1 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

2 THIRD JUDICIAL DISTRICT AT ANCHORAGE

In The Matter of the )

4 Hospitalization )

)

5 )

of )

6 )

FAITH J. MYERS )

7 )

Case No. 3AN-03-277 P/S

DEPOSITION OF ROBERT HANOWELL, MD

16 Thursday, February 27, 2003

11:38 A.M.

23 Taken by Counsel for Respondent

24 Alaska Psychiatric Institute

2900 Providence Drive

25 Anchorage, Alaska

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1 A-P-P-E-A-R-A-N-C-E-S

For Respondent:

James B. Gottstein, Esq.

4 LAW OFFICES OF JAMES B. GOTTSTEIN

406 G Street, Suite 206

5 Anchorage, Alaska 99501

907/274-7686

For Petitioner:

Jeffrey Killip, Esq.

9 ATTORNEY GENERAL'S OFFICE

1031 West Fourth Avenue, Suite 200

10 Anchorage, Alaska 99501

907/269-8484

Also Present:

Nicholas Kletti, MD

Court Reporter:

Jeanette Blalock

17 PACIFIC RIM REPORTING

711 M Street, Suite 4

18 Anchorage, Alaska 99501

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1 I-N-D-E-X

EXAMINATION BY PAGE

Mr. Gottstein 4

Mr. Killip 45

Mr. Gottstein 50

EXHIBITS

1 1-page letter dated 2/27/03 7

2 Patient chart **

3 1-page cover of DSM-IV-TR 9

4 PDR report on Zyprexa (18 pages) 18

5 From Placebo to Panacea (58 pages) 31

6 Letter dated 2/26/03 (2 pages) 36

7 Curriculum vitae (2 pages) 50

8 Patient master chart **

** - Original retained by API. No copy provided to

19 reporter.

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1 ANCHORAGE, ALASKA; THURSDAY, FEBRUARY 27, 2003

2 11:38 A.M.

3 -o0o-

4 ROBERT HANOWELL, MD,

5 deponent herein, being sworn on oath,

6 was examined and testified as follows:

7 EXAMINATION

8 BY MR. GOTTSTEIN:

9 Q Thank you, Dr. Hanowell. I understand this

10 is a diversion from your normal activities of the

11 day.

12 You were served with a subpoena duces tecum

13 to bring certain documents; is that correct?

14 A Yes, sir. And to the best of my ability, I

15 did so.

16 Q So No. 1 was the -- your curriculum vitae.

17 Did you bring that?

18 A I am having a copy of it made. I can

19 certainly ask that that be brought down. I didn't

20 have a copy in my office, and I asked Dr. Kletti's

21 administrative assistant to make a copy of that.

22 Q Okay. And then you were asked to bring the

23 medical chart. I assume that's there, right?

24 A Yes, sir. I was informed, however, by our

25 medical records director that I am not to release this

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1 to you at this juncture. That was -- I received that

2 in a paged e-mail approximately an hour ago. But I do

3 have it here with me.

4 Q But you can -- would you be agreeable to

5 having a copy made, and given to the court reporter?

6 A I just wanted to clarify. Our medical

7 records director thought that she -- that perhaps a

8 copy had already been given to you a few days ago. Is

9 that accurate?

10 Q Yes.

11 A Okay. So you just wanted the additional

12 information that's been added since that time?

13 Q Well, I mean, I guess -- the thing is, is

14 that I need to have everything, okay? I don't know

15 what's been added since.

16 MR. KILLIP: You have got a release, right,

17 Jim?

18 MR. GOTTSTEIN: Yeah.

19 BY MR. GOTTSTEIN:

20 Q So the best thing is just to get what you

21 have now, and make a copy of it. And then we will

22 know that's what it is.

23 A I defer to my attorney.

24 MR. KILLIP: Yeah. At this point, I don't --

25 I mean, if you have got a release, and you're her

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1 attorney representing her in this proceeding, I mean,

2 initially, I just don't see a problem with that.

3 But given the expedited nature of

4 everything -- I guess maybe it'll probably be brought

5 to my attention after this deposition. But I am not

6 aware of anything.

7 MR. GOTTSTEIN: I think that I am entitled to

8 it. I mean, it would take more time to figure out, I

9 think, what I don't have, than to just ask the office

10 to copy the whole thing again and give it to the court

11 reporter, trying to expedite things.

12 THE WITNESS: I defer to my attorneys.

13 DR. KLETTI: Jim, at what level would it be

14 reasonable, to every hour Xerox the chart for your

15 review? I mean, that's what --

16 MR. GOTTSTEIN: Well, it's been a couple of

17 days. If you want to compare, I would be happy if you

18 would agree to, as new entries are made, have copies

19 available, that would be great. Or if you want to

20 review what you sent last time and give me copies of

21 what --

22 DR. KLETTI: I think we have given you

23 updated progress notes from the last, and updated

24 treatment plans from the last, the medications orders,

25 if you'd like that, also.

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1 MR. GOTTSTEIN: Yeah. Any changes, any

2 additions.

3 But what I'd really like to do is start with

4 what we have here, unless you have a record of what

5 you gave me two days ago.

6 DR. KLETTI: We don't have a copy of it, but

7 we have the original chart there.

8 MR. GOTTSTEIN: So you'll make a copy of the

9 whole thing?

10 We are taking a lot of time on this.

11 DR. KLETTI: It's your time.

12 BY MR. GOTTSTEIN:

13 Q And then No. 3 was your written report

14 regarding this matter?

15 A Yes, sir. I did draft a report. I wasn't

16 sure to whom I should address it. I addressed it to

17 Mr. Killip.

18 Q Could I see that, please?

19 MR. KILLIP: Sure. This is No. 3.

20 A I will acknowledge that it was done very

21 quickly, and it's perhaps not the best written letter

22 I have ever made -- ever written, but I did my best.

23 MR. GOTTSTEIN: Let's mark this as Exhibit A,

24 or whatever exhibit you want.

25 (Exhibit No. 1 marked.)

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1 BY MR. GOTTSTEIN:

2 Q So we are going to have a copy of that.

3 MR. GOTTSTEIN: And let's make that

4 Exhibit 2.

5 BY MR. GOTTSTEIN:

6 Q How about No. 4?

7 A Yes. That would be the record -- the

8 hospital record, the medical record.

9 Q So you didn't rely on any medical,

10 psychiatric or other type of treatises, texts,

11 manuals, studies, or other materials or authorities

12 that you used at arriving at your opinion?

13 DR. KLETTI: He relied on his training.

14 MR. GOTTSTEIN: You are not -- you are not

15 being deposed here, so you really shouldn't be saying

16 anything.

17 A I didn't refer to any specific text.

18 However, I based it on the training that I have had

19 and the texts that I have read.

20 Q Do you have a list of those?

21 A I could certainly provide one verbally. I

22 don't have a written list. It would be difficult to

23 provide such a list.

24 Q Well, you were ordered to do that by the

25 court.

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1 I am showing you a copy of the cover page of

2 the Diagnostic and Statistics Manual of Mental

3 Disorders, Fourth Edition, Text Revision, DSM-IV-TR.

4 Are you familiar with that?

5 A Yes, sir.

6 Q Would you consider that authoritative?

7 A Yes, sir.

8 I should also add something. I did refer to

9 the previous chart, as well, sir, the master file, so

10 to speak, which has a record of Ms. Myers' previous

11 hospitalizations.

12 Q That should have been brought.

13 A Indeed.

14 Q Could you provide a copy of that, and we'll

15 mark that as an exhibit.

16 (Exhibit No. 3 marked.)

17 A With my attorney's permission, and the

18 medical director's permission, I could certainly look

19 into that, and do my best to provide a copy of that,

20 if it's agreed upon by my medical director and by my

21 attorney.

22 MR. KILLIP: Yeah, Jim. My position is I

23 don't see a problem with that being -- I mean, it's

24 part of the record for treatment, so I would group

25 that in.

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1 MR. GOTTSTEIN: I am entitled to know what

2 he's basing his opinions on.

3 BY MR. GOTTSTEIN:

4 Q So one of the things that's required is that

5 you give information to the respondent regarding

6 medications that you proposed. Did you bring a copy

7 of what you provided her with regard to that?

8 DR. KLETTI: Where is this?

9 A I'm sorry, sir?

10 Q It's part of the substance of all

11 communications to and from the respondent. But

12 basically, I can get to it later, and I am about to

13 get there. Well, actually, it's a little bit later.

14 Under AS 47.30.837(d)1-2, before you can seek

15 court-ordered medication, you have to have given the

16 patient all information that is material to the

17 patient's decision to give or withhold consent. Did

18 you do that?

19 DR. KLETTI: It can be verbally. It doesn't

20 have to be in writing.

21 A Yes, sir. It was done verbally. We did

22 discuss a number of different medications.

23 Ms. Myers has in the past taken Navane; she

24 has taken Zyprexa; she has taken Risperdal. I

25 attempted to find out which of these was most

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1 agreeable, that she found most agreeable to her. And

2 basically, she indicated she didn't wish to take any

3 of those medications, that she wished to treat her --

4 Well, basically she doesn't believe that she has an

5 illness, but she feels that one can maintain good

6 mental health by good nutrition.

7 Q You should just answer the question.

8 A Sorry.

9 Q I am showing you a copy of a printout on

10 Zyprexa. You are seeking to medicate her with

11 Zyprexa; is that correct?

12 A I have offered her other medications, as

13 well.

14 Q What medication are you seeking the court to

15 order her to take?

16 A My preference would be Zyprexa, yes, sir,

17 because it has worked for her in the past, yes, sir.

18 Q Are you planning on requesting the court to

19 order any other medication?

20 A Generally, my understanding -- perhaps

21 mistaken, but my understanding is the court generally

22 provides an order that we can provide medications. It

23 doesn't usually specify which one.

24 Q Are you refusing to tell me what medications

25 you might ask the court to order?

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1 MR. KILLIP: Jim, he's just trying to answer

2 your question.

3 BY MR. GOTTSTEIN:

4 Q So you don't know at this point? You are

5 expecting the court to order you to give her whatever

6 medications you might choose later?

7 A Sir, I did have some discussion with her this

8 morning in regards to some newer medications that she

9 hasn't tried. And perhaps those would be more

10 agreeable. She would be perhaps more agreeable to

11 take those.

12 She didn't wish to try any of those. But she

13 states that she didn't like the effects of Zyprexa.

14 And I attempted to determine specifically what side

15 effects she did have, and it wasn't at all clear,

16 based on our conversation. However --

17 Q I am trying to find out what -- I mean, I am

18 trying to find out what medications that you might be

19 requesting the court to order her to take.

20 A Well, Zyprexa would be one.

21 DR. KLETTI: Counsel --

22 MR. GOTTSTEIN: Could you -- Mr. Killip,

23 could you instruct Dr. Kletti to either not say

24 anything or to leave the room?

25 DR. KLETTI: Well, I think we have the

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1 opportunity to stop and counsel around these questions

2 if -- you know, if I want to confer.

3 MR. GOTTSTEIN: I don't think so.

4 DR. KLETTI: We are on opposing sides here.

5 MR. GOTTSTEIN: Yeah, but this is my

6 deposition. You are not supposed to talk.

7 Could you please instruct your client to

8 either not say anything or to leave the room?

9 DR. KLETTI: He has the opportunity to confer

10 with counsel.

11 MR. GOTTSTEIN: You don't have the right to

12 speak now.

13 MR. KILLIP: Well, Jim, I mean --

14 MR. GOTTSTEIN: You are trying to testify in

15 his deposition.

16 DR. KLETTI: I am trying to object to stop,

17 so that we can --

18 MR. GOTTSTEIN: You don't have the right to

19 do that.

20 MR. KILLIP: Maybe what we should do is, if

21 it's okay with you, if Dr. Kletti could remain in the

22 room, and if the question comes up where Dr. Kletti

23 and Dr. Hanowell want to confer about a certain

24 question, then --

25 MR. GOTTSTEIN: No.

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1 MR. KILLIP: -- that would be a fast way to

2 do it.

3 MR. GOTTSTEIN: We've got a limit set by the

4 court. We should just go through this. It has

5 already taken longer than it should.

6 I am perfectly happy to have him here, but

7 not participating. He is not permitted to do that.

8 DR. KLETTI: If you truly want answers to,

9 you know, these questions that you are asking, you

10 want to move to more germane areas.

11 MR. GOTTSTEIN: It is not your decision to

12 make.

13 DR. KLETTI: That's why I am asking for --

14 MR. GOTTSTEIN: I am requesting that you

15 instruct Dr. Kletti to leave the room, please.

16 MR. KILLIP: Well, I guess it's your -- If

17 that's what you want, I mean, then --

18 MR. GOTTSTEIN: I have asked repeatedly that

19 he just remain silent, and he is refusing to do it, so

20 I don't have any other alternative.

21 MR. KILLIP: I guess we would object. And

22 then if -- in an effort to try and reach a greater

23 area of common ground, I guess it's up to Dr. Kletti

24 about whether he wants to leave. And then if we have

25 a question for him, if Dr. Hanowell has a question, we

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1 will try to track him down. And hopefully, that won't

2 delay the deposition too long.

3 MR. GOTTSTEIN: Fine.

4 MR. KILLIP: How do you feel about that?

5 DR. KLETTI: If I leave the room, I am going

6 to ask Mr. Killip to object to every question, and

7 come out and confer. I think that your line of

8 questioning is narrow-minded, biased, and you are

9 trying to get some kind of answer that suits the "when

10 did you stop beating your wife" kinds of questions.

11 MR. GOTTSTEIN: So earlier, we -- you know,

12 you mentioned -- when I talked about following the

13 law, you said that there's a spirit in the letter.

14 You know, can you explain a little bit more what you

15 mean by that?

16 MR. KILLIP: Jim, I am going to object to

17 that, because I mean, as you said, Dr. Kletti is not

18 being deposed.

19 MR. GOTTSTEIN: So he gets to talk when he

20 wants to, but not when I ask him a question?

21 MR. KILLIP: Well, the -- we've got four

22 educated professionals here, and we are acting -- we

23 are going down a road --

24 MR. GOTTSTEIN: I am just trying to find out

25 what medications he is going to ask the court to order

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1 my client to take. That's a very basic question.

2 MR. KILLIP: I think he's already answered

3 it.

4 DR. KLETTI: Right.

5 BY MR. GOTTSTEIN:

6 Q Is it only Zyprexa?

7 DR. KLETTI: If you let me --

8 MR. GOTTSTEIN: That's all I was trying to

9 get.

10 BY MR. GOTTSTEIN:

11 Q Is it only Zyprexa?

12 DR. KLETTI: No. The treatment of

13 antipsychotic conditions is with antipsychotics.

14 MR. GOTTSTEIN: Please leave the room.

15 MR. KILLIP: Can we just move on.

16 Dr. Hanowell can you answer the question,

17 please?

18 A Sir, just to explain, basically, what I would

19 do, if Ms. Myers were court ordered to take

20 medications, I would meet with her again and say:

21 Look, these are the options that are available to you.

22 I have discussed them with her previously. Would you

23 prefer to go back on Zyprexa, or something different

24 that maybe you might find less objectionable?

25 So if I seem to --

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1 Q What was the substance of the information

2 that you gave Ms. -- the respondent, regarding

3 information that is material to the patient's decision

4 to give her consent? You said you gave it verbally.

5 What was it?

6 A Yes, sir. I mentioned to her that she had

7 benefited -- this is my first discussion with her.

8 Excuse me, my second discussion with her.

9 My first discussion with her, she didn't wish

10 to continue the discussion beyond a very brief time.

11 My second discussion with her was on Monday.

12 And I mentioned to her that Zyprexa had helped her in

13 the past, and that it appeared to -- Going by memory

14 now. But it appeared to have been helpful to her, and

15 that when she left the hospital, she was doing well,

16 and would she be willing to resume that medication.

17 She indicated that she would not, that she

18 was opposed to medication, and that she felt the best

19 approach to deal with her issues -- although she

20 doesn't believe she has a mental illness, that the

21 best way for her to deal with her issues is maintain

22 good nutrition.

23 Q Okay. So I am going to give you a copy of

24 the printout. First off, you would agree, wouldn't

25 you, that the PDR is authoritative -- the Physician's

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1 Desk Reference is authoritative with respect to

2 medications; is that correct?

3 A Yes, sir.

4 Q Could you look at that? It's a printout from

5 a CD version of the PDR. Does that look correct?

6 A Yes, sir.

7 MR. GOTTSTEIN: Could we mark that as

8 exhibit --

9 (Exhibit No. 4 marked.)

10 BY MR. GOTTSTEIN:

11 Q So specifically, then, did you warn her about

12 neuroleptic malignant syndrome?

13 A I did not.

14 Q Did you warn her about tardive dyskinesia?

15 A I did not, because the discussion didn't get

16 that far. She declined to take the medication before

17 I got to that point.

18 Q Did you advise her about somnolence?

19 A I believe she brought up the issue that she

20 had noticed some drowsiness on the medication.

21 Q And that wouldn't affect your desire to

22 forcibly medicate her with that?

23 A No. Because we -- as I mentioned, we have

24 discussed other medications, as well. And she has

25 indicated she is opposed to taking any psychiatric

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1 medication.

2 Q Did you warn her that Zyprexa has a potential