Liveblogging the Radiology Mock Jury Trial

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For most of the day today I'll be liveblogging the Mock Jury Trial. For those new to blog-reading, a liveblog is a continuously updated entry designed to make you feel as much as possible as if you're there in the room. Keep refreshing this entry to follow the trial as it progresses! The trial, moderated by Leonard Berlin, MD, will be based on a Chicago malpractice case filed by the family of a 55-year-old man who died of lung cancer a year after his radiologist reported on a suspicious finding, but failed to communicate the finding verbally to the referring physician . . . The meeting room actually looks a bit like a courtroom, with a desk for the judge and a podium for the speakers at the front of the room and a packed audience eagerly awaiting their every word in the back. It's very nearly a full house, which is to be expected with a topic so near and dear to the hearts of those who have faced or anticipate facing the medicolegal ramifications of insufficient referring physician communication. The participants include the judge, Stuart Nudelman, attorneys, expert witnesses, and of course, the defendant -- played in this case by Jonathan Berlin, MD. As Dr. Leonard Berlin continues to introduce the participants, we're getting a rundown of their qualifications. The judge is a real judge specializing in this area, the attorneys real trial lawyers at the top of their fields. Thomas Demetrio will represent the plaintiff; Tim Nickels will represent the defendant. The jury of 12 laypersons includes a college student, an RN, a retail worker, salesmen and so on. The case's basic facts are: a 53-year old woman presented with chest pain, and the ED MD read her chest films as normal. Later the radiologist faxed a report including a suspicious finding, but no one noticed the discrepancy; 20 months later the woman presented with a lung carcinoma and subsequently died. Her family then went on to sue the radiologist. The ED says he did not call the rad on the films because he felt confident they were normal; the radiologist did not feel it was necessary to call the ED. Here's something the jury won't know: the radiologist feels he was correct and did nothing wrong, which is why he decided to proceed with the trial. The jury will deliberate on the case during lunch -- and their deliberations will be piped in to the meeting room for all to hear. Looks like I won't be the only one skipping the midday meal -- it sounds like this is something people want to hear. Okay, we're getting started, with the "sheriff" bringing in the "jury." It's clear already that great pains have been taken to make the trial as realistic as humanly possible. Judge Nudelman is introducing the topic to them, letting them know that today they must decide whether Dr. Berlin's negligence was the cause of the woman's death. Now for the attorneys' opening statements . . . The plaintiff's attorney, Demetrio, begins by telling the jury that the case is a simple issue of patient safety -- "or, in this case, the lack of patient safety." As he outlines the events of that fateful night in 2005 when "Barbara Rowley" went to the ED with chest pain and palpitations, you can sense him appealing to the jury's emotions. "All of the testing the ED doctor ordered came out normal," says Demetrio, "including the two chest x-rays. He told her all is well. Normal. Go home." The next morning, Dr. Berlin, the radiologist on duty, saw something the ED doc missed -- "and being a most competent doctor, he gave his impressions in a written report, stating that a CAT scan should be performed to rule out a possible tumor." The report was dictated and faxed to "no one in particular" in the ER, where the staff claims it was never received. "Nobody picked up that discrepancy," says Demetrio. "The report was found sometime later to be in Mrs. Rowley's file. Nobody knows how it got there. But the evidence will establish that when Dr. Berlin faxed that report, he said to himself, 'I'm done.' Twenty months later, this 53-year-old, who thought she was very healthy, goes back to the ER, where they did indeed find a tumor . . . Eleven months later, she died." As Demetrio takes pains to outline Barbara Rowley's life as an investment banker and a widowed mother of two daughters, calling her "vital, loving, and caring," it's hard to imagine the members of the jury not wanting to blame someone for her death. "There are two parts to a radiologist's responsibility to a patient," says Demetrio. The first is accurate diagnosis -- any guesses what the second one is? Now Nickels steps up to the plate. He's recounting the same events Demetrio did, but you wouldn't believe the difference in perspective -- he begins by talking about Dr. Berlin interpreting the case, and further stresses that Berlin communicated the results correctly in two ways, both by preparing the report and by faxing the report "as he does every day in a situation where there's a finding not to be expected." It seems like Nickels is focusing unduly on the "proper" interpretation of the results as opposed to how they were communicated -- wonder how the jury's going to take that? "This is what he does every single day," Nickels says. "He takes chest x-rays, reviews them and properly interprets them." We're on steadier ground as Nickels clarifies the role of the radiologist, noting that they do not typically have a hands-on role with patients -- in your face, RSNA '09 opening session -- and that Berlin did nothing different on the fateful day of Mrs. Rowley's diagnosis than on any other day. Nickels stresses that Berlin was not involved in the triaging of Mrs. Rowley, that he never met her -- and that what he saw was a "good catch" on a "difficult read," a "find that many radiologists would not have even seen." I'm beginning to get a sense of the crux of his defense -- that Berlin gave Mrs. Rowley the best chance he could, but an incompetent ED dropped the ball. Here comes the first witness, Leonard Lucey (who happens to be ACR legal counsel, if you're paying attention). He's also director of the ACR's department of quality and safety. Demetrio's grilling him on the ACR's standards for communication of findings, which Lucey states that the ACR takes very seriously (well, duh). Demetrio references the ACR's 2005 publication of communication guidelines, which have been tweaked and modified over the years since 1991. He's very methodically establishing how the guidelines are written, and by whom, including the fact that Lucey, as a lawyer, has approved the guidelines from a legal perspective. I get the sense he's setting Lucey up. Also, he keeps mispronouncing his name as "Lacy." Nickels is next, with Exhibit A. He gets in a quick dig at Demetrio by pronouncing Lucey's name correctly. He again references the ACR's communication guidelines, particularly the sentence saying that "adherence to these guidelines will not assure an accurate diagnosis or a successful outcome" -- in other words, even if a practitioner follows the guidelines to the letter, things won't always work out perfectly. Well, no kiddin. He also gets Lucey to say that they are "not hard and fast rules, just guidance," and that there's no way a good radiologist could adhere to the guidelines at all times. Now Demetrio's up again, picking the guideline apart word by word -- I wouldn't be shocked to hear him debate the definition of the word "is." I think one thing we can certainly learn from this process is that trials are long, involved, and require a big dose of patience. All right. Dr. Berlin has been called to the witness stand -- here we go. Demetrio starts out softballing him with a few easy questions about his education and credentials. "Would you agree with me that in business," Demetrio says, having established that Berlin holds an MBA, "and most radiologists have a business, one of the reasons you went to get an MBA was to help you in a business sense?" "Business, policy and safety," Berlin answers. "Would you agree that in any business, effective communication is important?" "Yes, I would." "Would you agree that a radiologist's primary business is patient safety?" "Yes." This entry's getting a little long. Starting Part 2 now!