June 21, 2006. He reminded Dr. Jones of the poor acoustics in the courtroom and asked him to speak up “so that the lady in the back row at the far end can hear” his responses. Raising the level of his voice a little, Dr. Jones explained that Kathy had come in to his office on that date for her annual examination and a pap test. The examination, he said, indicated that she was in good health.
“Her blood pressure was normal,” Dr. Jones said. “I listened to her heart and lungs. They were clear. Her heart rhythm was normal. And her female organs were all normal.”
“So, generally, she was a fifty-year-old, healthy, happy human being?” Barb asked.
“Yes.”
“Doctor, on the information that you provided, what was her blood pressure on June twenty-first?”
“Her blood pressure that day was one hundred ten over seventy-eight.”
Dr. Jones explained in response to Barb’s questions that there was not anything significant about Kathy’s visit to his office on June 21, and that during the fifteen years that she had been his patient, there had not been any complaints or illnesses of a life-threatening nature to cause him any concern about her health.
“Did you ever prescribe her any medications?”
“Female medications, vaginal yeast, urinary tract infection antibiotics. That sort of thing.”
“Is that all?” Barb asked.
“To the best of my knowledge,” Dr. Jones responded. “I have reviewed all of my records. Yes.”
“Thank you, Doctor. That’s all I have.”
One of Higgs’s attorneys, California lawyer Alan Baum, gave his client a reassuring glance, stood up from the defense table, and approached the witness for his cross-examination. Baum skipped the usual pleasantries and got right down to business.
“Dr. Jones, is it true that Kathy Augustine had some heart condition that caused you to actually make a referral to a cardiologist?” Baum asked. “Isn’t that true?”
“I’m not sure that I referred her,” Dr. Jones responded. “She may have gone on a self-referral. She did some years before. There’s a referral from a Dr. Keith Boman. But that may have just been a note that he sent to us at her request.”
Baum confirmed by verifying with the witness that Kathy’s routine medical records from Dr. Jones’s office had been submitted to the authorities, and referenced a report of her visit to Dr. Boman’s off ice that was dated October 18, 1995. Baum asked the witness to read the first paragraph of the report to the jury, which prompted an objection from the state.
“Excuse me, Your Honor,” Barb said. “What’s the purpose of this? The doctor has said he has that report. He’s not refreshing any recollection. Could he just ask a question?”
“The doctor testified that he wasn’t certain whether he made a referral for cardiological examination, and this letter indicates that he did,” countered Baum.
Judge Kosach agreed with the defense and overruled Barb’s objection. Dr. Jones was instructed to read the first paragraph of the report aloud.
“Kathy Augustine is a thirty-nine-year-old white female referred by Dr. Jones for evaluation of mitral valve prolapse,” Dr. Jones read.
“You’re the Dr. Jones he was referring to?”
“I am. But he would have written [it] even if it was a self-referral by Kathy.”
“Dr. Boman would write that she was referred to him by you even if that wasn’t true?”
“As a reference to where he might send a report to, yes.”
“Well, it doesn’t say here that Miss Augustine is being seen by an ob-gyn by the name of Jerry Jones for the purposes of sending you a report. It says here she was referred by you.”
“Okay.”
Baum then took the witness through a series of questions regarding the report of the echocardiogram that was done by Dr. Boman in 1995, as well as its interpretation and the degree to which Dr. Jones had reviewed it.
“Have you reviewed the entire report?” Baum asked.
“It wouldn’t mean anything to me,” Dr. Jones replied. “I’m not a cardiologist.”
“So if you read things about the results of an echocardiogram, you, as a licensed physician, wouldn’t understand what that means?”
“I don’t understand the number. I do read the interpretation. . . yes.”
Baum confirmed with the witness that the report in question, slightly more than two pages long and without charts and graphs, consisted of narrative descriptions that even a layperson such as him would be able to understand. After determining that the witness wasn’t sure whether he had read the report recently or not, the doctor was given a few minutes to read it at that time to refresh his memory of its contents. When he had finished reading, Baum took up the questioning again.
“You just testified that nothing in Kathy Augustine’s medical history or any findings that you made in the entire fifteen years that you treated her ever gave you cause for concern,” Baum stated.
“Correct.”
“Is that still your opinion after reading this cardiological report . . . ?”
“Yes, it is.... To the best of my knowledge, that was Kathy’s only visit to Dr. Boman.”
“Yes, I understand that,” Baum said somewhat testily. “But . . . you received this report shortly after it was written in October of 1995, did you?”
“Sometime in 1995, yes.”
“And I think it’s safe to assume that you read it.”
“Correct.”
“Okay. And this report indicates that ‘the patient has been relatively asymptomatic.’ What did that mean to you?”
“You know, to me, during the past eleven years, Kathy described no symptoms or pain.”
“No, I’m talking about in 1995 when the report was written, after the paragraph that says that she was referred by you for echocardiogram.”
“Right.”
“And it says, ‘For evaluation of mitral valve prolapse.’”
“Okay.”
“So I assume that you knew or suspected that Kathy Augustine, when you made this referral, had mitral valve prolapse.”
“I did not refer her for that reason,” Dr. Jones responded. “I have no recollection that I referred her to Dr. Boman.”
“So when Dr. Boman writes that . . . she was referred by Dr. Jones for evaluation of mitral valve prolapse—”
“Objection,” Barb cut in. “Asked and answered.”
“I’m sorry, Your Honor,” Baum said. “This is very important.”
“It’s asked and answered,” countered Barb. “He doesn’t get to do it four times.”
Judge Kosach sustained Barb’s objection.
“And when you read in this report that ‘she has been relatively asymptomatic,’ what did that mean to you?” Baum asked again.
“You’d have to ask Dr. Boman,” Dr. Jones replied. “I don’t know what he meant by that.”
“You don’t have a comm
on sense understanding of what the phrase ‘relatively asymptomatic’ means?”
“I’d be trying to read his mind [about] what he was saying.”
“Well, no, he wrote it,” Baum argued. “It’s not a matter of reading his mind. My question is: don’t you have a general understanding of what ‘relatively symptomatic’ means?”
“I do.”
“And what would that understanding be?”
“That she came in with maybe some minimal complaints to Dr. Boman’s office. Again, she may have been a self-referral. . . . So she might have even been referred by a friend . . . the way she reached my office.”
“Notwithstanding what he said about your referring her?”
“True. Eleven years earlier.”
“Okay,” Baum said. “And when the cardiologist writes that ‘she was known to have a heart murmur at an early age,’ isn’t a heart murmur some abnormality of the heart?”
“It is,” replied Dr. Jones. “I have a heart murmur.”
Dr. Jones went on to state that he obtains a checkup by a cardiologist every five years or so and that he has had echocardiograms in the past because cardiologists typically order that test on virtually each new patient that they see, and that such a test is ordered as often as the cardiologists think it needs to be done. It seemed that the questions being asked of the state’s witness by Baum were being aimed at unraveling the doctor’s earlier testimony that Kathy Augustine had been in good health. Dr. Jones seemed unshakeable, however.
Baum again read from Dr. Boman’s report: “Recently she had noticed some mild palpitations. Heart murmur was again confirmed by examination and was referred to this office for evaluation.”
“Heart palp and mild palpitations is not normal in a—” Baum said.
“I’m having those right now,” Dr. Jones stated.
“All right. Listen, I don’t want to be the cause of any event. If you need a break, let me know.”
“No, I’m fine.... It’s a common occurrence.”
Dr. Jones testified that he had asked his cardiologist what he does when he has palpitations, and the cardiologist purportedly told him that he ignores them. Dr. Jones said that heart palpitations were a common occurrence in people with mitral valve prolapse, and he and Baum finally agreed that everybody handles their problems in their own way. Nonetheless, Baum persisted in his attempt to shake the doctor from his earlier testimony that his patient, Kathy Augustine, had been in good physical condition.
“When Dr. Boman writes . . . ‘heart murmur was again confirmed by examination and was referred to this office for evaluation,’ that sounds like someone who made the referral, confirmed a heart murmur, and thought it would be a good idea for her to have an echocardiogram,” Baum said. “Is that a reasonable interpretation?”
“Well, not necessarily heard the heart murmur,” Dr. Jones replied. “But if she had symptoms, [she] would have come in on referral. I did not refer to Dr. Boman as a practice, as a habit, in my practice in the past. So that’s one reason I’m suspicious, sir, or reluctant to admit that I referred Kathy to him.”
“But this report here was part of your medical records,” Baum said.
“It’s in the medical record from twelve years ago.”
“Again, in connection with your opinion that nothing in the history of your professional relationship as the treating ob-gyn for Kathy Augustine gave you cause for concern—that was your testimony on direct examination?”
“To the best of my knowledge, that was the one and only time she ever described that symptom to anyone.”
“Going on your evaluation or your opinion that nothing ever caused you concern, this echocardiogram report states [that] ‘she notes only an occasional extra heartbeat.’ Is an extra heartbeat normal, or is it kind of part of this heart murmur, mitral valve prolapse syndrome?”
“It’s a common thing with mitral valve prolapse.”
“Again, in connection with your opinion that nothing ever caused you concern, the report of the echocardiogram is that it confirmed late systolic mitral valve prolapse, which was definite. Do you understand what that means?”
“I do.”
“And what does that mean?”
“It means that one of the leaflets of the heart valve flaps back into the opposite chamber from where the blood flows.”
“And it was confirmed in the echocardiogram?”
“Dr. Boman described that. He is still alive and well and practicing, by the way.”
“I’m glad to hear that,” Baum replied with a hint of disdain in his voice. “Isn’t an echocardiogram probably the best test or the most frequently recommended test for people that have mitral valve prolapse?”
“I think the invasive tests are more specific. The coronary catheterization tests are more specific,” Dr. Jones stated.
“And when you say ‘invasive,’ that means that you actually have to go into the hospital . . . and then there’s some kind of a surgical procedure?”
“Procedure, right. Put a line in.”
“But in noninvasive, that is, electrical and photography-type tests, an echocardiogram is the recommended test for mitral valve prolapse?”
“The most common test, yes.”
“In connection with the findings of the echocardiogram here,” Baum said, “this doctor also reports, ‘Minimal mitral regurgitation was present.’ Do you understand the difference between mitral valve prolapse and mitral regurgitation?”
“I have that also,” Dr. Jones replied. “Yes, I understand.”
“And what is that difference?”
“It means that some of the blood flows back from the ventricle into the atrium.”
“Would you agree that . . . the regurgitation is somewhat more serious than the prolapse itself?”
“It’s a common finding. You’d have to ask a cardiologist what they think about that.”
“Well, since you have both conditions, hasn’t your cardiologist told you that prolapse is fairly benign and hardly ever causes anything other than an occasional heart murmur or occasional extra heartbeat, that sort of thing, right?”
“Uh-huh.”
“But regurgitation is a little more serious, isn’t it, Doctor?”
“That’s not what they tell me. He tells me I’m in good health.”
“So, if we’ve had testimony from a cardiologist in this case that mitral valve prolapse, while in and of itself is not really dangerous, mitral regurgitation, where the blood flows back, can lead to arrhythmia, which can lead to fibrillation, which in some instances can lead to sudden cardiac death—would that cardiologist be wrong?”
“I don’t know that,” Dr. Jones replied. “I’m not a cardiologist.”
“In the echocardiogram report that you considered, the doctor finds a mid-systolic click, with a very short systolic murmur heard in the left-lower sterna border and apex,” Baum said. “Do you understand what that means?”
“I don’t understand the clinical significance of that.”
“Isn’t it true that a click is an irregular heartbeat and something that when heard and detected is further assistance in diagnosis of heart problems?”
Baum was trying hard to get Kathy’s ob-gyn to state in court that Kathy had a heart problem. However, Dr. Jones continued to stand his ground.
“Not that I’m aware of,” Dr. Jones responded.
“In the portion of the report of this cardiologist for recommendations, you could perhaps take a look at page three of the report.”
“I have that page.”
“Suggest yearly check, with possible echocardiogram every few years for further evaluation of the prolapse and the mild mitral regurgitation, which is clinically not significant at this time. You understand that to mean that the cardiologist, in light of what he knew of the history and the findings that he made, recommended yearly checkups with possible echocardiogram every few years?”
“That would have been the advice he would have given Kathy, yes.”
/> “Now, with that in mind, and being her regular doctor who she saw probably, what, three or four times a year?”
“Once a year.”
“Once a year,” Baum repeated. “Did you check with her to see if she was having what this doctor recommended—that is, these periodic echocardiograms?”
“Kathy had no physical symptoms or complaints that she described to me,” Dr. Jones offered, instead of answering the question.
“Did you ask her if she was having regular echocardiograms as the cardiologist recommended?” Baum asked, persisting.
“No.”
“And it was also recommended by the cardiologist here in the report, Also suggest a treadmill after her fortieth birthday to evaluate for any arrhythmias with exercise. Did you check with Kathy Augustine to find out if she was having, as recommended by this cardiologist, a treadmill after her fortieth birthday?”
“No, I did not.”
“Did you recommend that she do that after her fortieth birthday?”
“We discussed the report probably at the time it came back after her visit with Dr. Boman.”
“And she was under forty at that time.”
“She would have been under forty years old at that time.”
Baum brought up the fact that Kathy was still a patient of Dr. Jones’s after she turned forty, for approximately another nine or ten years.
“At any time, did you ask her, ‘Listen, Kathy, that cardiologist recommended that you have a treadmill test after you were forty. I think it’s a good idea that you do that’?” Baum asked.
“I hadn’t discussed it with her,” the doctor replied.
“And it says in here the reason the cardiologist wanted her to have a treadmill after age forty was to evaluate for any arrhythmias, doesn’t it?”
“Yes, it says that . . . with exercise.”
“And arrhythmias, as you’ve understood and agree, is one of the possible consequences of mitral regurgitation, which can lead to a more serious health problem,” Baum stated. “An arrhythmia is a more serious health problem, isn’t it?”