Mock Jury Trial, Part 3

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As Nickels takes his turn questioning Dr. Chesbrough, he stresses that though they agree that Dr. Berlin should've had the preliminary findings from the ED to compare with his own report, unfortunately, it wasn't there. Nickels shows the ED doc's report as an exhibit and notes that the form includes no cc information to indicate that a copy would be sent to the radiology department. "You recall Dr. Berlin's testimony that sometimes a radiology department would see this form, and sometimes they would not?" "I do," Chesbrough says. "Do you think the standard of care required that Dr. Berlin pick up the phone and call?" says Nickels. "There are other methods of communication, but there has to be some kind of confirmation that the report was received," Chesbrough says. Nickels goes on to stress that in this case, Berlin was not communicating an urgent or emergent finding -- in fact, he wasn't even communicating a certain finding. "Dr. Berlin saw a density which could have been a superimposition of structures, or it could've been a real finding," Nickels says. "He did not stop just at writing and dictating the report. He took an additional step. Right?" "Yes," Chesbrough agrees. Finally, Nickels establishes that it is not the standard of care for a radiologist to communicate suspicious findings directly to the patient. Oh, and he gets another little dig in -- asking Chesbrough whether he's being paid for his time as an expert witness. Chesbrough, of course, answers yes. Ouch. Next up is Michael Raskin, the defense's expert witness. Nickels establishes his credentials, including the fact that he interprets chest x-rays on a daily basis and has done so for 36 years. "My opinion is that Dr. Berlin did not deviate from the standard of care," Raskin says. "I think he went above and beyond by making sure that his message would not be misinterpreted by faxing that report. This is difficult because we know what the outcome is, and it does not mean that I'm cold and uncaring, but Dr. Berlin did everything right. He properly communicated, he interpreted the examination. And this was a very subtle finding. To communicate it directly by telephone, he can't be expected to play the detective and find out whether those findings were properly transmitted. "He did his job. Somebody else didn't do theirs." Raskin goes on to refer to the report as a "home-run finding" and explains to the jury that what Dr. Berlin saw could've been anything, including some harmless interference on the x-ray, but that Dr. Berlin went the extra mile and suggested that a follow-up CT be taken in order to rule out a suspicious lesion. When Demetrio begins his cross-ex, he confirms that Raskin is a lawyer. "I am," Raskin says. "Does that make my testimony less believable?" The audience has a nice, long laugh after a couple of hours of tense listening. But now we're back down to business, with Demetrio confirming that Raskin has written on medicolegal issues in the past and serves on the ACR's governance committee. "You'd agree that communication is an important part of what a radiologist does on a daily basis?" Demetrio asks. "And communication has to be effective in order to be worthwhile?" "It works best that way," Raskin agrees. But that was just a warm-up. Demetrio brings down the hammer next, asking Raskin to confirm that he published an article offering radiologists tips on avoiding potential malpractice scenarios. And you better believe he has copies of the article to distribute to everyone. "Is it true that you wrote that the failure to communicate significant findings in a timely manner is the biggest problem facing radiologists today?" Demetrio asks. "This is the one area in medical malpractice litigation in which the physician can play the most important role in reducing risk. True?" Raskin says, "True." As Demetrio continues to review the article, Raskin begins to hedge a bit -- I didn't write that, he says, or that's in a footnote. Demetrio's not having it. Their interaction has turned decidedly hostile. "I did write those words, yes," Raskin finally says. "The communication should be timely, appropriate, and must be documented. True?" Demetrio asks. "True," Raskin agrees. Finally, Nickels gets one last word in. "In the same article, do you state that nonroutine communication can be accomplished via fax?" "Verbatim," Raskin says. "That's all," Nickels says. Time for closing arguments from the two attorneys. Demetrio speaks first. I can't help but notice the way he specifically acknowledges Heidi, the daughter, before beginning his remarks -- this guy knows what he's doing. As he talks about the movie Cool Hand Luke and the villain's classic line -- "What we have here is a failure to communicate" -- he says that the failure to effectively communicate between radiologists, EDs and patients "must be stopped." "We patients," he says, "we're at the top of the list. The medical profession cares about us. We believe that. But we also believe that we have the right to accept what the medical profession tells us. Barbara Rowley walked into an ER, did what was required, and walked out thinking all was well. The very next day, some very critical information was found by Dr. Berlin. He knocked it out of the park, picking up this problem. No one's quarreling with his expertise. But the culture needs to be changed. More than one person can be responsible for an untoward result." On a more grim, cynical note, he goes on to remind the jury that should they find in favor of Heidi Rowley, they will have to assign damages -- his suggested amount is $10 million, since that's what Mrs. Rowley had the potential to earn as an investment banker before she retired, the money that in a sense has been denied Heidi and her sister. All I can say to that is WOW. Next, it's Nickels' turn to have his say. First he stresses the excellent job Berlin did in both reading the report and finding the potential lesion. "Your job is to determine whether Dr. Berlin acted reasonably," he tells the jury. "The question is not whether his habit of communication was successful. That is not the test of negligence. You all are deciding whether or not this man committed professional negligence by whether or not he acted reasonably, according to the guidelines. In medicine as in life, you can act reasonably, and still difficult, disappointing and tragic things occur. We don't look twenty months later. We evaluate how this man acted in the circumstances and decide whether that was reasonable. That's what we do." Stay tuned for an inside look at the jury's deliberations, followed by the verdict!