By Kimberly Pistone
For the Sidney Daily News
SIDNEY – A jury of eight decided in favor of the defendants — two physicians — in a trial lasting five days at the Shelby County Common Pleas Court. Marlene Jackson et al, vs Wilson Health et al, was a medical negligence and wrongful death case regarding the care of Bobby Jackson who died of lung cancer on Sept. 7, 2017.
The two defendants on trial in this case were Dr. Peter G. Knabe, a radiologist with the Lima Radiological Associates, and Dr. Stephen E. Justice, a family practice doctor with Wilson Health. Knabe was charged with negligence in reading a CT scan performed on Aug. 2, 2015, when Jackson visited the Wilson Emergency Department. Justice was charged with negligence for not referring Jackson to further CT scan follow-ups during an appointment on Aug. 11, 2015. Both doctors were charged with failure to meet the accepted standard of care and that their lack of actions was a direct and proximate cause of Jackson’s death because Jackson did not receive timely treatment for lung cancer.
Additionally, Knabe and Justice were charged for loss of consortium for Jackson’s kin. Loss of consortium is a legal term referring to the intangible benefits that survivors are deprived of after death of a family member – in this case the loss of Jackson as a husband, father and grandfather.
The specific question the jury had to answer was: Were the physicians reasonably careful in their care of Jackson? The jury deliberated for approximately 90 minutes before returning a verdict that neither Knabe nor Justice was negligent in Jackson’s care, and therefore their actions were not a proximate cause of his death and both doctors met the appropriate standard of care.
The specifics of this case are as follows: On July 31, 2015 Jackson underwent neck surgery at Riverview Health Institute. On Aug. 2, 2015 Jackson went to the Wilson Memorial Hospital’s Emergency Department with complaints of back pain, difficultly urinating and shortness of breath. While there the attending physician ordered a CT scan, which was evaluated by Knabe to rule out pulmonary embolus, a life threatening emergency where a blood clot has reached the lungs. Knabe noted damage to the lungs from emphysema, and stated “no suspicious masses or nodules in the lung fields” in his report, and made no recommendations for follow-up CT scans.
On Aug. 3, 2015, Jackson was transferred to Kettering Memorial Hospital for further evaluation by his neck surgeon. While in the hospital, the doctors ordered a cervical (neck) CT scan, which was read by Dr. Joseph Blake, a radiologist. Blake noted in an addendum in the continuity of care document the presence of a “7 mm right apex nodule” in the lung, but made no recommendations that follow-up CT scans were needed.
On Aug. 11, 2015, Jackson saw his primary care physician, Justice, to follow-up after his emergency department and hospital visits. During this appointment Justice looked at the documents from Knabe and the continuity of care documents from Blake. Justice noted no follow-up care suggested by the two radiologists, and did not recommend any follow-up CT scans.
On Feb. 8, 2017, Jackson’s pulmonologist ordered a chest CT. The radiologists who read that scan found metastatic lung disease. This was diagnosed on March 16, 2017, as adenocarcinoma and on Sept. 7, 2017 Jackson died of metastatic lung cancer.
The case hinged on two main points: Knabe’s phrase in his CT report of “no suspicious masses or nodules,” and whether Justice read the continuity of care documents and followed the standard of care when he did not order any follow-up CT scans.
In the five days of the trial, eight expert witnesses were called to testify, as well as Knabe, Justice, other doctors involved in this case, Jackson’s wife and three of his four children.
During the course of the five days, experts showed the CT scans from Aug. 2 and 3, 2015, and showed the reports on these scans from the radiologists Knabe and Blake which Justice read in the course of his care for Jackson. The plaintiff’s attorney discussed if the phrase “no suspicious masses or nodules” meant there were no nodules seen, which would show that Knabe was negligent in his care since the 7mm right apex nodule was reported on a CT scan the next day. The 7mm right apex nodule was discussed by the expert witnesses: was it a scar or was it a nodule? The plaintiff’s witnesses stated it was a nodule, indicative of possible cancer which should be followed-up on, while the defendant’s witnesses stated it had the appearance of a scar – common in the lungs of smokers and not something that needed to be documented or followed-up.
The expert witnesses for the plaintiff included a radiologist, a family care physician, and a thoracic surgeon. These doctors all stated during their testimony that Knabe and Justice breached the appropriate standard of care. In regards to Knabe, they referenced The Fleischner Guidelines, which are a guide for lung nodules found through CT scans. The Fleischner Guidelines were created by the Fleischner Society on how to evaluate lung nodules found during CT scans and the appropriate follow-up for these nodules.
The plaintiff’s case was that the 7mm right apex nodule, according to the Fleischner Guidelines, should have been followed with CT scans to observe the nodule at 3 months and 6 months in order to look for changes. And had the nodule been followed, the lung cancer would have been found earlier and would have been treatable. In regards to Justice, the plaintiff’s expert witnesses said that it was his responsibility to order follow-up CT scans despite radiologists Knabe and Blake not recommending any in their reports.
The expert witnesses for the defendants included a thoracic oncologist, a family physician, a pulmonologist, a thoracic surgeon, and a radiologist who is also a member of the Fleischman Society. These witnesses all stated in their testimony that Knabe and Justice followed the appropriate standard of care, and the Fleischman Guidelines did not apply to the 7mm right apex nodule. They believed the nodule to be a scar because Jackson was a former smoker. They also stated that Justice was following appropriate standard of care when he did not recommend follow-up with CT scans because the radiologists, the experts in reading CT scans, did not recommend follow-up in their documents.
The final witness, Dr. Sanjeev Bhalla, is a professor of radiology at the Washington University School of Medicine in St. Louis, Missouri and a Fleischner Society inductee. According to Bhalla, the Fleischner Guidelines were established to limit unnecessary CT scans after CT imaging improved in 2000. The Fleischner Guidelines are to assist in clinical judgment- radiologists are to use their own training and experience when evaluating a nodule to determine if it needs additional follow-up. Bhalla identified the 7mm right apex nodule as scarring based on the location of the lesion and Jackson’s history of smoking and subsequent emphysema.
Closing arguments began on Friday afternoon. First was David I. Shroyer, a malpractice attorney representing Jackson. Shroyer argued that a 7mm nodule in a former smoker is high risk and that the defendants in this case were negligent. He also stated that if the cancer had been discovered earlier, at stage 1 or 2, it would have been treatable and Jackson would likely still be alive. He also presented slides showing that every expert witness, for both the plaintiff and defense, would have recommended a CT scan to follow-up at 12 months if not sooner. At 12 months the lung cancer would have likely been early enough to be treatable.
The second attorney was Susan Blasik-Miller, representing Justice. Her main point was that Justice did his job and met the standard of care when he did not recommend follow-up CT scans because the radiologists who read the scans in August 2015 did not recommend any follow-up scans. She stated that a reasonably careful family care physician would not follow-up because these experts did not recommend follow-up care in their documents.
The third attorney was David Krause, representing Knabe. He spoke about the credibility of witnesses and whether what each witness stated during testimony was reasonable or unreasonable. He pointed out where witnesses changed their testimony from when they gave their depositons. Krause also stated that when some of the expert witnesses for the plaintiff were first deposed the concern was about a different lesion than the 7mm upper apex nodule that was on trial this week. He pointed out the expert witnesses for the plaintiff did not include an oncologist and that lung cancer is the leading cause of cancer death in the U.S. with a five year survival rate of only 20%.
Shroyer was given the final opportunity to speak before the judge gave instructions to the jury. Shroyer questioned if the doctors followed recommendations by the Fleischner Society, and wondered if the cancer was diagnosed earlier, would Jackson have lived?
Judge James Stevenson reminded the jurors that the burden of proof by a preponderance of evidence was on the plaintiff. Did the plaintiff prove negligence and that their negligence was a proximate cause of death? Did Knabe and Justice act within their duty as reasonably careful doctors, and if they failed then were they negligent? Different opinions would not necessarily mean negligence and that the test in this case is foresight, not hindsight.
Three-fourths of the jurors had to agree on the decision. There were 17 interrogatories for the jurors to decide in this case. The interrogatories built on each other, and included questions regarding three other doctors involved in Jackson’s care.
When the jurors ruled in favor of the defendants Knabe and Justice they did not have to answer all 17 interrogatories since all 17 were no longer relevant. Since they determined Knabe and Justice were not negligent their actions were not a proximate cause of Jackson’s death, and there were no monetary settlements to be determined.
