Diagnostic Imaging Online
December 19, 2003
Diagnostic Imaging article figures in medical malpractice case
An opinion column that appeared in the August edition of Diagnostic Imaging has emerged as a factor in a medical malpractice case in Florida. Plaintiffs in the case are accusing the defense of witness intimidation after a copy of the article was mailed to an expert witness for the plaintiffs.
The article, "Say no to peers who weaken mammography," called for radiologists to boycott meetings featuring presentations by radiologists who appear as expert witnesses for plaintiffs in medical malpractice cases. The column was written by Dr. Mark Klein, a Washington, DC, radiologist and a member of Diagnostic Imaging's editorial advisory board.
"Why would you want to pay your money to hear someone lecture who will then turn around and testify against you?" Klein told Diagnostic Imaging.
A copy of Klein's article was mailed in mid-August to Dr. G.W. "Bill" Eklund, a mammography authority based in Washington state who was scheduled to testify for the plaintiffs in a malpractice case. The return address on the envelope indicated that it had come from Dr. Susan Schilling, the director of the defendant radiology group.
Schilling denied sending the article to Eklund. After calls by the plaintiffs' lawyers for DNA and fingerprint testing, Dr. Carol Adami, a defendant in the case, admitted sending the article. Attorneys for the plaintiffs filed a motion for sanctions against Adami and asked the court to enter a judgment of liability in favor of the plaintiffs, leaving only the issue of damages to be tried. That motion is pending.
In a memorandum opposing sanctions against Adami, the defense states that Eklund did not mention the Klein article when he listed materials he had reviewed, nor did he say he was harassed or intimidated during his examination on Sept. 8.
For now, the record is silent as to why Adami sent the article. But the judge ruled on Wednesday that Adami will be redeposed by the plaintiffs in early January, specifically focusing on the sending of the article.
In another twist, the defense asked the judge to recuse herself because she stated that she considered the sending of the letter to be threatening. On Wednesday, the judge denied that motion.
Both sides have cited different aspects of Klein's article in presenting their positions. The defense focused on Klein's assertion that breast cancer has a 67% retrospective visibility rate and a 21% miss rate, factors inconsistent with a de facto standard of care requiring 100% detection of all breast cancers by mammography.
The plaintiffs focused on the article's call to shun radiologists who testify against other mammographers in malpractice cases.
The medical malpractice suit was filed in August 2002 on behalf of Marsha Gilarmo, her husband, and three children. In addition to Adami, the complaint names radiologist Vincent Mazzeo, the Boca Radiology Group, the Boca Raton Community Hospital, and surgeon Leonard Roudner.
The complaint alleges that Gilarmo would have had a better than 90% chance of survival if her breast cancer had been diagnosed on the initial mammogram. Oncologists treating her now say her chances of survival are 7%, according to Michael Freedland, a plaintiffs' attorney.
The controversy, according to Klein, is that mammography is a limited technology that misses as many as 21% of breast cancers. How then, he asks, can radiologists testify against other radiologists for failing to find breast cancers when it is inevitable that some will be missed?
According to Dr. Leonard Berlin, radiology chair at Rush North Shore Medical Center and a legal columnist for the American Journal of Roentgenology, it is not only acceptable for radiologists to serve as expert witnesses, but it is encouraged. The Code of Medical Ethics of the Council on Ethical and Judicial Affairs of the American Medical Association states that because physicians are professionals with special training and experience, they have an ethical obligation to assist in the administration of justice.
Similarly, the American College of Radiology states that it is in the public interest that medical expert testimony be readily available, Berlin said. The ACR also recommends that radiologist expert witnesses maintain an active practice of radiology and be certified by the American Board of Radiology.
For more information from the Diagnostic Imaging archives:
Say no to peers who weaken mammography
Expert witness review helps protect patients
ACR ethics committee scrutinizes expert testimony
-- By C.P. Kaiser
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