0:00

Hi, Mr. Dalton, this is Dave Usam.

0:03

I am a radiologist at Johns Hopkins Hospital

0:06

as a neuroradiologist,

0:08

and I want to talk with you a couple of, uh,

0:10

additional points and questions that I have for you.

0:13

You had in one of your slides a statement about the speed at

0:17

which we read cases, be it the Nighthawk service

0:21

or, uh, radiologist in general.

0:23

And I know, you know, it seems like sometimes

0:28

plaintiff lawyers will ask us, how long did it take you

0:31

to read that study?

0:34

And it's, and the implication being that if we read fast

0:39

or being careless or error prone,

0:42

and as you may know, there has been more

0:45

and more images per study.

0:48

Uh, for example, in CT angiogram,

0:50

we might have like 6,000 images,

0:52

and if we read it in six minutes, people will say, oh,

0:55

you're reading a thousand images a minute.

0:58

Uh, you must be careless.

1:00

Um, do you have any thoughts on that as a plaintiff lawyer,

1:04

both from the standpoint of the Nighthawk service

1:06

that's doing relatively superficial preliminary reads

1:11

at high rates and they're paid by the case often,

1:16

but you know, as well as this concept

1:19

of if you read quickly, you're more prone to errors.

1:23

Yeah. Um, I, I should have mentioned that earlier.

1:25

Yes, there's two parts to that.

1:27

The first part is I haven't seen a court case.

1:30

I haven't seen a case that that based liability on the speed

1:34

of the read and, and,

1:35

and put liability on the speed of the read.

1:38

So I don't think that is the basis of liability.

1:42

The second part, you're not gonna like,

1:44

because the second part is exactly what you've proposed,

1:47

which is there are things that, that,

1:50

that lawyers do in these circumstances

1:53

to try to create context.

1:56

In this case, I think it's false context,

1:59

but it is being created.

2:00

And that being that exactly what you said, you can,

2:05

I could ask you the question about the 6,000 reads over a

2:09

period of a very short period of time.

2:12

I don't have to ask you a whole lot more.

2:14

I can just let it lay there

2:16

and I know what the jury's gonna think about that.

2:19

Okay. So, so that's my answer to the speed read issue.

2:24

Uh, and, and I, and I appreciate that, that the night hawks

2:28

given their, the way they are compensated, um,

2:33

that can be an issue.

2:34

But once again, I haven't seen a case that was,

2:37

that's really based liability on that issue.

2:42

My other question with regard to the Nighthawks is, as,

2:44

as you may know, um, this is a market

2:47

and it's an international market,

2:49

and sometimes private groups may have radiologists from

2:54

India because of the time difference

2:56

or Israel, whatever it may be.

2:59

And, um, to what extent is there an implication

3:02

that if you're not trained in America, you are,

3:07

you may be more negligent

3:10

or prone to negligence than if we were using Nighthawk

3:14

services from New York City

3:15

or Los Angeles as opposed to, um, Mumbai India?

3:21

Well, well, um, you're right.

3:24

American chauvinism is alive and well. Okay.

3:27

And so yes, I think there is that, that thought.

3:30

I think it's, uh, it's obviously false,

3:33

but I, this is where good defense attorneys come in.

3:38

Uh, most of my cases are against really pretty good defense

3:41

attorneys because they're all high value cases.

3:44

Um, the, a good defense attorney can put this in a,

3:49

in an appropriate context.

3:51

And I think at the end of the day, juries,

3:54

while they may be at least initially

3:56

and superficially affected by that, are really not affected

4:00

by the end of the case when it's presented

4:02

and contextualized properly.

4:04

So, so, um, yeah, I, I, I understand the point, but I, but,

4:09

and frankly, when cases go to trial, as I've said

4:13

before, 80% of those cases are being decided in favor

4:17

of the, of the, of the provider.

4:19

So juries are juries still, I mean,

4:23

I know the cases that hit the newspapers,

4:27

most of them sound crazy.

4:29

Okay. Um, in terms of amounts and what happened,

4:32

and that's, that's the man bites dog.

4:37

What's happening every day is that cases that go

4:40

to trial are generally decided in favor of the provider.

4:45

Let me ask you the question as to whether a good

4:49

peer review system would be protective in that instance.

4:53

For example, um, there's a certain percentage of our cases

4:56

that we double read for each other in peer review to ensure

5:00

that we don't have a weak, uh, colleague.

5:03

Or same thing with the, with the Nighthawk service.

5:06

We will do peer review on the Nighthawk service,

5:09

and if we have data saying that 99% of the time

5:14

we agree with the Nighthawk, um, does that sort of, um,

5:20

um, protect the practice at all from the negligence

5:24

by the Nighthawk service?

5:26

I think it very much helps in protecting, um,

5:30

in a given case, it might not,

5:32

but I think it very, what you've just posed is

5:34

what we were talking about earlier,

5:36

what are the policies and procedures?

5:38

What, what are the fail safes that we have here?

5:40

And when you're, when you're talking about that kind

5:42

of peer review, um, that's absolutely helpful.

5:46

And a jury who's hearing that or, or,

5:49

or plaintiff's lawyers who are hearing that say, Hmm,

5:52

this case is gonna be tougher than I thought,

5:54

because they have that kind of process.

5:56

So yeah, I, I think it's, I think it's absolutely essential.

5:59

I, you know, um, I, when I hear peer review, I sort

6:03

of back up a little bit

6:04

because, um, you know, most states,

6:07

I think probably all states have peer review statutes

6:10

that were not permitted to know

6:12

what happened in peer review when there's, and,

6:15

and for really good reasons, obviously.

6:17

Okay. Um,

6:19

but the, what you're proposing is sharing your peer review

6:22

in that circumstance.

6:24

Um, and, um, that'd be interesting

6:26

because you're essentially waiving your

6:28

peer review privilege in that.

6:30

So whatever happened in peer review might be able

6:33

to be talked about,

6:35

but I think it's still exactly the way things should be.

6:38

And when you hear that, I mean, I, when I listen to that,

6:41

I'm listening to it as a, as a plaintiff's lawyer,

6:44

but I'm also listening to it as a medical, uh,

6:48

services pr uh, consumer.

6:49

And I'm saying, and that's how juries are listening to it.

6:53

And so when I hear you say that, I say, oh good.

6:56

That's, that's the way it should be.

6:58

So that's definitely a way

7:00

to protect against issues involving nighthawks.

7:04

Okay. I have one, one more question

7:06

regarding the equipment.

7:08

So, um, you gave a lot of scenarios where the practice

7:12

and the procedures were occurring within the hospital.

7:15

In the outpatient setting, the equipment is often owned

7:20

by the partners of the radiology practice,

7:24

or the venture capitalist people have fronted the money

7:28

and owned the equipment.

7:30

Um, is it fair to say that, um, as you said,

7:35

sometimes when you have very large economic damages,

7:37

you're looking for different people

7:41

or entities to include, to cover

7:45

that 40 million of the economic damages.

7:48

So would it be fair to say that in those scenarios,

7:52

the partners and

7:53

because, you know, if there's a machine failure

7:56

that the partners, the venture capitalists,

7:59

the equipment manufacturers,

8:00

the equipment service contract people might be brought in,

8:06

um, into, into cases like that, um, as well?

8:11

Yeah, AB absolutely, uh, you own it.

8:15

Uh, if you own it, you're responsible for, and, and

8:18

unless you know, even if you do give it to somebody else,

8:21

to, to, to for upkeep, yes.

8:23

If you own it and you're practicing with it,

8:27

it's your responsibility to keep

8:29

that equipment working properly.

8:32

And if harm results from that equipment, uh,

8:36

malfunctioning, then yes, each of those groups

8:39

that you talked about can be liable.

8:43

Alright. One final question about

8:44

something that was in the news.

8:46

You may have seen a case, I think it was outta New York

8:48

City, where a gentleman with a big metallic, uh,

8:53

insert or something in his chest

8:54

or, uh, um, despite a lot

8:58

of signage saying no metal in the magnet, et cetera,

9:02

entered a room with the MRI machine

9:06

and was flung into the magnet

9:08

and resulted in significant damage.

9:11

Um, where does the, does the jury ever

9:17

assign some responsibility to the, um,

9:21

patient themselves for doing something

9:24

where there's big signs saying don't enter

9:26

no metal, et cetera?

9:27

Or do they say it was the technologist's responsibility

9:31

to block that person from entering the room?

9:35

Uh, in, in that scenario, as the facts are given,

9:40

most states, I think there's only three states left that,

9:43

that have a contributory negligence statute,

9:46

which means if the, if the, uh,

9:49

patient in this case was in any way contributory,

9:52

that neg negligent from 1% on, they don't have a claim.

9:57

That's old law, new law, new law over the past, say 30 years

10:03

is comparative negligence.

10:05

But in every one of those comparative negligence states,

10:09

if the patient in this case is judged to be

10:14

50% or more liable, some states have 51%,

10:19

but 50, let's just call it 50.

10:21

If a jury decides that they're 50% liable,

10:25

they can't collect anything.

10:27

If the jury decides they're 40% liable,

10:31

they can collect 60% of the verdict.

10:34

So there's a comparative, are are patients blamed

10:39

and are those cases successful all the time?

10:44

Of the 80% of cases that mount that, that, that, um, that

10:49

are decided by juries in favor of healthcare providers?

10:53

I don't know the percentage,

10:54

but a healthy percentage of those cases are

10:57

because of patient, uh, conduct.

11:00

In this case that you're telling me,

11:02

uh, I wouldn't take that case.

11:05

Okay. I wouldn't accept that case

11:07

because I,

11:09

I believe I'm correct in saying there's no test

11:12

that you would give other than asking the patient,

11:15

do you have metal in your chest?

11:17

The technologist would have no knowledge of that from

11:19

what I would, my, my belief.

11:21

And so, no, that's a terrible case.

11:25

Alright, well, let's end on that.

11:27

Um, thank you very much for your time

11:30

and your expertise, um, Mr. Dalton.

11:32

And, um, we all, we all hope that we don't have to see you,

11:36

um, in, in court, but

11:38

nonetheless, uh, sharing your knowledge is very important

11:41

to us and hopefully we'll be better physicians for that.

11:44

Thank you, doctor. It was a pleasure being with you today.