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Monday, November 26, 2012

Mock Jury Trial Sheds Light on Seemingly Mysterious Process

A mock jury hearing a hypothetical case Sunday deliberated just 20 minutes versus the typical 2 ½ days.

RSNA 2012 attendees gathered Sunday to witness how a medical malpractice trial is conducted and learn about the judicial process.

"I think the trial was a spectacular educational event," said moderator Leonard Berlin, M.D., a radiologist at Skokie Hospital, Illinois, and a professor of radiology at Rush University and the University of Illinois, Chicago. "Attendees saw how a trial works, how the attorneys represent their clients, how they respect their witnesses and what it takes to prove their cases," Dr. Berlin said.

Presiding over the mock case was a Chicago-area judge, the honorable Clare McWilliams, who instructed the volunteer jury extensively on their duties as well as the definitions of terms such as "proximate cause," "burden of proof" and "deviation from the standard of care," which she defined as meaning the same thing as "professional negligence."

Attorneys Keith Hebeisen and Timothy Nickels played the parts of prosecutor and defense attorney, respectively. Jonathan W. Berlin, M.D., an associate professor at North Shore University Health System in Evanston, Ill., played the defendant radiologist, and Rebecca Smith-Bindman, M.D., Stephen Balter, Ph.D., Cynthia McCollough, Ph.D., and Michael Brandt-Zawadzki, M.D. served as expert witnesses, basing their testimonies on real-world cases.

The trial centered on a hypothetical case involving a woman named Amy Davis, who between 1998 and 2000 presented to the emergency department with severe chest pain on multiple occasions and underwent a total of five chest CT scans and one CT coronary angiogram for suspected pulmonary embolism. All findings were negative. At the age of 33, Ms. Davis was diagnosed with infiltrating ductal breast carcinoma and, despite treatment, died of cancer 18 months later.

The plaintiff, Ms. Davis's husband, and his attorney alleged that the radiologist should have brought to the attention of the referring physician or the patient the possible link between radiation exposure and the risk of cancer.

The plaintiff presented a case that leaned heavily on epidemiological studies, while the defense deconstructed the implications of cumulative dose and the current standard of care. Disagreement among the expert witnesses made it clear that radiation risk is still a topic of much debate.

Mr. Nickels, attorney for the defense, argued that much of the evidence presented on behalf of the plaintiff was gathered from sources and literature available immediately after the events in question. "I applaud the fact that we're having this discussion, and eminent physicians and physicists are debating it," said Mr. Nickels. "But a debate in 2012 does not equate to negligence in 1999."

As the jury made its deliberations, attendees had the opportunity to watch them live via camera. The jury discussed issues including the electronic availability of prior imaging studies, the meaning of cumulative dose and a patient's own responsibility in speaking up on behalf of his or her own care.

Some of questions voiced by jurors: "If a patient presents to the emergency department with symptoms that suggest a pulmonary embolism, does it matter if CT is done one time or ten times?"; "Does the patient's medical record come up, showing the past CT scans, every time the radiologist reads a study?"; "If the emergency scan has already been done, when does the radiologist have the opportunity to talk to the ordering physician?"; "If the standard of care is CT, does that mean there are other tests available?" and "Why wasn't the husband or the patient questioning how many times CT was done?"

The volunteer deputy reminded jurors of their task, which was to decide whether the plaintiff had been injured, whether the radiologist was negligent, and whether the radiologist was responsible for the plaintiff's injury. Because of time constraints—the mock jury had just 20 minutes to deliberate—an official verdict was not reached; the jury voted 5 to 7 in favor of the defendant.

"What you saw today with the jury's deliberations would have probably taken about two-and-a-half days in a real case," Judge McWilliams told attendees. She thanked the jury, expert witnesses and attorneys for their pro bono service in the name of education. "I think some of you probably know someone who has been sued for malpractice or will be sued in your lifetime," Judge McWilliams she said. "For a physician on trial, it has a very serious effect on their life."

"The question of cancer risk from CT dose remains unanswered and will probably remain unanswered for some time, but I think the defense proved its point," Dr. Leonard Berlin said. "The standard of care in 1999 was not the same as today. Notwithstanding, we do have a duty to discuss risks with referring physicians and patients, to ask whether we really feel the test is necessary, and if there's an alternative exam that uses less or no ionizing radiation."

Dr. Leonard Berlin will also present one of Tuesday's Annual Orations in Diagnostic Radiology, "To Disclose or Not to Disclose Radiologic Errors: Should 'Patient First' Supersede Radiologist Self-Interest?"