«Sympathy is hardly ever the deciding factor in a malpractice case.
They’re won on the medicine. The odds are actually stacked in favor of the physician.
Keith A. Hebeisen, J.D.
The idea of weathering a malpractice trial is something that makes any medical professional jittery. But at this year’s RSNA Scientific Assembly and Annual Meeting, members will have a chance to get a glimpse inside a medical-legal jury trial, learn about the proceedings and form their own opinions without spending a dime on legal advice. It’s part of a special session to be held on Sunday, November 28 from 10:30 a.m. to 3:30 p.m. in room S100AB in the South Building at McCormick Place.
The mock trial involves the case of a lung lesion missed in a previous chest examination. The unscripted trial will include two attorneys, expert witnesses and a Chicago-area judge who regularly presides in medical malpractice litigation. Leonard Berlin, M.D., chairman of the Department of Radiology at Rush North Shore Medical Center in Skokie, Ill., is coordinating the session.
It’s a malpractice case concerning a 60-year-old man who presented with a cough. The chest x-ray was read as normal by the radiologist. The symptoms get a little better, then they get a little worse, explains Dr. Berlin. Ten months later, another chest x-ray shows a lung tumor. Sure enough, it’s cancer and a year later the patient dies, leaving a wife and four kids.
Dr. Berlin says he picked this particular scenario because of the sympathy elicited by the patient involved, a man with a family, and also because the facts in the case leave plenty of gray areas. The x-ray shows a subtle shading. It’s not going to be a blatant case. A reasonable person could see both sides, says Dr. Berlin.
Who are those reasonable people? The RSNA meeting staff is sending out questionnaires to RSNA 2004 contractors working at McCormick Place. Florists, booth decorators, audio-visual crews and phone company workers will be asked whether they d like to spend part of their day participating as potential jurors. They will have no familiarity with the case being presented and will go through a jury selection process that will be similar to, albeit quicker than, that of a typical malpractice case.
In addition to assembling a jury similar to one that might actually hear the facts in the suit, session attendees will also benefit from the experience of two seasoned medical malpractice attorneys. Timothy B. Nickels, J.D., of the nationally recognized Chicago law firm Swanson, Bell and Martin will act as the counsel for the defense. Nickels has represented some of the largest corporations and prestigious institutions in cases pending in Illinois, Indiana, and other jurisdictions throughout the United States. Keith A. Hebeisen, J.D., a partner in Chicago’s Clifford Law Firm, will act as plaintiff’s attorney. Hebeisen specializes in complex and highly technical areas of medical malpractice, winning multi-million dollar awards for his clients.
Dr. Berlin says the veteran attorneys will have approximately two hours in the morning to make their cases before Cook County Circuit Judge Stuart Nudelman, who has served as president of the Illinois Judges Association. The Chicago Bar Association calls Judge Nudelman well-respected for his legal skill and ability, and says he is praised for his innovative ideas.
It will take a little innovation, inspiration and improvisation to bring all the facts in the case to the jury and audience in just a few hours. Both sides are scheduled to present their evidence and witnesses before lunch. Judge Nudelman will instruct the jury, the group will break, and then come back after lunch to deliver its verdict.
We’ll ask the jury why they came to their conclusion, they can explain how they as lay people view everything. We’ll have the two attorneys talk about their strategies and the judge will address the audience to talk about his role and answer questions, says Dr. Berlin.
Hebeisen, acting as attorney for the plaintiff, says he hopes to change what he feels are preconceived notions many physicians may have when it comes to malpractice litigation. Just because there’s sympathy for the patient, doctors feel theyre on the short end of the stick. That notion is the exact opposite of reality, he says. Sympathy is hardly ever the deciding factor in a malpractice case. They’re won on the medicine. The odds are actually stacked in favor of the physician.
Hebeisen says only about 35 percent of cases that go to trial are won by the plaintiffs. He says many cases that are clear-cut malpractice situations are settled out of court. The reality is that people put doctors on a pedestal. They have respect for them. They believe doctors are under siege and they don’t want to hurt them. Juries are very skeptical of medical malpractice cases, and they are getting more skeptical as time goes by, he says.
When its time to select a jury at RSNA 2004, Hebeisen say there will be no such thing as an ideal juror, You’re just able to get rid of the bad ones if you’re lucky. He’ll be looking for people to serve who have open minds, no prejudice against someone who would file a malpractice suit, and jurors who would have no preconceived notion about awards that could be given to a plaintiff.
Dr. Berlin hopes the mock trial helps radiologists gain a greater understanding of the malpractice litigation process. And he thinks the session at the RSNA annual meeting creates a unique opportunity. The bottom line is to educate radiologists and to improve patient care and minimize malpractice exposure. They go hand in hand, he concludes.
Posteroanterior chest radiograph obtained when a 60-year-old patient presented with a cough. The radiograph was read as normal by the radiologist. The lawsuit claims the radiologist was negligent for missing a lung carcinoma.
Image courtesy of Leonard Berlin, M.D.
Reproduced with kind permission from:
RSNANews, Oak Brook, Ill: Radiological Society of North America, September 2004; 14(9); 10-11