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Medical Negligence Involving Radiology Errors: A Practice Tip
Mark A. Abramson and Jared R. Green
The deposition of a defendant radiologist in a medical negligence case is a unique event. To the untrained eye, radiology studies, other than those showing a simple broken bone, can resemble a Rorschach test. Thus, it is often beneficial to have the defendant mark the films at his or her deposition. This article discusses a recent case in which we were forced to obtain an order from the Court compelling the defendant to comply with such a request.
Our case involved the failure of several medical care providers to diagnose and treat our teenage client’s spinal cord injury. Our client was a camp counselor who fell while playing a game with the campers. She was taken to the hospital with classic symptoms of a spinal cord injury and a cervical MRI was done. The radiologist reported the MRI as normal, the patient’s pediatrician decided that she was faking her symptoms, and the emergency department physician ordered the removal of her cervical collar allowing her head to flop around uncontrollably. Within a couple of hours, she stopped breathing on her own and had to be emergently transferred to Boston Children’s Hospital where they saved her life. Through incredible determination and hard work, she has regained some of her function and is now a college student.
In discovery, the defendant radiologist acknowledged that she saw “abnormalities” on our client’s cervical MRI and that she still told the emergency department physician who ordered the study that it was normal. We asked her to mark the abnormalities on the MRI films at her deposition. She claimed that she could not do so in that setting because she normally views such studies on a computer with different diagnostic tools.
Following the deposition, we sent an interrogatory to the defendant asking her to mark the abnormalities on copies of the films that we provided. After ignoring the interrogatory for four months, her attorney objected on the ground that the interrogatory was beyond the scope of Superior Court Rule 36 and permissible discovery since it required the defendant to create a document. We moved to compel the defendant to mark the films and Judge McHugh granted our motion.
III. Legal Analysis:
Since 1825, New Hampshire has followed the English rule that “a witness cannot by law refuse to answer a relevant question upon the ground that it may tend to establish he owes a debt, or is otherwise subject to a civil suit.” As New York’s highest court has observed, this means that the defendant in a civil suit has “no inherent right to remain silent or . . . to answer only those inquiries which will have no adverse effect on his case.” Accordingly, in discovery there is a right to call and question an adverse party, including questions calling for opinion testimony, and such questioning is allowed to “roam wide and far without constant punctilio exercised to exclude questions objectionable under rules of evidence.”
New Hampshire Superior Court judges have regularly rejected efforts by medical negligence defense attorneys to prevent their clients from providing opinion testimony in deposition and several of these cases have involved the interpretation of radiology studies. For example, in Nary v. Orthopedic & Trauma Specialists, Judge Mohl held that “[i]t is not objectionable . . . to ask the treating physician in deposition, that looking at the x-ray now, the treating physician agrees (or disagrees) that the plaintiff’s condition or diagnosis was apparent.”
Judge Hollman reached the same conclusion in Donovan v. Osachuck. In that case, defense counsel prohibited the defendant radiologist from answering the question whether he now agreed that there was soft-tissue thickening evident in the nasopharynx on an x-ray. Judge Hollman granted the plaintiffs’ motion and ordered the defendant to answer the question at issue and any other questions the plaintiffs had intended to ask before the deposition was suspended.
More recently, in Miller v. Associated Radiologists, Judge Barry granted the plaintiff’s motion and held that defense counsel improperly instructed the defendant radiologist not to answer questions asking for his opinions.
Having established that a defendant radiologist is required to provide opinion testimony in a deposition, the next question is whether he or she may be compelled to mark films to illustrate his or her opinions. Contrary to the defendant’s argument in our case, there is nothing in Superior Court Rule 36 that protects a defendant radiologist from having to mark a study. In fact the rule simply states that “The adverse party shall have the same privileges in answering written interrogatories as the deponent in the taking of a deposition.” There is no privilege that applies to such a request.
A request that a defendant radiologist mark a film is also consistent with New Hampshire’s liberal view toward discovery. Our Supreme Court has “long recognized that justice is best served by a system that reduces surprise at trial by giving both parties the maximum amount of information.”
In our case, the defendant conceded that she saw signal abnormalities on the MRI films when she first interpreted them while our client was in the emergency department. She also conceded that, despite this, she told the emergency department physician that the MRI study was normal. Compelling her to mark the films in discovery to show those abnormalities was thus necessary to prevent surprise at trial. In other words, it would have been unfair to force the plaintiffs to wait until trial to learn where the abnormalities were located. Forcing the plaintiffs to wait until the defendant testified at trial not only would deny them an opportunity to prepare for her cross-examination, it would also require the plaintiffs’ experts to adjust their testimony based on information they would learn for the first time immediately before they testify.
Medical negligence cases are complicated enough. Those involving radiology mistakes are especially difficult. Issues can be simplified, however, if the defendant radiologist illustrates his or her subjective interpretation by marking copies of the films. Such a request is clearly allowed by New Hampshire law and plaintiffs should seek the Court’s assistance if the defendant refuses to comply.
. Rallis v. Gerety, et al, No. 09-C-598 (Rockingham Cty. Super. Ct., January 3, 2011).
. See Boston & Maine R.R. v. State, 75 N.H. 513, 516 (1910) (citing Copp v. Upham, 3 N.H. 159, 162 (1825)).
. McDermott v. Manhattan Eye, Ear & Throat Hospital, 203 N.E.2d 469, 474 (N.Y. 1964).
. Johnson v. New York City Health and Hospitals Corporation, 374 N.Y.S.2d 343, 345 (N.Y. App. Div. 1975) (quotations omitted).
. No. 96-C-308, Order on Plaintiff’s Motion to Compel Deposition Answers (Strafford Cty. Super. Ct., June 3, 1997).
. Id. at 1.
. No. 94-C-497, Order on Plaintiffs’ Motion to Compel Deposition Answers (Hillsborough Cty. Super. Ct., August 7, 1996).
. Id., Order on Motion to Compel at 1.
. No. 08-C-487, Order on Plaintiff’s Expedited Motion for Sanctions (Hillsborough Cty Super. Ct., September 25, 2009).
. Id. at 2.
. Murray v. Developmental Services of Sullivan County, Inc., 149 N.H. 264, 267 (2003).