daryl r. fanney, m.d. 2/5/2016 - ltc...

DARYL R. FANNEY, M.D. 2/5/2016

ELITE DEPOSITION TECHNOLOGIES 214-698-5199

CAUSE NO. DC-13-09404

JASON DAVIS, Individually, ) IN THE DISTRICT COURTas Representative of the )Estate of Talva Davis, )deceased, and as Next )Friend of the Minors, S.D, )J.D., T.D., and B.D., ) ) Plaintiff, ) )v. ) DALLAS COUNTY, TEXAS )FOREST PARK MEDICAL )CENTER AT FRISCO, LLC )d/b/a FOREST PARK MEDICAL )CENTER FRISCO; MICHAEL )RICHARDSON, M.D., and )PHYSICIAN ASSOCIATES, )PLLC, ) ) Defendants. ) 68th JUDICIAL DISTRICT

DEPOSITION UPON ORAL EXAMINATION OF

DARYL R. FANNEY, M.D.

ON BEHALF OF THE DEFENDANTS

Norfolk, Virginia

February 5, 2016



2 (Pages 2 to 5)

1 Appearances:23 Wormington & Bollinger

By: DAVID BENFORD, ESQUIRE4 212 East Virginia Street

McKinney, Texas 750695 (972) 569-3930

(972) 547-6440 (Fax)6 [email protected]

Counsel for the Plaintiff78 Shaw & Associates

By: DIANE K. SHAW, ESQUIRE,9 10670 North Central Expressway, Suite 245

Dallas, Texas 7523110 (214) 217-8375


Counsel for Defendants James Pak, M.D.,12 and Radiology Associates of North

Texas, P.A.1314 Steed, Dunnill, Reynolds, Bailey,

Stephenson, LLP.15 By: CATHY BAILEY, ESQUIRE

1010 West Ralph Hall Parkway, Suite 20016 Rockwall, Texas 75032

(469) 698-420017 (469) 698-4201 (Fax)

[email protected] Counsel for Defendants Inpatient

Physicians Associates1920 Stinnett, Thiebaud & Remington, LLP

By: CHARLES ESTEE, ESQUIRE21 1445 Ross Avenue, Suite 4800

Dallas, Texas 7520222 (214) 954-2218


Counsel for Defendant Michael Richardson,24 M.D.25

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1 Appearances (continued):23 Watson, Caraway, Midkiff & Luningham,

L.L.P.4 By: DAVID LUNINGHAM, ESQUIRE

309 West Seventh Street5 1600 Oil & Gas Building

Fort Worth, Texas 761026 (817) 870-1717


Counsel for Defendant Forest Park Medical8 Center Frisco9

10 Quillin Law Firm, P.C.

11 By: EDWARD P. QUILLIN, ESQUIRE 4101 McEwen Road, Suite 540

12 Dallas, Texas 75244 (972) 386-6664

13 (972) 386-6680 (Fax) [email protected]

14 Counsel for Defendant North Star Frisco1516171819202122232425

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1 I N D E X23 DEPONENT PAGE4 DARYL R. FANNEY, M.D.5 Examination by Ms. Shaw 56 Examination by Mr. Quillin 967 Examination by Mr. Luningham 978 Examination by Ms. Shaw 979

1011 E X H I B I T S1213 NO. DESCRIPTION PAGE14 1 Notice of Deposition 715 2 Curriculum Vitae 1116 3 Invoices 1217 4 E-mails 1218 5 Report May 15, 2015 5619 6 Report August 18, 2014 5620 7 MRI-CT Diagnostics Physicians' Portal 982122232425

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1 Deposition upon oral examination of DARYL2 R. FANNEY, M.D., taken on behalf of the Defendants,3 before Olga Branum, Registered Professional Reporter, a4 Notary Public for the Commonwealth of Virginia at5 large, taken pursuant to notice, commencing at 9:156 a.m. on February 5, 2016, at the offices of Zahn Court7 Reporting, 208 East Plume Street, Suite 214, Norfolk,8 Virginia.9

10 DARYL R. FANNEY, M.D. was sworn and11 deposed on behalf of the Defendants as follows:1213 EXAMINATION14 BY MS. SHAW:15 Q Good morning, Dr. Fanney.16 A Good morning.17 Q I just met you before the deposition here18 today; is that correct?19 A That's correct.20 Q And you understand that I represent21 Dr. Pak and RANT or Radiology Associates of North22 Texas; correct?23 A Correct.24 Q And you've had your deposition taken many25 times before; correct?



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1 A Correct.2 Q How many?3 A Estimate 40, 50.4 Q So I won't go through much here with you,5 but you do know if at any time during the deposition6 you want to take a break, please let us know. And also7 if at any time you don't understand my question, please8 ask me to rephrase or restate the question. Okay?9 A Okay.

10 Q Now, have you had a chance to talk to11 Mr. Benford or anyone else from his law firm about this12 the facts of this case and your opinions?13 A Yes.14 Q On how many occasions?15 A Well, when I was originally I was asked16 to review the case. There were occasional e-mails back17 and forth and phone calls, and then -- I don't know how18 many. And then last night we met for maybe an hour and19 a half and this morning.20 Q And how long did you meet this morning?21 A It was about an hour.22 Q Okay. And do you have any of these23 e-mails with you today?24 A I did print out some e-mails.25 Q Thank you. You said you printed some.

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1 Are these all of the e-mails or are2 there more that --3 A That's all I could find.4 Q Okay. And do you recall receiving, it5 looks like you've got it on your notebook there, a6 notice duces tecum for you today?7 A I did.8 MS. SHAW: Can we go ahead and mark that9 as Exhibit 1.

10 (Notice of Deposition marked for11 identification as Fanney Exhibit12 Number 1)13 BY MR. BENFORD:14 Q And if you look in the back, there's a15 number of questions on Exhibit A. Did you have a16 chance to review these questions?17 A I did.18 Q And so in going through this list, were19 there any categories -- can you identify the categories20 of documents that you don't have at all first?21 A Yes. Let's see. I do have the medical22 file, number 2. Number 3, I have the bills, invoices23 printed out for you as well. Number 4, I think that's24 what these records are.25 Q When you say these, you're pointing to

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1 the medical file?2 A I'm sorry. Yes.3 Q Materials received from plaintiff's4 attorneys.5 A Correct.6 Q And then this does say letters or records7 and that would be also the e-mails --8 A Correct.9 Q -- I take it. All right.

10 A I received a disk of the actual x-ray,11 but I don't know where that is now because I thought it12 was in this file but it's not. So I don't have that.13 I do have my CV, number 7. My CV14 includes my medical publications.15 I don't have a book that I've authored.16 Articles are in the CV. I don't keep a list of my17 deposition or trial testimony.18 Q Thank you. Have you ever testified in19 federal court?20 A Not to my knowledge.21 Q All right.22 A Again, number 10, I don't keep a list.23 This is my first case with this firm, number 11.24 Number 12, I think that's what those invoices I gave25 you. Number 13, I don't have any contracts with expert

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1 referral services.2 Q Just let me deviate for just one moment3 here.4 A Sure.5 Q No contracts, but are you listed with6 services, medQuest or other services?7 A I received cases from these --8 Q What are they?9 A -- services. I call them a middleman, I

10 guess. One is medQuest. The only other one was The11 Expert Institute.12 Q Okay. Thank you.13 A I don't have any applications with them.14 I don't advertise.15 I don't have any literature that --16 specific literature for this case except for the ACR17 Practical Guideline for Communication and Diagnostic18 Imaging Findings 2010.19 Number 7, I don't keep a list and20 number -- I mean number 17, I don't keep a list.21 Number 18, I have never -- yeah, I don't22 keep a list and I've never been not qualified as a23 radiology expert.24 Q Has that ever occurred to you in a25 lawsuit where you were serving as an expert and it was



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1 reported to you that you weren't able to testify on2 this issue or that because you were disqualified?3 A No, not as -- not as a radiologist, but I4 think my scope on almost any case is limited against5 other fields of medicine.6 Q Have you ever done that, where you've7 rendered an opinion against other fields of medicine or8 causation even, and they said, no, you're not really9 qualified to testify in this area?

10 A I don't really recall a specific instance11 where that's happened. It's usually by this point12 narrowed down to radiology, so I can't remember a time13 that's happened.14 Q So it may have happened and you just15 don't recall as you sit here today?16 A Correct.17 Q All right. Now, there should be a18 question on here and it's not so let me just ask you.19 Do you -- are you involved in any or do20 you have or participate in any social media sites like21 Facebook?22 A Actually, no.23 Q Okay. Are you on Facebook like just for24 personal?25 A No.

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1 Q So it's not like you have a profile but2 you can only get on there if you're a friend?3 A No. I avoid Facebook, Twitter and such.4 Q Anything like Instagram or any other type5 of communications that you do?6 A No.7 Q Okay. You said you do have your8 curriculum vitae with you?9 A I do.

10 MS. SHAW: Let me go ahead and get a few11 more items.12 (Curriculum vitae marked for13 identification as Fanney Exhibit14 Number 2)15 BY MS. SHAW:16 Q Is that what I've identified as Exhibit17 3 -- 2?18 A 2 you put.19 Q Exhibit 3, is that the billing that you20 have here today?21 A Correct.22 Q And Exhibit 4 is your Gmail account --23 A Correct.24 Q -- with e-mails to, I'm assuming to and25 from the plaintiffs?

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1 A That's correct.2 (Invoices marked for identification as3 Fanney Exhibit Number 3)4 (E-mails from Gmail accounts marked for5 identification as Fanney Exhibit6 Number 4)7 BY MS. SHAW:8 Q All right. And as far as your curriculum9 vitae, I notice you did have publications but most of

10 those did surround the time when you were getting your11 degree before, during and after you got your licensure?12 A That's correct.13 Q Where do you hold current licenses on14 file?15 A Just Virginia.16 Q All right. And when did you last renew17 that?18 A Like three days ago.19 Q I thought I saw 2016 on there. I was20 like is he behind, is he behind? No. No.21 So then the board certifications that you22 have had, they -- when did you last recertify as to23 either?24 A I'm grandfathered in the American Board25 of Radiology so that was 1989.

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1 Q So there's nothing you have to do to2 renew that?3 A No.4 Q And how about medical examiners?5 A That's the same thing. You don't do that6 again.7 Q All right. Do you do any work in the8 field of ME as a medical examiner?9 A No.

10 Q Have you ever?11 A I don't believe so, no.12 Q How is it that you came to get board13 certified in that area?14 A Oh, no. You're talking about the15 National Board of Medical Examiners?16 Q Yes.17 A That's something that you take when18 you're in medical school. And they have three parts,19 and you just have to go through part one, part two and20 part three.21 Q As part of your radiology curriculum?22 A Actually, that's more of a medical school23 curriculum.24 Q All right. And so that's not what -- the25 Board of Medical Examiners is not for what we would



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1 consider a medical examiner?2 A Correct. Correct. It's a misnomer, I3 guess.4 Q It's just to become a doctor?5 A Got it.6 Q Okay. M.D. All right.7 After you completed your medical school,8 residency and fellowship and such, where did you work?9 A After my fellowship I worked at

10 Chesapeake General Hospital here in Chesapeake,11 Virginia.12 Q For how long?13 A Until 1997.14 Q And the hospital department, did you work15 with emergency room issues or --16 A Yes.17 Q Often?18 A Often.19 Q Okay. And then when you started in20 private practice outside of the hospital setting, where21 was that?22 A At MRI-CT Diagnostics.23 Q And that's where you've been ever since?24 A Correct.25 Q Were you one of the founding members or

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1 how did that come about?2 A No. The founding member was there solo.3 It started I think about 1990 and then I joined him.4 Q Who was he?5 A He's Dr. Charles Hecht-Leavitt. It's6 hyphenated.7 Q And this is a singular outpatient type8 clinic or do you have different locations?9 A Now we have -- well, we actually have two

10 now and in a couple of months we'll have three.11 Q Where is your third one going to be?12 A The third one is in Virginia Beach. It's13 a building with the big urology group in the area. And14 they're going to have a hospital, I mean, an operating15 room on the second floor, urology on the third floor,16 and we'll be doing imaging on the first floor.17 Q You're in Virginia Beach now; are you18 not?19 A Correct.20 Q And where is your other location?21 A Chesapeake.22 Q And right now you're the director; is23 that correct?24 A I'm the director of body imaging/vascular25 imaging.

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1 Q All right. Do you do invasive imaging or2 invasive procedures?3 A Now our invasive procedures are confined4 to arthrograms, steroid injections into joints, some5 cyst aspirations, thyroid biopsies, things of that6 nature.7 Q Do you do that?8 A Yes.9 Q And the vascular imaging, who does that?

10 A That's me, and that's mostly between11 ultrasound, duplex sonography and MR angiography.12 Q Do you consider yourself at this point in13 your career to sort of have a subspecialty and you do14 more of this, this and this as opposed to general15 radiology or what have you?16 A Yeah. I probably specialize more in MRI17 of the body and musculoskeletal system, CT of the body18 and ultrasound.19 Q Does anyone in your group work in20 emergency rooms, cover emergency rooms?21 A No. Since we're -- emergency rooms are22 generally with hospitals. What we deal with now is23 urgent care centers. We do sort of the equivalent type24 of thing for them.25 Q What's the difference between an urgent

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1 care center versus your general practice at an imaging2 clinic such as yours?3 A Okay. An urgent care center is a place4 where somebody can go and get a primary care physician5 or an emergency type of physician. And then we're an6 imaging clinic.7 Q I understand but --8 A Oh, okay.9 Q Is there a difference in any procedures

10 that your imaging center has when you get referrals or11 orders from an urgent care center versus just from the12 general diagnostic clinic?13 A Generally, not all of them, but a lot of14 them are more stat cases.15 Q All right. And does MRI & CT Diagnostics16 have policies and procedures that govern communications17 of films, interpretations of films, the reports?18 A No, we don't. We really follow the ACR19 guidelines. We don't have a specific policy reporting20 it.21 Q And that's common, is that correct, for22 imaging centers such as yours to follow ACR guidelines,23 follow the standard of care as they interpret it as24 opposed to having a definitive written set of policies25 or guidelines?



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1 A For outpatient facilities it is.2 Hospitals --3 Q It's different?4 A It's different, right.5 Q Understood.6 A Okay.7 Q Thank you. Have you read the deposition8 of Miss Hanscom, the surgical tech that was retained?9 A At some point I did, I believe.

10 Q Okay. Do you recall her testimony in11 general about what their procedure was for using the12 fax machine and following up every few hours to make13 sure the fax went through? Do you recall generally?14 A I remember something to that. I don't15 remember specifically.16 Q And then the testimony of Mr. Wright, who17 was the owner of North Star Imaging, that their18 procedure that came to be following up every hour to19 make sure the communications went through?20 A Yeah, again, I remember in general.21 Q Okay. Well, at the MRI-CT Diagnostics22 that you're director of, do you have similar protocols23 that you all follow just because that's what you tell24 everybody to do or everyone knows this is what we do,25 some type of regular routine or a staff member makes

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1 sure that the reports are faxed or go through and such?2 A Right. Again, I'm just the director of3 body and vascular imaging, and it's really kind of4 outside my scope of -- we may have those policies, but5 there would be other people that would know that. I6 think like this is an automatic fax machine. Whether7 somebody is checking those, I'm not sure.8 Q All right. You're overseeing this9 department or area, body and vascular imaging. How

10 often are you actually doing it?11 A Overseeing it, every time I'm there.12 Q Okay. How often do you actually get13 involved in being the radiologist who writes the14 report?15 A Well, I mean, every day that I read I'm16 doing it constantly.17 Q All right. So what is the procedure?18 The tech does the imaging?19 A Right. Referring --20 Q You describe your procedure, please.21 A Yeah, sure. A referring physician orders22 a study with a request. Patient comes to our facility23 with the script. Technologist images the patient. The24 images come to us on the computer. There's a PACS25 component, that's the imaging, P-A-C-S, and a RIS

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1 component, R-I-S, which is the information side. And2 we dictate our findings and impression into the RIS.3 And we can actually proofread it right there. It's4 voice recognition. We can actually sign it right there5 if it's routine, and it would be automatically faxed to6 the referring physician.7 Q Okay. Is it such that it's got -- does8 it have lights on it that give you X number of minutes9 to proof it, finalize it, and you push buttons and then

10 you don't have any more time to do anything with it?11 A No time limit --12 Q Okay.13 A -- on it. No, it'll just -- it'll just14 stay there in a draft form.15 Q Until you push a button finalizing it?16 A Correct.17 Q And you get it finalized to your18 satisfaction, you push that button, and then you rely19 on the fact that it goes?20 A Right. It's electronically signed, and21 then you're relying on, in a routine case, for the fax22 to go.23 Q All right. And so do you have any24 expectation that there's somebody at your imaging25 center who is going to follow up to make sure they go

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1 through this system in case the fax on the other end2 doesn't work or nobody is receiving it at the other3 end? Of course, I guess you can't really tell that,4 but do you have any kind of procedure that you rely on5 or just, you know, that there's one person there that6 makes sure all these reports go through? How does that7 work at your clinic?8 A Yeah. And again, I don't know the9 specifics, but I do believe there is somebody in our

10 scheduling staff department that checks the fax11 machine.12 Q Okay. You think there's one person13 that's designated for that or would it depend on --14 A You know, that I don't know.15 Q So as a radiologist, you don't know16 whether or not -- if there's any kind of malfunction, I17 mean, do you feel comfortable relying on the staff18 that's there to make sure it gets through, whether it's19 an IT person or whether it's a designated staff member?20 A For a routine case I do.21 Q And if you read Carrie Hanscom, she said22 that they also physically mail the reports as well. Do23 you all do that?24 A No.25 Q Okay. She said that that was -- they



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1 would check every few hours, make sure they go through,2 and then the final check system was mailing it to make3 sure they go through, and you're certain that you all4 don't do that?5 A I'm pretty certain we don't mail them.6 Q Do you all have a designated IT person7 that checks to see if what they -- if there's anything8 they need to do if there's reports that aren't going9 through on this system?

10 A Yes.11 Q Are they in-house or are they -- do they12 check mail or do you know?13 A Well, the IT person is in-house. I think14 the procedure would be if somebody checked it and15 thought there was a malfunction, they would report it16 to our head of IT and he would handle it.17 Q Okay. And I don't know if you remember18 Carrie or Miss Hanscom addressing that in their system,19 if anything didn't go through, it would either red flag20 or it would be a red light, I don't know, something21 like that that would get IT involved because it would22 make them aware. Does your system or your procedures23 work like that or do you know?24 A I don't know.25 Q Okay. Do you know if you actually may

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1 have a written procedure one way or the other, or are2 you saying you don't know if you do or do you know you3 don't?4 A I'm sorry. Regarding what --5 Q Communications of the reports.6 A So communicating meaning how a7 radiologist dictates the report and what should be in8 it or communications as far as the fax machine?9 Q A policy -- well, it would probably

10 address both but, of course, I'm more interested in11 whether you have a written policy with regard to how12 MRI & CT Diagnostics communicates the end report done13 by the radiologist to the referring physician.14 A Right. I'm not aware of one.15 Q All right. And if you're not aware of16 one, but that's not your area of responsibility, are17 you saying there may be one; you're just not aware of18 it?19 A It's possible.20 Q All right. Could we ask you -- well, let21 me rephrase this. I'm asking you could you please find22 out, and if you have one produce it as an exhibit to23 this deposition?24 A Yes.25 Q Okay. Thank you.

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1 Now, do you recall Miss Hanscom also2 testifying that if there's a concern about a critical3 result, and then they have a procedure where she, I4 think she's a manager tech, and there's someone that's5 designated to send every 15 minutes, three times, the6 report. And then if it doesn't go through, they7 actually call the patient and tell the patient to go to8 the emergency room. Do you all have a similar9 procedure whether it's written or not?

10 A Yeah. Our procedure for critical results11 is the radiologist would call the referring physician12 or the agent. If you can't get them, then -- then13 communicate to the findings to the patient directly.14 Q So there's no back-up or follow-up within15 your staff to help make sure the critical results get16 communicated?17 A Right. It's a radiology issue, a18 radiologist issue. They're the ones that have to make19 the call, not the staff.20 Q When you say the call, you're saying like21 the phone call?22 A The phone call, correct.23 Q All right. And so it wouldn't be a call24 to make sure the referring physician got the report;25 you're saying it's a call to communicate the result?

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1 A Right. It's a phone call to directly2 communicate the results and convey meaningful3 information to them about what you have seen and why4 it's critical.5 Q And so as far as actually getting --6 making sure they get the report, you don't really have7 a procedure for that at MRI & CT Diagnostics beyond the8 radiologist making that call, phone call; is that9 correct?

10 A That's correct. Once you've made the11 phone call and you document the phone call in your12 report, it still goes over by fax, the actual report,13 but you've already communicated it in a nonroutine way.14 Q As a radiologist, if you have a doctor15 who said, oh, send it right now, I mean, do you ever16 send it by text message or picture and a text message,17 or do it yourself nowadays with modern technology that18 we can use on our phone; do you ever do that?19 A Honestly, when they say that they want20 the written report, they want the actual legal document21 report when they see it. So they know the information22 but they just want it in writing. So what I would do23 then is I would just dictate it right then and I would24 hit the sign button.25 Q All right. And then it goes



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1 automatically by fax; right?2 A Correct.3 Q And then there's -- at your clinic4 there's no additional follow-up to make sure they5 actually got the written report?6 A I'm not aware of that.7 Q All right. How often do you do what you8 would call stat reports?9 A Probably at least five times a day, five

10 to ten.11 Q And what is your procedure for stat12 reports?13 A Again, it's the same. You read the14 report and it'll say stat labeled, so they want that15 one first. So you read stat cases before you read16 routine cases. They kind of jump to the top. And then17 depending on the issues they see would determine18 whether or not you needed to do nonroutine19 communication by calling the physician.20 Q All right. And so after you do a stat21 evaluation, you don't do anything different than the22 other two procedures you've already discussed, is that23 correct, one for nonroutine, one for routine?24 A I guess I don't understand that question.25 Q Sure. The only difference in a stat

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1 referral is you read it first; is that correct?2 A At the beginning, yes.3 Q At the beginning that's -- that's the4 difference --5 A The difference --6 Q Are there other differences as to how a7 stat request is handled?8 A No. I mean, just the word stat, which is9 put in the RIS system, what it does to separate it from

10 the routine is just that it's read first before it --11 so that happens before you've even looked at the12 images. Once you look at the images, there's a whole13 other thing you have to go through --14 Q What is the other thing you have to go15 through once you look at the images for a stat16 referral?17 A Okay. So if you look at it and it falls18 under your, you think it's a critical finding,19 life-threatening finding, something that's going to20 adversely affect the patient if there's a delay, then21 you would call the physician in a nonroutine manner.22 Q Is that any different than what you just23 described a few minutes ago?24 A I don't think so.25 Q Okay. And that was what I was asking, if

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1 there's any difference -- is there a third set of2 protocols for stat. Or once you've done it stat, read3 it stat, interpreted it stat, it's going to follow4 either routine or nonroutine --5 A Correct.6 Q -- procedure. Okay.7 And again, there's no additional staff8 member that you have at the MRI & CT Diagnostics that9 helps get involved in confirming that the report on a

10 stat request is received by the referring physician; is11 that correct?12 A Right, not that I'm aware of.13 Q Okay. How many times a day would you say14 that you see pneumonia or infiltrates in chest x-rays?15 A Not that commonly every day. I mean, you16 might see some infiltrate once a day, and infiltrate is17 sort of a broad term.18 Q And because you're doing -- you described19 the type of sort of a subspecialty or the focus of your20 practice as being the body and MRI imaging; is that21 correct?22 A Body and vascular.23 Q Vascular.24 A Correct.25 Q So at this point in time are other

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1 radiologists more likely to be doing the2 interpretations on chest x-rays?3 A No. I probably read more. The other4 specialty is really neuroradiology, brains and spines.5 So technically everybody should be able to read a chest6 x-ray, but I probably read more than the7 neuroradiologists do.8 Q Okay. We talked about the term stat.9 When you get a referring report or a

10 referral, not a report but a referral --11 A Script.12 Q Yeah. What are other terms that would13 suggest to the tech or to yourself that this means14 stat?15 A Wet read, that's the other one that's16 used a lot.17 Q All right. What else?18 A Those are really the main ones is stat19 and wet read.20 Q Do you ever get ones that say urgent,21 now?22 A No.23 Q Those aren't the terminologies used?24 A That's not in the -- that's not up, yeah,25 in the menu to pick.



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1 Q All right. Is there in your form that is2 as you're designating in the pick, is your form for the3 script or the order, is it one page or two?4 A You mean our page on our -- the RIS5 information page?6 Q That the referring physician would use to7 explain what they're asking for.8 A Oh. Well, they have -- most of them have9 one page. It's from their office, so the patient will

10 bring it generally. Sometimes it's faxed.11 Q Okay.12 A And then our staff scans it into the RIS13 system, but generally from most offices it's on one14 page.15 Q All right. And does it have options from16 the referring physician that say, you know, call me on17 completion? Does it have different options so that if18 the referring physician has a real concern they can19 make -- communicate that concern to the radiologist?20 A Correct. And what they would do is on21 their script or requisition form, they would state,22 call wet read to, and they give you a phone number.23 Then our staff would put that in as a wet read stat and24 put that information for us to see that.25 Q Okay. And if they put that in there,

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1 does the staff then make that call?2 A The wet read call?3 Q Yes.4 A No. No. That's the radiologist.5 Q And that would be whether it's a routine6 or nonroutine?7 A Well, if it's a wet read, it's no longer8 technically a routine.9 Q All right. And on the scripts for chest

10 x-rays, what are the categories that are -- that11 correlate with the concern of pneumonia? For example,12 rule out pneumonia, suspicious of pneumonia, cough or13 cough over a period of time, are those common comments14 you see when correlating it with chest x-ray?15 A Probably the most common is it just says16 cough, and that's extremely common in this area17 generally through the sinus disease, but they'll say --18 they'll just put cough. Some people might put, like19 you said, they might put rule out pneumonia.20 Q If a primary care provider is highly21 suspicious that a patient may be developing pneumonia22 because of a lengthy history, is it helpful for the23 radiologist to have that information?24 MR. BENFORD: Object to form.25 THE WITNESS: Again, I'm not -- I can

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1 speak as a radiologist that any information you get is2 potentially helpful.3 MS. SHAW: Do you see that --4 MR. BENFORD: Objection.5 -- information?6 THE WITNESS: Yeah, it varies from case7 to case, you know. Sometimes we can get a whole8 medical note, but most of the time --9 MS. SHAW: It's very short.

10 THE WITNESS: Most of the time you get11 like cough.12 BY MS. SHAW:13 Q Got you. All right.14 And so we'll get to your report, but I15 think you said you've literally seen thousands of chest16 x-rays, and would the majority of those say cough if17 they were looking for a rule in or rule out pneumonia18 or the physician's concern about pneumonia?19 MR. BENFORD: Object to form.20 THE WITNESS: You know, I can't say what21 all of them say. I just think cough is a very common22 one.23 BY MS. SHAW:24 Q Fair enough. Okay.25 If a primary care provider is highly

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1 suspicious or very concerned about a patient developing2 pneumonia, as a radiologist would you have an3 expectation that would be communicated in some way?4 A I think in any case you hope -- our job5 is to answer their question is the way I look at it.6 So if they have a real question, you hope they state it7 to you if -- you can't answer a question you don't8 know. So that's true in any case.9 Q Okay. I think you've already addressed

10 this, but you don't have any publications that would11 focus on chest x-rays or pneumonia that you've ever12 written or assisted in writing; is that correct?13 A I don't believe so. Correct.14 Q The publications that you were involved15 in back when, it looks like from '89 to '91, the16 categories that you were involved in and your17 publications and your presentations, did you then18 incorporate that into what you consider to be an area19 of focus, or did it just happen that you worked on20 these subject matters because it was something that was21 going on at the university and hospital you were22 working at?23 A Mostly the latter.24 Q As far as professional organizations,25 what members of any professional organizations do you



10 (Pages 34 to 37)

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1 have -- are you involved in?2 A I don't pay the fees right now but we do3 it as a group. So we have access to the American4 College of Radiology. The journals is really what you5 want. There's two big journals in radiology, the AJR6 and Radiology.7 Q Anything else?8 A After that, no.9 Q No. Okay.

10 Any particular areas of interest in the11 field of radiology or medicine that you're involved12 with in the community in any way?13 A Oh, other things besides medicine? You14 mean like coaching?15 Q Anything.16 A Yeah. I mean, I'm the head of an17 athletic association here, the Bayside Recreation18 League which is in Virginia Beach, and I coach a number19 of youth teams, basketball and football.20 Q How long have you done that?21 A I've done that now ten years.22 Q And is that an all year-round or23 seasonal?24 A It's, I would say, not summer.25 Q Do you have any other corporations,

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1 companies, partnerships that you're involved in other2 than this one that we -- the imaging company?3 A No.4 Q Do you have -- are you involved in any5 organizations in Florida, for example?6 A Organizations in Florida?7 Q Or companies or --8 A No. I mean, we had a -- where my9 parents' house, we had something with my brothers

10 called FANBROS. I think that's dissolved now.11 Q What was that?12 A Something lawyers put together for my13 parents to stay in the house and was owned by the14 brothers, but now they're in a retirement home.15 Q Okay. Let's go ahead and go through your16 additional exhibits that I'm just putting right here.17 The billing that you have, which I think18 I think is Exhibit 3 --19 A Exhibit 3, here you go.20 Q So it looks like the first bill that I21 see is August 31st, 2014, with six hours, thank you for22 letting me review, and your fee was $3,000?23 A Correct.24 Q And what is your hourly rate?25 A $500 per hour.

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1 Q And is it $500 per hour whether you're2 reviewing, being deposed or go to trial?3 A Correct.4 Q And how many times have you testified in5 trial?6 A Trial, I'm estimating maybe around ten7 times.8 Q And what states?9 A Virginia, Pennsylvania, New Jersey, Ohio,

10 I believe. There was one in Texas, I believe, or just11 outside Texas.12 Q Just outside Texas, like Texarkana or --13 A I know it's terrible. I flew into Dallas14 and had to drive north.15 Q Texas is so big you might think you're16 not there. Okay. Any other states you can recall?17 A Not right now.18 Q All right. Were these all plaintiff or19 testimony for the plaintiff?20 A Most trial is for plaintiff, not all of21 them but most. My mix is pretty much 50/50 I review22 but seems like cases that go to trial are mostly23 plaintiff.24 Q How many cases are you involved in right25 now as far as reviewing?

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1 A You know, I don't know because I keep the2 files, but there's a lot of people that don't notify3 that the case is over.4 Q All right. So how many files do you have5 right now, whether they're over or not?6 A Probably -- it's probably about 30.7 Q And how long have you been reviewing8 cases?9 A My first case was in the mid '90s.

10 Q And has your docket consistently picked11 up through the years for reviewing and rendering12 opinions?13 A It definitely picked up from the mid '90s14 where it was maybe one a year and now it went to about15 six to twelve. It's getting a little closer to the16 twelve than the six.17 Q All right. So kind of gradually built up18 and now you think you're at least twelve a year now?19 A I'm just estimating.20 Q Do you approximately get one in a month?21 A That's what I'm thinking.22 Q And it could be like you go by a month23 and nothing and then the next month two or three come24 in?25 A It's possible.



11 (Pages 38 to 41)

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1 Q When was the last time you testified in2 trial?3 A I can't recall. I know there was -- I4 think it was in Philadelphia.5 Q Do you recall --6 A Maybe a year, I'm thinking. I'm trying7 to remember the case.8 Q I'm sorry. I didn't mean to interrupt9 you.

10 A No. That's fine.11 Q In Philadelphia, do you remember the name12 of the plaintiff's attorney that you were working with?13 A I can't think of it right now. Sorry.14 Q All right. Is there a plaintiff's or15 plaintiff's attorneys or attorneys in Philadelphia that16 you've done repeat reviews for?17 A Yes. The Beasley firm has sent me a few18 cases, James McKelger (phonetic), and that may be the19 last case. It was more of an arbitration than a trial.20 Q Do they have a statute that has a21 preference for arbitration or a requirement for22 arbitration in Pennsylvania?23 A I don't know. I just remember that that24 was the first one I had ever done like that.25 Q All right. What was the gist of that

Page 39

1 case?2 A Missed lung cancer on a chest x-ray.3 Q Did the case get resolved?4 A Yes.5 Q And are there other attorneys in other6 states, here in Virginia, that send you repeat requests7 for review of records?8 A Yes. Goodman, Allen & Filetti.9 Q Okay. Others?

10 A I can't remember the whole name of this11 one, but I think it's Hancock Johnson, something like12 that.13 Q Any others that you can recall as we sit14 here today that give -- you recall working with several15 times or more than once?16 A No. There are others but I can't think17 of their names.18 Q Okay. And those that we just covered or19 those that send you repeat business that you can't20 recall, if we were to look the cases up, would they be21 for the plaintiff?22 A No. Those would be defense firms those23 last two I gave you.24 Q Hansom --25 A Hancock Johnson and Goodman, Allen &

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1 Filetti.2 Q All right. Any others that you recall3 that are defense firms?4 A Yes. There's one called Sands,5 S-A-N-D-S, but I can't remember the other names.6 Q Are these all in Virginia?7 A Yes. They may have offices elsewhere8 but --9 Q All right. So of the 30 files that you

10 have right now, how many of those have you written11 expert reports for?12 A Maybe half, estimating.13 Q So what is your procedure generally? Do14 you give a verbal report of what your findings are15 after you review, or do you work up a report and then16 discuss the report with the attorney?17 A Now what I do is I have -- in radiology I18 have them send me the, generally it's images, with just19 the same information that the radiologist had and I20 review it that way, and then I call them. And then21 from there it varies from case to case, whether they're22 going to want a report or not, or an affidavit signed.23 Q All right. Are most of what you're24 looking for is a wrong or missed diagnosis?25 A Correct. I just will read it, right.

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1 I'm not really looking for that. I'm just trying to2 put myself in the same situation of just reading the3 case.4 Q A cold read?5 A A cold read and with -- well, or with at6 least the history the radiologist had. And then if7 there happens to be a deviation, that's what I would8 discuss.9 Q All right.

10 A Or lack of.11 Q Did you do that in this case?12 A Yes. Except in this case it wasn't13 really -- the findings were pretty obvious; it wasn't a14 case of a missed finding.15 Q Is that what you did in your initial16 review? You're saying initial consultation: Reviewed17 images and materials, spoke with attorney, write18 report. So you actually did it all, everything at the19 same time or --20 A Right. I put -- that invoice included21 all of that, correct.22 Q Is this not a common invoice or is this a23 common invoice?24 A I would say this is a little more25 uncommon in that I usually don't get asked to write the



12 (Pages 42 to 45)

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1 report until later from the initial review. So usually2 the first invoice usually just says initial3 consultation, review of materials, speak with attorney.4 That's probably the most common.5 Q Okay. And I take it when you're speaking6 with the attorney, you get an understanding of what the7 attorney is telling you the case is about; correct?8 A After -- during the conversation, right.9 Q When you -- because here it says review

10 images and materials. So it looks like you looked at11 more than just the images in this case from your12 initial billing.13 A That's correct. I mean, I had everything14 that's in my report is because I wrote the report, so15 those are the materials.16 Q Do you recall who you spoke with17 initially about this case?18 A I believe it was Maria Wormington?19 Q Correct.20 A Okay.21 Q And what did she tell you about the case22 during that initial conversation?23 A That I don't recall, just my usual24 routine is just the history and the images.25 Q All right, but this one was different.

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1 So did you have an understanding when you were working2 on your initial review of this case that she was asking3 you to give an opinion about communications?4 A No, see, I don't recall. What I meant it5 was different, it wasn't where -- it wasn't a blind6 read really made much of a difference one way of the7 other type of different, where a lot of my cases are8 something was missed on the image.9 Q All right.

10 A So the blind read part isn't as important11 in a communication case.12 Q Sure.13 A That's what I meant.14 Q Of the cases where you're testifying,15 have you done any previously that have to do with16 communications?17 A There have been cases with communication,18 yes.19 Q How many?20 A I wouldn't know.21 Q Have you done any for the defense?22 A Communications?23 Q Uh-huh.24 A I believe so, yes.25 Q How could we verify that?

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1 A Well, I mean, I'd have to go look through2 my cases that I have.3 Q All right. Can you do that?4 MR. BENFORD: I'm going to object to that5 request at this point in time. That goes into a whole6 different area that's not related at all to this7 lawsuit. If you want to do that and send it to me so8 we can evaluate whether it's compatible with9 anything --

10 THE WITNESS: Let me write it down so I11 don't forget. Okay.12 BY MS. SHAW:13 Q Dr. Fanney, you understand from our14 perspective any opinions you have in other cases that15 have to do with communication we would see as being16 relevant, and I think the court would too so that's why17 we're asking you to provide that information.18 A I'll take a look.19 Q Okay. Thank you.20 When was the last time that you can21 recall doing a case with regard to communications or22 communication system with regard to a radiology23 opinion?24 A I don't recall a specific case, but I25 wouldn't be surprised if it was in the past year.

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1 Q Okay. Do you think it would be within2 the past five years?3 A Oh, definitely.4 Q Okay. And in the past five years, do you5 think you've done it a few times, more than once, less6 than ten?7 A More than once.8 Q Okay. Do you see that as a common or a9 fairly common recurring issue in radiology?

10 A It's a very common I think increasing11 issue.12 Q All right. And when you say it's a very13 common and increasing issue, what do you mean by that14 as far as an increasing issue?15 A Well, increasing as far as my -- my view16 of reviewing radiology cases over the years, it seems17 to -- I get requests to review cases where there is a18 communication issue, so in my personal experience it19 seems to be increasing.20 Q All right. Thank you.21 Do you think that today's modern22 technology for communicating has anything to do with23 the increasing, or is it just for you you've seen it24 more in current years?25 MR. BENFORD: Object to the form.



13 (Pages 46 to 49)

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1 THE WITNESS: Honestly I think it's2 multifactorial. I think it has to do with evolving3 relationships of radiologists' role with referring4 physicians and to the patient since 1900 until now.5 MS. SHAW: All right.6 THE WITNESS: And now the radiologists7 have more responsibilities to inform the doctors and8 the patients.9 BY MS. SHAW:

10 Q What do you mean by that, now they have11 more responsibility to inform to the patients as12 opposed to -- what do you mean?13 A As opposed to, let's say, in the year14 1900, I think they could just tell the referring15 physician what they saw and that would be it. But now16 you have to make sure that it's done in a nonroutine17 manner, and you have to make sure the patient gets the18 information as well.19 Q Are you saying 1900 or 1990?20 A No. 1900. I mean, radiology goes way21 back.22 Q Okay. Well, and the reason that this23 concept of, you know, now they have more responsibility24 to inform, the reason I'm focusing and questioning on25 that is it seemed like before there was all this

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1 technology that seemed to be a fairly routine, and then2 there became clinics and procedures that helped to3 govern various clinics and protocols as to how4 communication would occur, so that's why I'm asking.5 It seems like before the radiologists6 would always pick up the phone because there wasn't all7 this technology or necessarily all the staffing or8 procedures for other folks, so you seem to be9 suggesting just the opposite.

10 A I mean, I don't think it's really a11 technology issue. I mean, I don't think they used to12 pick up the phone back in the day; they would mail it.13 They would mail the report.14 Q Okay.15 A But I think, nowadays, there's -- I mean,16 you can probably go back to the 1950s, the '60s, the17 '70s, that's when it really started to swing more to18 having more expectations.19 Q All right. When did, in your mind, it20 become a bigger business, for lack of other21 terminology, to have imaging clinics get involved as22 opposed to the radiologist at hospital or hospital23 systems?24 A You mean outpatient facilities?25 Q Uh-huh.

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1 A When did that happen? I don't know. I2 mean, I would have to say that they, probably in the3 1980s they started to pop up more. I have a feeling4 part of it had to do with the CAT scans and MRIs coming5 out, and then people wanted to do that on an outpatient6 basis.7 Q Okay. Going back to Exhibit 3 and the8 subject matter of billing, when you go to a trial, do9 you have a ballpark idea of what your fees are by the

10 time you worked up the whole case and then you go to11 trial?12 A Well, not -- you mean for the whole case13 or just for the trial?14 Q For the whole case, like ballpark what do15 you make per case?16 A Well, no, it really varies.17 Q Okay. How about ballpark per case that18 doesn't go to trial?19 A Oh, if it doesn't go to trial and no20 deposition, without a deposition it may only be -- it'd21 probably be $1,000 or something like that. Depending22 on how long the deposition is, that would add some23 more.24 Q All right. So but this one was 3,000 for25 your initial consult, review and report?

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1 A Correct.2 Q When did you -- was it in your first3 conversation with Maria Wormington that you learned4 that this case was about the communication issue?5 A I don't recall.6 Q Then invoice two of Exhibit 3, you have7 review policies and an e-mail with the attorney, and8 your fee for that was 250; is that correct?9 A Correct.

10 Q And August 31st, 2015, you reviewed11 supplemental answers and expert designation Richardson12 report, Ginsberg report, North Star supplemental13 answers, and billed one hour for that; is that correct?14 A Correct.15 Q Do you recall the significance of those16 things you reviewed?17 A The significance to the case?18 Q Uh-huh.19 A Well, just particularly Dr. Ginsberg was20 the defense radiologist and -- I'm sorry. I can't read21 that.22 Q I'm sorry.23 A I mean, that's all I can think of right24 now. I mean, that's just significant in that he has a25 different opinion.



14 (Pages 50 to 53)

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1 Q All right. As we sit here today, do you2 recall what those differences in opinions are?3 A Well, I think there were a lot. We have4 to go through it.5 Q We'll do that. Okay.6 Do you recall the significance of North7 Star's supplemental answers?8 A To me there wasn't all that much.9 Q Do you understand what North Star's

10 position is in this case?11 A In general.12 Q What is it? Not necessarily their legal13 position but just --14 A Oh, I guess I don't.15 Q Go ahead and answer it.16 A I mean, that they're not liable.17 Q Okay. Of course. But and you18 understand --19 MR. BENFORD: Wait. Wait. I know you're20 joking. I'm not sure the answer that you say --21 THE WITNESS: Wait. I thought she said22 what their position was.23 MR. QUILLIN: I thought that was your24 position.25 THE WITNESS: Oh, my position, no. I

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1 thought she said do you understand what their position2 is.3 MR. BENFORD: I think she's asking what4 role they played in this but I could be wrong.5 MS. SHAW: Thank you, David.6 BY MS. SHAW:7 Q Now you've answered both. Not -- no.8 You understand what the role is; please9 tell us.

10 A I mean, the role is that they're the11 imaging facility.12 Q Correct. All right.13 So on June 16, 2015, it says deposition14 fee $4,000. What is that?15 A That's for today.16 Q And so is that a flat fee that you do per17 day?18 A No. Actually, it has to do with how long19 a deposition is going to be and how much time I have to20 take off. It sets things in motion about coverage and21 whether it's going to be video conference or at 5:30 at22 night, things like that.23 Q Okay. Now, so you're basically in the24 ballpark of $8,000 here, but there was -- was there a25 review of additional documents and another report that

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1 you did and/or billed for that's not here?2 A There are some things I haven't billed3 for yet at this point. But another report, I'm not4 aware of that.5 Q Where do we find out what you haven't6 billed for yet? Do you have that in your system?7 A No. I don't really have it in my system;8 it's in my head. I have to go home and look.9 Q Do you have any kind of accounting system

10 or a folder that you keep for your accounting that has11 to do with medical/legal work?12 A No. I just keep -- I just create these13 invoices. That's it.14 Q In your computer, do you have a folder15 for each case that you're reviewing?16 A No. The invoices are just individual.17 Q All right. In your computer, do you have18 your files scanned or is everything you do on manual19 paper, white paper?20 A I wouldn't say everything is scanned. It21 depends on the case. Some are a lot of paper. Some22 are PDFs that are on the computer.23 Q So of the 30 that you have right now that24 may or may not be active, how many of those do you have25 in folders or in some sort of organizational system in

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1 your computer?2 A Well, they would have invoices in the3 computer. But other than that, there really isn't any4 file for them in the computer. It depends what's in5 each case. Some would have a CD with the medical6 records. Some will have paper.7 Q So in your computer you have all your8 invoices, and do you organize them by case?9 A Right. I put the name of each invoice is

10 by case.11 Q Okay. And if you were looking at your12 list of your invoices, would it also have the names of13 cases that have been closed out?14 A Cases that have been closed out, I15 probably have some, yeah.16 Q All right. I mean, what do you use for17 tax purposes to communicate to your, I'm assuming you18 use a CPA, to identify what income you've generated19 that you have to pay tax on, how do you organize that?20 A Well, I just give him all the W-2s that I21 get.22 Q Okay. And so it's about tax time. How23 many W-2s did you get for 2015?24 A I don't know. They're still rolling in.25 I just toss them in a little basket.



15 (Pages 54 to 57)

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1 Q Is it more than 30 or less than 30?2 A Less than 30.3 Q Do you have a ballpark on what the total4 is --5 MR. BENFORD: I'm going to --6 MS. SHAW: -- for 2015.7 MR. BENFORD: Excuse me. I'm going to8 object to the form of the question.9 Doctor, I don't think a court is going to

10 require you to talk about your overall personal11 financial situation. I think if it's a question about12 percentage of your income derived from --13 MS. SHAW: Objection to your coaching the14 witness. I mean this --15 MR. BENFORD: Can I get done before you16 object?17 MS. SHAW: -- this is relevant.18 Well you're not supposed to be giving --19 you objected to form, and I didn't ask you to clarify20 that.21 MR. BENFORD: All right. It's a22 basically unfair question.23 So, Doctor, I'm not your attorney but I24 am going to tell you that I don't believe a judge is25 going to require you to give that level of detail. If

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1 you choose to, go ahead.2 THE WITNESS: But I couldn't anyway3 because I don't know.4 BY MS. SHAW:5 Q Do you know approximately what percentage6 of your overall income correlates with medical/legal7 review?8 A It's less than 10 percent.9 MS. SHAW: Okay. Thank you. I'm going

10 to get back to these. Let's look at your report for a11 minute.12 MR. BENFORD: We've been going about an13 hour and 15 minutes, can we take a quick break?14 MS. SHAW: Absolutely. Anytime.15 (Recess)16 BY MS. SHAW:17 Q Okay. Do you have one or two reports,18 Dr. Fanney?19 A I have one report.20 Q What's the date on the report that you21 have?22 A May 15, 2015.23 Q All right. Let me just mark this as24 Exhibit 5, and that is a true and accurate copy of your25 report; correct?

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1 A Correct.2 (Report May 15, 2015, marked for3 identification as Fanney Exhibit4 Number 5)5 BY MS. SHAW:6 Q And let me mark Exhibit 6 as, I believe I7 have a report from 2014, which I think correlated with8 your original billing.9 Do you recall that, sir, August 18, 2014?

10 A Oh, this must be before the -- I was11 given Phelp's, that's correct.12 (Report August 8, 2014, marked for13 identification as Fanney Exhibit14 Number 6)15 BY MS. SHAW:16 Q All right. And so your first report is17 correctly identified then as Exhibit 6 for today?18 A That's correct.19 Q And so Exhibit 6 is the report that20 correlates with your August 31st billing of six hours21 which included writing a report?22 A Correct.23 Q All right. So do you think we may be24 missing an invoice that correlates with additional25 review of documents for you to review and prepare and

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1 then write your second report which is dated May 15,2 2015?3 A Yeah. I just haven't made one yet.4 Q All right. When there was more5 depositions and such, did you review those and you6 think it would be a similar amount of time or more7 time?8 A I'm guessing it's going to be less than9 that.

10 Q All right.11 A Estimating.12 Q So in the Exhibit 6 you have the13 depositions and documents you reviewed as you do for14 Exhibit 5. And you've got 22 entries on which you15 reviewed for Exhibit 5 and you have 11 entries. So16 there were several additional depositions and policies17 that you've incorporated, and I think it's on your18 second page.19 A Correct.20 Q So actually it looks like you reviewed21 just as much, possibly more, for your second report as22 you did for the first report; is that correct?23 A I may have reviewed more, but I don't24 think I had to spend as much time writing it. That's25 why I'm thinking it was less.



16 (Pages 58 to 61)

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1 Q All right. You think it was less than2 six hours?3 A I think it is.4 Q All right. Do you think that -- is there5 a way that you can pull up your invoices if we take a6 break to see if you can find it?7 A No, I haven't made it yet, I believe. I8 could get, you know, make it and get it to you, if that9 helps.

10 MS. SHAW: All right. Could you please11 add that to your list?12 And we'll also ask your attorney David if13 he would check his records to see if maybe he might14 have the -- another invoice that's not included here.15 BY MS. SHAW:16 Q And have you been asked to come to Texas17 for trial?18 A Yes.19 Q Do you have a date that you were given?20 A No. I mean, I know there was a date for21 a trial but not a specific date of testimony.22 Q Okay. What was the date that you were23 given for trial?24 A I don't have that in front of me right25 now. I believe it's March -- I don't know.

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1 Q Okay. So there's -- I think that may2 have been a -- there may have been at one time but3 we're working on some other trial dates.4 A Okay.5 Q So whatever the trial date is, as long as6 you know it far enough in advance, you'll figure out7 how to get there, I take it?8 A Correct.9 Q All right. Thanks.

10 So I think I had one question in your11 Exhibit 6 --12 A Okay.13 Q -- which is what I reviewed first. I14 think you've answered that, when you say radiologists15 can no longer rely on the final report to be the16 definitive means of communicating the result. And so17 when you say can no longer, you're talking about back18 in the day when the radiologist, it was mailed as a19 final written report, and you're saying you can't rely20 on that any more; is that correct?21 A In some cases, correct.22 Q Okay. With the advent of EMRs, are you23 familiar with patient portals and physician portals so24 a referring physician can check a radiology report from25 a portal?

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1 A Yes.2 Q Does your company offer that?3 A Yes.4 Q And is that available to all of your5 referring physicians?6 A Yes.7 Q All right. And you understand that was8 available to the referring physician in this case as9 well?

10 A I don't doubt it.11 Q All right. So how long have you all had12 that feature or ability?13 A I think we've had it for five years14 maybe.15 Q And do you find that your referring16 physicians use it, like it, get good feedback?17 A Some use it more than others. Some who18 like to really look at the images themselves love it.19 Others don't use it as much.20 Q All right. But the report is available21 there as well; correct?22 A Correct.23 Q And when you hit that button, it becomes24 available to them; correct?25 A I believe so. I don't know what the --

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1 if there's any delay but --2 Q Okay. Do you come across situations --3 let me first back up. On, let's just say, last week,4 how many direct calls did you make to referring5 physicians, you personally?6 A I'd be estimating but, you know, in a7 five-day week I would say ten to twenty.8 Q How many interpretations do you do a day?9 A Averages around sixty.

10 Q How many radiologists do you all have11 reviewing and interpreting?12 A We have two full-time radiologists and13 two part time.14 Q And what's the volume of referrals on15 average that y'all get a week or a month or however you16 track it?17 A I don't have that available.18 Q Is it hundreds a week, thousands between19 your whole group in general?20 A Yeah. I would think in the -- near a21 thousand give or take.22 Q And how often when you call the23 physicians do they talk to you about, yeah, I saw that,24 I saw the interpretation, and thank you for the call?25 A That's not common because if I'm calling



17 (Pages 62 to 65)

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1 them, they haven't gotten the interpretation written2 yet.3 Q Okay. That's right. If you're calling,4 it's before you even do your report; correct?5 A Correct.6 Q Now, you've read the procedure that the7 plaintiff's tech Carrie Hanscom testified about. I8 know you may not recall all of the details but -- and9 you read, I think it was Nancy Newton's deposition and

10 Mr. Wright's, about the procedure that North Star11 imaging had for communicating results.12 It's very clear that the ACR recognizes13 that there are many different ways and vehicles and14 procedures nowadays that are all, while different,15 appropriate for communication. Do you agree with that?16 MR. BENFORD: Object to form.17 THE WITNESS: No. And I think what18 they're saying is there's things that are appropriate19 for routine communication, and there are things that20 are appropriate for nonroutine communication.21 MS. SHAW: Object to nonresponsive.22 BY MS. SHAW:23 Q Because I'm just asking, I believe the24 ACR -- and we'll get to the language -- it just allows25 for a variety of either -- because of the technology

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1 and because of clinics with staff, it recognizes that2 there may be many different ways to get information3 communicated to a referring physician. Do you agree4 with that?5 A Oh, I agree with that, yes.6 Q And, of course, the referring physician7 himself has a responsibility to be involved in getting8 that information; correct?9 MR. BENFORD: Object to form.

10 THE WITNESS: Correct. He's responsible11 for reading the report he ordered, correct.12 BY MS. SHAW:13 Q Well, if a referring physician is highly14 suspicious of pneumonia or something serious for his15 patient, according to ACR, he certainly has the16 responsibility to follow up and make sure he gets the17 information from the radiologist; correct?18 MR. BENFORD: Object to form.19 THE WITNESS: Right. I mean, not just in20 that case but I think they would say in any case where21 the referring physician's actually ordered, made an22 order for a chest x-ray, they have a responsibility to23 read the result.24 MS. SHAW: Objection, nonresponsive.25

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1 BY MS. SHAW:2 Q But I do agree with that statement.3 A Oh.4 Q My question goes more to what you're5 describing in this case is what you're saying is a6 situation that could potentially adversely affect, this7 is what you're saying, I believe, the patient if it's8 not communicated; correct?9 A In this case.

10 Q Right.11 A Oh, correct.12 Q So if the referring physician who has13 been treating the patient over a period of time and is14 highly suspicious of pneumonia or a serious onset of15 something that could adversely affect his patient, he,16 too, has the responsibility to make sure he gets that17 results; correct?18 MR. BENFORD: Object to form.19 THE WITNESS: In that hypothetical, yes.20 MS. SHAW: Thank you.21 BY MS. SHAW:22 Q In your report, and again I'm referring23 to Exhibit 6, I think you have a lot of the same24 language in Exhibit 5, but you're relying on the ACR to25 support your opinion; is that correct?

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1 A Yes. The ACR is supporting my opinion,2 correct.3 Q And on page 2 where you're addressing the4 reasonable standard of care on Exhibit 6, you use the5 term it's necessary, it's required, requires, you use6 that term several times as to the ACR requires this,7 requires that; is that correct?8 A Let's see. Do you have a specific line9 that you're --

10 Q Well, in the middle of the paragraph you11 say that the ACR describes at least two scenarios in12 which a nonroutine or direct communication of the13 radiologic finding is required.14 A Right.15 Q And there are, in the 2010 ACR16 guidelines, there were very specific itemized17 categories of when this type of communication is18 required; correct?19 A Yes.20 Q And if it's not specified in the 2010 ACR21 guidelines, then it is -- it becomes a judgment call of22 the radiologist; correct?23 MR. BENFORD: Object to form.24 THE WITNESS: Well, I mean, it's what is25 the standard of care, and there is really -- my opinion



18 (Pages 66 to 69)

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1 about the ACR gives these three scenarios which covers,2 I think, the majority of nonroutine communications. If3 it fell outside that, your question would it be a4 judgment call, I could see that if it didn't fall in5 one of those categories.6 MS. SHAW: Objection, nonresponsive, up7 until I can see that.8 BY MS. SHAW:9 Q And that's really, I was focusing on if

10 it wasn't a pneumothorax and those things that are11 specifically itemized, it becomes a judgment call of12 the radiologist as to whether it's a routine or13 nonroutine; correct?14 MR. BENFORD: Object to form.15 THE WITNESS: Well, I guess, if you're16 saying -- you mentioned in your question, number 1,17 under nonroutine communication situation (a)(i) or18 (a)(1), but there's an (a)(ii) and an (a)(iii) as well.19 So does your question include all of those or just the20 pneumothorax?21 MS. SHAW: Objection, nonresponsive.22 We'll wait until I get to the ACR. I've23 got it here so I'll compare the two so we're on the24 same page as to the question and answer, but thank you.25 THE WITNESS: Okay.

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1 BY MS. SHAW:2 Q But then you go on, I mean, you've used3 the word it's necessary and it's required by ACR I4 think two or three more times in this paragraph on page5 2 of Exhibit 6; correct?6 A Okay. So I see the word required. Yeah,7 I see required again in the second to the last line,8 right.9 Q Okay. And then another thing that your

10 opinion is based upon is that Dr. Pak relied on the11 automated fax system which malfunctioned; that's on12 page 3. Is that correct?13 A That's correct.14 Q And you're saying that under ACR it's not15 appropriate to rely simply on the automated fax system;16 correct?17 A In nonroutine situations, correct.18 Q In any situation?19 A No. No. If it's a routine, routine20 communication you can use the automatic fax machine.21 Q All right.22 A Yeah.23 Q So if it's a routine situation, there's24 no problem on relying just on the auto fax system; is25 that correct?

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1 A That's correct.2 Q And that's as to all circumstances that3 are nonroutine in your opinion?4 A Routine.5 Q Routine. Thank you.6 MS. SHAW: Can you correct that or do I7 need to ask it again?8 COURT REPORTER: I have it just the way9 you said it.

10 MS. SHAW: All right. Let me just restate11 it then.12 BY MS. SHAW:13 Q What you're saying is in all14 circumstances when it's a routine interpretation,15 routine findings, and it hasn't been requested stat,16 relying on just the automated fax system is17 appropriate; is that correct?18 A That's correct.19 Q And in the environment at a diagnostic20 clinic where there are patient portals and there are21 systems in place for the staff to make sure22 communications get to referring physicians, in your23 opinion that doesn't matter because it's the24 radiologist's responsibility and he can rely on the25 automated fax system in routine matters; correct?

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1 A Correct. As far as the radiologist's2 duty or standard of care, he can rely on the fax3 machine in routine cases.4 Q All right. And you're not really5 familiar with relying on a policy, procedure or -- that6 a tech or someone else is going to get the7 communication out, confirm that it goes out, because8 from your point of view it's okay just to rely on the9 automated system?

10 A For the radiologist.11 Q Right.12 A Correct.13 Q And so then when you say, which14 malfunctioned in this case, what do you mean by that?15 A Well, my understanding is that the fax16 for some reason didn't go from where it was initiated17 to where it was supposed to end up.18 Q Did you review any evidence that showed a19 malfunction in the fax system at North Star?20 A I saw where it attempted to fax a few21 times but it just failed. That's my understanding.22 MS. SHAW: Objection, nonresponsive.23 BY MS. SHAW:24 Q Did you see anything that showed that the25 system that North Star had had a malfunction in any



19 (Pages 70 to 73)

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1 way?2 A I guess what I'm saying is by defining3 malfunction, if it didn't properly do its job in that4 moment, I call that a malfunction.5 Q And you would call that a malfunction6 whether the referring physician's machine was turned7 off or nobody received it or whatever happened on the8 other end, if that referring physician is saying they9 didn't receive it, that would be in your definition of

10 malfunction?11 A Well, actually, no. I mean, if it was --12 you know, that wouldn't fall -- I would say a better13 phrase probably would have been the -- the automatic14 fax system, which would mean not just the equipment at15 North Star but also the process may have been a better16 word, to go from one place to the other, that17 malfunctioned. So it doesn't necessarily have to be18 that there was something physically wrong with North19 Star's fax machine; it's just that the system failed.20 Q And that's how you're defining21 malfunction?22 A Correct.23 Q And you're including whether part of that24 system was with Dr. Friedman and whatever happened on25 his end as well; correct?

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1 A It could, yes.2 Q Okay. Now, you go on to state that3 Dr. Pak's failure to call the report in resulted in her4 death as stated in the autopsy report.5 Do you have that autopsy report?6 A I do, I think.7 Q Before you go there, let me ask you this.8 A Okay.9 Q Because this question -- this statement

10 is somewhat ambiguous to me. You're not saying that11 the autopsy report suggests that Dr. Pak actually had12 anything to do with her cause of death; correct?13 A Correct.14 Q You're saying, what I saw in the autopsy15 report as her cause of death somehow correlated with16 what Dr. Pak did or didn't do?17 A Her death, and then as stated in the18 autopsy report, meaning that she died of sepsis.19 Q Do you understand that there's a lot of20 experts in this report that are infectious disease21 doctors and internal medicine doctors, and there's a22 lot of variety of opinions with regard to the timing of23 the onset, that she died of meningitis versus this,24 that and the other, but you're not really in a position25 to be qualified to attest to any of that, are you?

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1 A Right. As a radiologist, as far as the2 timing of when she was sick or could be salvaged,3 that's really beyond my scope, correct.4 Q Well, when you're correlating the cause5 of death directly to Dr. Pak's report, isn't it fair to6 say that you're not really qualified to address that7 causation opinion particularly in view of all the other8 experts that the plaintiffs have in this case?9 A What I'm saying as a medical doctor is

10 that general knowledge that you know about pneumonia is11 that in general, if it's treated, you have a pretty12 high chance of recovering, particularly if you get into13 a hospital. That's really what I meant. But as far as14 the time line, that's more in the scope of an15 infectious disease physician.16 Q Well, you understand she did get to a17 hospital that night, and again, there's a lot of18 internists and infectious disease doctors that are19 rendering opinions with regard to not just timing but20 the cause of death and what it may or may not correlate21 to. So is it fair to say that you're not in a position22 in your area of practice to be rendering causation23 opinions?24 MR. BENFORD: Object to form.25 MS. SHAW: In this particular case.

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1 THE WITNESS: Well, and again, I don't2 know what to say. My statement there, my opinion is3 just that if you, in general, you get to the hospital,4 treat her early, you'd have an improved outcome.5 BY MS. SHAW:6 Q And that is a very general statement.7 So, I mean, and it's basically from a radiologist's8 standpoint it's based upon speculation; correct?9 A Not totally speculation. What it's based

10 on is my experience in medicine as a doctor and knowing11 how they treat pneumonia and things that you do if they12 could do them earlier versus later.13 Q So if you would, go ahead and get your14 autopsy report.15 A Okay.16 Q From the autopsy report, what are the17 conclusions as to her cause of death?18 A Here it is. Cause of death:19 Streptococcus pneumonia and sepsis with meningitis and20 lobar pneumonia.21 Q All right. Now, if there were clinical22 indicators that she actually had sepsis with meningitis23 at around or before the time she even presented to24 Dr. Pak, are you in a position to have the25 qualifications to render opinions on causation under



20 (Pages 74 to 77)

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1 that scenario?2 MR. BENFORD: Object to form.3 THE WITNESS: Right. Again, I think4 you're talking about a time line, and I'm going to5 defer to the infectious disease on the time line of6 this.7 BY MS. SHAW:8 Q And likewise, if after she presented to9 Forest Park Hospital and her condition changed with

10 regard to the meningitis, as a radiologist you're not11 really in a position to address causation as to that12 particular situation either; correct?13 A That's correct.14 Q All right. Thank you.15 And then the opinions that you have in16 your initial report, Exhibit 6, correlate with what you17 believe to be nonroutine findings that required the18 physicians to make a call as opposed to relying on any19 system; correct?20 A Correct.21 Q And you would agree that the referring22 physician shares responsibility in the communication23 process to get information for his patient; correct?24 MR. BENFORD: Object to form.25 THE WITNESS: Right. He has a

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1 responsibility to read a report.2 MS. SHAW: Well, I'm going to object to3 nonresponsive.4 BY MS. SHAW:5 Q But you have said that twice, he has a6 responsibility to read the report. But according to7 ACR, it just says they have a responsibility -- they8 share in the whole communication process in terms of9 getting information about their own patients; correct?

10 A Let me look at it and see exactly what11 they say.12 Q All right. I'm going to get to the ACR13 report, so I --14 A Oh, I'm sorry. Okay. I thought you were15 asking me a question.16 Q Since you were relying upon it, I thought17 you might be familiar with that.18 A Well, the exact verbiage I thought I19 might want to refresh my memory.20 They have a dual responsibility to read21 the report on what they ordered. So if it's a routine22 case, they need to eventually look at the report.23 Q Okay. So as to what you're going to tell24 the jury, it's your opinion that the only25 responsibility the referring physician has is to read

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1 the report; is that correct?2 MR. BENFORD: Object to form.3 THE WITNESS: I mean, I can't give4 opinions about the referring physician other than if he5 orders a study, he needs to -- also he has a6 responsibility to read the report. So the radiologist7 has to write the report, and he has to -- has8 responsibility to make sure he reads the report.9 BY MS. SHAW:

10 Q As a radiologist, do you have any11 expectation of referring physicians calling the12 radiology or calling your clinic to make sure they get13 the findings if they haven't received the report?14 A If they haven't received it and they know15 like this is strange, you know, we ordered this a week16 ago, I know she was done a week ago and we haven't17 gotten a report, then yes.18 Q So you can wait as long as a week?19 A Well, every situation is different. But,20 you know, routine cases, you know, you can go easily a21 few days generally. It depends whenever they --22 sometimes whenever their follow-up appointment is23 they'll realize, hey, we haven't got a report.24 Q So in your practice how many times a week25 do you get calls from physicians saying I'm concerned

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1 about my patient, haven't gotten the report yet,2 wondering if you got to it or what can you tell me3 about it, something like that, do you get those calls?4 A That's not common. If it was ordered as5 a wet read or a stat, then you can occasionally get a6 call because they really want to push it, let's go,7 let's read it, let's get the information. But for8 routine cases, it's not very common.9 Q So if the referring physician is

10 concerned enough about a patient to get a wet read or a11 stat, they may be calling before they get the report12 because they're concerned about the patient; correct?13 A It can happen, yes.14 Q Okay. So you're saying at least once a15 day you're reviewing x-rays for infiltrates; correct?16 A I think you said how often do I see an17 infiltrate. I thought that was the question before, I18 could be wrong. But I can see an infiltrate maybe once19 a day.20 Q And is that a common finding?21 A Well, like I said, infiltrate is a very22 broad --23 Q Infiltrates that correlate with cough you24 said is very, very common?25 A Yeah. So an infiltrate usually is a



21 (Pages 78 to 81)

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1 nonconsolidating opacity. That's fairly common,2 usually small. Now lobar pneumonia as opposed to it is3 not common.4 Q Is it your position that every case where5 pneumonia is identified becomes a nonroutine case for a6 radiologist to make a call?7 A I would say it depends on the pneumonia.8 I would say if they said -- well, see, here's the9 problem with the question. If it's ordered routine, I

10 would say yes. I would change it to stat and make the11 call.12 Q On every read of pneumonia, is that what13 you're saying?14 A Of pneumonia, yes.15 Q And did you read Dr. Friedman's testimony16 in this case?17 A At some point, yes.18 Q Where he was highly suspicious that she19 had pneumonia but he didn't think he would get the20 report back that evening, so he was fine with waiting21 until the next morning; correct?22 A I don't recall that specifically but --23 Q If that's coming from the treating24 clinician, would that correlate with situations that25 have occurred in your clinic?

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1 A I'm not sure how to answer that. I can2 only answer from the standpoint of a radiologist.3 Q Yeah. If someone comes for an x-ray,4 chest x-ray, where the primary care provider is highly5 suspicious of pneumonia, but they come in the late6 afternoon, is it your understanding that like7 Dr. Friedman it would be -- the expectation would be8 all right for the primary care provider to wait for the9 next morning to get the report?

10 MR. BENFORD: Object to form.11 THE WITNESS: See, again, the question12 doesn't make sense from a radiologist's standpoint13 because we wouldn't know their suspicions unless they14 ever wrote down, highly suspicious for cancer, which15 they never do.16 MS. SHAW: All right.17 THE WITNESS: I mean, for pneumonia. I'm18 sorry.19 BY MS. SHAW:20 Q So there would be a difference of opinion21 as to from the primary care provider's standpoint,22 who's been treating the patient, who's highly23 suspicious of pneumonia and he thinks it's okay to wait24 for the next morning, that would be from the family25 practitioner's standpoint as opposed to the radiology

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1 standpoint; correct?2 A That's correct.3 Q But given that that was his position, is4 it fair to say that most primary care providers don't5 find pneumonia to be a stat or an urgent type of6 diagnosis?7 MR. BENFORD: Object to form.8 THE WITNESS: Yeah, and again, I can't9 speak to what most family practitioners think. But I

10 would say, pertaining to this case, that I think most11 would agree that multilobar pneumonia is a serious12 thing.13 MS. SHAW: Objection, nonresponsive.14 BY MS. SHAW:15 Q So the opinions as to Dr. Pak, have we16 covered all your opinions that you have in your report17 or that you're going to have at trial with regard to18 Dr. Pak?19 MR. BENFORD: Object to form.20 THE WITNESS: Okay. So correct me if I'm21 wrong, we covered that he did not make a phone call to22 Dr. Friedman and relied on the fax machine?23 MS. SHAW: We did cover that.24 THE WITNESS: Okay. Yeah, that really is25 the main, the main opinion I have.

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1 BY MS. SHAW:2 Q All right. That's your main opinion.3 Are there any other opinions that you4 have developed or that you have that you'll be5 testifying to at the time of trial with regard to6 Dr. Pak?7 MR. BENFORD: Object to form.8 THE WITNESS: Not that I can think of,9 no.

10 BY MS. SHAW:11 Q All right. And, of course, if you do,12 please let your attorney know so we can have a13 supplementation of your opinions at least 30 days prior14 to trial. Okay?15 A I will.16 Q Thank you.17 Now, as to radiology clinics in North18 Texas, do you have any specific opinions other than19 those which relate to Dr. Pak against Radiology20 Associates of North Texas?21 A Besides Dr. Pak, you're saying?22 Q That's correct, who was an employee.23 A No. My only -- again, when I read the24 results policy itself, which is dated July 20, 2010, I25 think it reads as satisfactory policy. My only concern



22 (Pages 82 to 85)

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1 is when I read Dr. Phelps' interpretation of the2 policy, that if he were actually teaching or telling3 other radiologists that that's how it should be4 followed, then I would have a criticism of that.5 MS. SHAW: Objection, nonresponsive.6 BY MS. SHAW:7 Q I understand you did not agree with8 Dr. Phelps' interpretation; correct?9 A Right. I did not agree with his

10 interpretation of the written policy.11 Q All right. But as I read your Exhibit 5,12 which was the report of May 15, 2015, after you were13 given more documents, you disagreed with his14 interpretation, his testimony, but as far as I can15 tell, there's not actually any other or different or16 new -- strike that.17 There are no specific opinions that you18 have with regard to Radiology Associates of North Texas19 as it relates to the standard of care; correct?20 A I believe so, yes.21 Q All right.22 THE WITNESS: Can I take a one second23 break to get that phone call?24 MS. SHAW: Absolutely.25 (Recess)

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1 BY MS. SHAW:2 Q Just to follow up on Radiology Associates3 of North Texas, you did testify earlier that it's not4 uncommon for the radiology groups to track the ACR at5 clinics and/or their standard of care that they're6 familiar with as opposed to having anything7 specifically in writing for a diagnostic clinic;8 correct?9 A Correct.

10 Q All right. And I think you also made a11 reference that it may be different at hospitals. They12 may have these type of policies, but it's not necessary13 for clinics or outfits like Radiology Associates of14 North Texas to have them for outpatient clinics;15 correct?16 A Correct.17 Q All right. Now, we've referenced the ACR18 several times, so let's go ahead and go through the ACR19 that is what you're relying upon in part. All right?20 A Okay.21 Q And before we get started, I do want to22 clarify that it's your opinion that any request for a23 chest x-ray that has cough where pneumonia is diagnosed24 or radiologically diagnosed becomes a nonroutine25 finding; correct?

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1 A Correct.2 Q All right. Now, starting on page 1, the3 preamble very specifically states that the guidelines4 under ACR is an educational tool; correct?5 A Correct.6 Q And that it is not intended to be a7 requirement of practice; correct?8 A That's what they write, correct.9 Q And it also very specifically says, nor

10 should they be used to establish a legal standard of11 care; correct?12 A Correct.13 Q And I take it you would agree with those14 statements?15 A Well, that's what they're saying. But16 they also say if you employ an approach substantially17 different than these guidelines, that you need to18 document it. But that is what they do say to answer19 your question, yes.20 MS. SHAW: Okay. So I'm going to have to21 object to everything as nonresponsive except, that is22 what they do say.23 BY MS. SHAW:24 Q And my actual question was, do you agree25 with their preamble?

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1 A I don't agree that it can't be used2 for -- to support a view of the standard of care. I3 think what they're just trying to say, they don't want4 you just to completely rely on something they're saying5 in the guidelines. Now, that's my opinion.6 MS. SHAW: I'm going to object to your7 nonresponsiveness because the preamble doesn't say it8 can't be used and that's not the question I asked, so9 let me reask the question.

10 THE WITNESS: Okay.11 BY MS. SHAW:12 Q Right now we're just on paragraph one in13 the preamble. Do you agree with the statements that14 I've covered with you in paragraph one of the preamble?15 MR. BENFORD: Object to form.16 THE WITNESS: Yeah. Can you repeat the17 question?18 BY MS. SHAW:19 Q The ACR has very -- the paragraph one20 clearly states, it's the ACR, it's not inflexible.21 It's not a requirement of practice, should not be used22 to establish a legal standard. It's cautioned against23 the use of these guidelines in litigation when clinical24 decisions are called into question.25 Do you agree with those comments that are



23 (Pages 86 to 89)

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1 in the ACR preamble? Do you think they're correct?2 A I don't know how to answer that question3 because, I mean, they're not stating whether I agree or4 disagree with it. This is just what they're saying.5 It shouldn't be used to establish a legal standard of6 care, but the document contains many items which are7 the standard of care.8 MS. SHAW: Objection, nonresponsive.9 THE WITNESS: I'm not sure how to answer.

10 BY MS. SHAW:11 Q So I believe your answer is, no, I don't12 agree. Is that --13 MR. BENFORD: Object to the form.14 THE WITNESS: I don't think it's a yes or15 a no. I just -- they're stating that they don't want16 it used as an established, a legal standard of care and17 caution, but in some cases it overlaps what the18 standard of care is and what's in this document.19 BY MS. SHAW:20 Q Well, you just stated that it actually21 does set the standard of care as you go into other22 portions --23 A It does.24 Q -- of the ACR, and you're saying it does;25 correct?

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1 A Correct.2 Q All right. And so going on to the next3 paragraph: The ultimate judgment regarding the4 propriety of any specific, your course of action would5 be applicable, must be made by the physician in light6 of all the circumstances presented.7 Do you agree with that statement?8 A Yes.9 Q And the next sentence states that: An

10 approach that differs from the guidelines, standing11 alone, does not necessarily imply that the approach was12 below the standard of care. Correct?13 A Correct.14 Q All right. And it's your position that15 Dr. Pak's approach differed from what ACR set forth in16 its guidelines; correct?17 A That's one of my positions, right.18 Q All right. And you understand that19 according to Dr. Pak, Dr. Ginsberg, Dr. Phelps and20 others, it's the position that in fact Dr. Pak did21 exactly follow the ACR guidelines; correct?22 A I'm sorry. I didn't understand that.23 Q Do you understand what Dr. Pak's position24 is in this case?25 A Dr. Pak believes --

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1 MR. BENFORD: Object to form.2 THE WITNESS: My understanding is that he3 believes he met the standard of care by faxing the4 report.5 BY MS. SHAW:6 Q Is there anything else that you7 understand about his position?8 MR. BENFORD: Object to form.9 THE WITNESS: It's too broad a question.

10 I don't know how to answer that.11 BY MS. SHAW:12 Q Well, do you agree that according to13 Dr. Pak, Dr. Phelps, Dr. Ginsberg, and actually some14 other reports and discovery that you've looked at, that15 according to Dr. Pak and those others that I've just16 covered, it's their position that he did in fact follow17 the ACR guidelines?18 MR. BENFORD: Object to form.19 THE WITNESS: If that's their position,20 then I disagree with them, correct.21 BY MS. SHAW:22 Q Did you understand that to be their23 position?24 A My understanding was that they felt he25 met the standard of care. I do know that there was

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1 some references that he also met the ACR guidelines,2 but I disagree with that.3 Q And the sole basis for that disagreement4 is in your judgment this called for a nonroutine5 communication, and in Dr. Pak's opinion it was a6 routine communication; correct?7 A Well actually, it would be just my8 opinion, but in my experience and knowledge and9 training, multilobar pneumonia is a serious, life

10 threatening finding and so it clearly calls for a11 nonroutine communication.12 MS. SHAW: Objection, nonresponsive.13 BY MS. SHAW:14 Q The sole basis for the difference in15 opinion is you believe this to be a nonroutine16 communication, and Dr. Pak, in his judgment call, it17 was a routine communication. That's the sole basis of18 the difference of opinions; correct?19 A I don't know if it's the sole, I have to20 think about that, but it is a difference in opinion.21 Q All right. It's not your sole opinion --22 A Right.23 Q -- but when you get to -- what do you24 base your opinion on, if he had followed a different25 track that you're suggesting as to a nonroutine, then



24 (Pages 90 to 93)

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1 you wouldn't have these criticisms?2 A Correct. Right. He treated it as a3 routine case, correct.4 Q All right. But even though the referring5 physician didn't ask for it stat, he actually reviewed6 it stat, did everything very quickly and correctly in7 his interpretation; correct?8 A I didn't understand that. You said the9 referring physician?

10 Q Even though the referring physician did11 not ask for a stat report, he did not check a box that12 said call me with your results or have the patient13 bring the results because she was then going to14 Dr. Friedman's office, even though he didn't do any of15 that, Dr. Pak did review the film quickly, within stat16 parameters, and the content of his report was correct17 and it was interpreted correctly, the film.18 Do you agree with that?19 A I agree.20 Q All right. And how long has it been your21 understanding of the standard of care that all22 pneumonia films are to follow a nonroutine path?23 A When did I first come to that?24 Q Uh-huh.25 A I wouldn't be able to pinpoint a time,

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1 but clearly as long as -- at least as long as when the2 ACR used to be called the ACR Standard for3 Communication of Diagnostic Imaging Findings, number4 (iii), findings that interpreting physician reasonably5 believes may be seriously adverse to the patient's6 health and are unexpected by the treating or referring7 physician, these cases might not require immediate8 attention, but if not acted on, may worsen over time9 and possibly result in an adverse patient outcome.

10 So that's sort of where pneumonia falls11 in.12 Q Well, if this is what you learned in your13 training and this is what you've always believed or for14 quite some time, what have you, why wouldn't it be, in15 2010, why wouldn't it be on the list where it has16 pneumothorax and the other very specifically identified17 categories, why wouldn't they just add that there if it18 was always an urgent finding?19 MR. BENFORD: Object to form.20 THE WITNESS: Right. And here's the21 answer. Again, you're referring to situation (a)(i),22 and that's the immediate or urgent intervention case.23 And they just listed some things, pneumothorax,24 pneumoperitoneum, significantly misplaced line or tube.25 But then there's category (ii) and there's also

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1 category (iii) where they really don't give specific2 examples.3 BY MS. SHAW:4 Q All right. And as to category three,5 from reviewing Dr. Friedman's deposition where he said6 he was highly suspicious or very concerned that she had7 pneumonia, you would agree, then, that the finding was8 not unexpected by the treating or referring physician?9 A You know, I can't speak for him, and this

10 is -- it's hard to describe it. There's pneumonia and11 then there's multilobar pneumonia, much more serious.12 So I don't know what he was thinking exactly. Did he13 think she had a small area of pneumonia not as serious,14 or did he think she had multilobar pneumonia, a15 bacterial pneumonia. So pneumonias are different in16 severity.17 MS. SHAW: Objection, nonresponsive.18 BY MS. SHAW:19 Q Just hypothetically, generally speaking20 if a primary care provider states that he's highly21 suspicious and concerned that his patient has22 pneumonia, would you agree that that would be an23 interpretation that would suggest that the referring24 physician expected the diagnosis of pneumonia?25 MR. BENFORD: Object to form.

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1 THE WITNESS: I can't answer that. It's2 outside my scope as a radiologist.3 BY MS. SHAW:4 Q Well, you're relying upon this Roman5 numeral (iii) to sort of hang your hat on to support6 the opinion against Dr. Pak in this case, and one of7 the phrases that's key to the interpretation is,8 unexpected by the treating or referring physician.9 So as an expert and an owner of a clinic,

10 if a primary care provider states that he's highly11 suspicious and very concerned that she had pneumonia,12 would you agree that then that is not an unexpected13 finding by the treating or referring physician?14 MR. BENFORD: Object to form.15 THE WITNESS: I would disagree, and16 here's why. He may be highly suspicious of pneumonia,17 but I don't have any idea whether he's suspicious for18 multilobar bacterial pneumonia.19 MS. SHAW: Objection, nonresponsive.20 BY MS. SHAW:21 Q So when it comes to just whether or not22 the finding of pneumonia was expected or unexpected,23 you can't answer that question?24 A The general category of pneumonia, no, I25 couldn't answer it by what was provided to Dr. Pak.



25 (Pages 94 to 97)

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1 Q Then in nonroutine communications, Roman2 numeral (iii) that you're relying upon, category (a)3 clearly says that it may require, not always but may,4 require nonroutine communications?5 A You're talking about number (iii),6 (a)(iii)?7 Q 2(a).8 A Oh, 2(a). Oh, correct. The top9 sentence, yes.

10 Q So you agree that, then, (i), (ii) and11 (iii), (iii) being the one you're relying upon under12 (a), may require nonroutine communications but it is a13 judgment call to be determined by the radiologist;14 correct?15 A These are in general, correct, not in16 this case.17 MS. SHAW: Objection to nonresponsive.18 BY MS. SHAW:19 Q When methods of communications are20 covered, and let's look at nonroutine communications.21 You've got in the first sentence under nonroutine it22 says, through the usual channels established by the23 hospital or diagnostic imaging facility. Correct?24 A Correct.25 Q All right. So it's talking about

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1 whatever the usual channels are at the diagnostic2 imaging facility is the method of communication that's3 suggested by ACR; correct?4 A Correct.5 Q All right. And then when we go down to6 methods of communication in category 2(c), it also7 reiterates that communication methods are dynamic and8 varied; correct?9 A Correct.

10 Q And then I think about the fourth11 sentence, right under the middle of the first paragraph12 under (c) it says: Communications, as to the13 communications; this may be accomplished directly by14 the interpreting physician or, when judged appropriate,15 by the interpreting physician's designee.16 Correct?17 A Correct.18 Q And then at the very latter part of the19 last paragraph under (c) it said:20 If confirmation or other response is not21 received within a time appropriate to the diagnosis22 after the initial communication, a staff person should23 notify the clinician to document follow-up.24 Is that correct?25 A That's correct.

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1 MS. SHAW: All right. Dr. Fanney, I'm2 not entirely done yet, but I've pretty much covered all3 my key areas. I've got some other housekeeping matters4 that I want to follow up but I'm going to pass the5 witness because a couple other attorneys want to ask6 you a few questions and then I'll be organized and I'll7 be faster to finish up, so thank you.8 MR. ESTES: We'll reserve at least for9 now.

10 MR. QUILLIN: Can we go off the record?11 (Discussion off the record)1213 EXAMINATION14 BY MR. QUILLIN:15 Q Dr. Fanney, I represent North Star in16 this matter. In reviewing your report dated May 15,17 2015, I don't see that you offered any criticisms of18 North Star in your report. Is that fair?19 A Yes.20 Q And it's my understanding that you do not21 intend to offer any criticisms of North Star at the22 time of trial. Is that fair?23 A Yes.24 MR. QUILLIN: Thank you. I'll pass the25 witness.

Page 97

1 MS. BAILEY: I'll reserve my questions at2 this time.34 EXAMINATION5 BY MR. LUNINGHAM:6 Q My name is David Luningham. I represent7 Forest Park Medical Center. It's my understanding from8 reading your report that I didn't see any opinions9 regarding Forest Park; is that correct?

10 A That's correct.11 Q And so do I understand correctly at the12 time this case goes to trial that you don't intend to13 offer any opinions regarding the care and treatment14 that was rendered in this case by anyone at Forest15 Park?16 A That's true.17 MR. LUNINGHAM: All right. I don't have18 any other questions. Thank you, sir.19 MS. SHAW: Back to me.2021 EXAMINATION22 BY MS. SHAW:23 Q Okay. Dr. Fanney, let me just cover a24 few follow-ups. The Exhibit 4 was the e-mails --25 A Correct.



26 (Pages 98 to 101)

Page 98

1 Q -- that you produced including -- there2 were several e-mails in here that had to do with3 documents that you reviewed having to do with RANT's4 position as to the critical care policy or the ACR5 guidelines and such, and you reviewed those.6 Did they make any difference in your7 opinion?8 A No.9 Q And again, I'm pretty sure you answered

10 this but after reviewing David Phelps, who is the11 representative from RANT, his deposition, and the12 discovery that you were sent from Maria saying here's13 their explanation and such, you did not develop any new14 opinions as related to RANT and the standard of care;15 correct?16 A That's correct.17 (MRI-CT Diagnostics Physicans' Portal18 marked for identification as Fanney19 Exhibit Number 7)20 BY MS. SHAW:21 Q I'm going to ask you to look at Exhibit22 7, which is a physicians' portal about MRI-CT23 Diagnostics. Is that a true and correct depiction of24 either advertising or information about your diagnostic25 center?

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1 A Correct.2 Q Okay. Have you ever been involved in any3 criminal activity?4 MR. BENFORD: Object to form.5 THE WITNESS: No. I don't know what you6 mean.7 BY MS. SHAW:8 Q If there's background reports that say in9 the 2000s or the '90s or the '80s that say that you had

10 some kind of a criminal activity, do you know what that11 would be?12 A No.13 Q If a clinic such as yours does have14 procedures which are indicated as appropriate under the15 ACR for communicating reports, whether they be routine16 or nonroutine, would you agree that that's appropriate?17 A You're saying if our place -- I'm sorry.18 Can you repeat the question?19 Q Sure. The ACR guideline that we've just20 covered in detail provides for alternative means of21 communications through policies and other techniques22 whether they're written or not. Some of those we23 covered earlier in the depositions.24 Do you recall that?25 A Yes.

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1 Q So if -- if imaging centers have2 procedures for confirming the faxes go out and are3 making calls if there's any other issues, and they have4 procedures for that to make sure communication is5 adequately covered, would you agree that's in keeping6 with the standard of care?7 MR. BENFORD: Object to form.8 THE WITNESS: I'm not sure. It's kind of9 a broad question, but -- I don't know how to answer it.

10 It's just too broad.11 BY MS. SHAW:12 Q All right. Well, let's look back at your13 ACR policies, and on page 5 for the 2010 policy under14 Roman Numeral V, it addresses, in addition to what15 we've already talked about in terms of delegating and16 such, it says: Imaging department -- or in this case17 it would be clinics -- may have policies on18 communications which can be an effective tool to19 promote patient care.20 Would you agree with that?21 A You said page 5? I don't have that.22 Q Let me ask if you agree with that23 statement that as a director, and I take it you're part24 owner of the diagnostic clinic?25 A No.

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1 Q If an imaging department's policy on2 communication can be -- well, back up.3 A I found it.4 Q Okay. You found it?5 A Yeah.6 Q Okay. Do you agree with that statement,7 that one sentence under communication policies?8 A The first sentence?9 Q Yes.

10 A Yes.11 Q All right. And then we covered early in12 the deposition about how Carrie, I think it's Hanscom,13 how their group covers communications and checks every14 few hours. Do you recall that?15 A Correct.16 Q All right. And we also covered earlier17 today that David Wright and others had testified from18 the North Star, have a policy of following up every 3019 minutes to an hour to make sure that communications go20 through and confirming direct communications.21 Do you recall that?22 A Yes.23 Q And you recall reading their testimony24 about that?25 A Generally, yes.



27 (Pages 102 to 105)

Page 102

1 Q All right. Would you agree that under2 the ACR guidelines that that is one of the alternative3 methods of communication that is -- falls within the4 ACR guidelines?5 MR. BENFORD: Object to form.6 THE WITNESS: Well, faxing is certainly7 appropriate, if that's what we're talking about is8 checking the fax. That's what they were referring to9 is checking the fax machine.

10 MS. SHAW: All right.11 THE WITNESS: Yeah. So the fax machine12 is an appropriate method for routine communication of13 diagnostic imaging findings.14 MS. SHAW: Okay. Nonresponsive.15 BY MS. SHAW:16 Q Now, let me back up because the procedure17 that was testified about from Wright and others at the18 North Star MRI and Carrie Hanscom at her diagnostic19 group that she worked with or the imaging center that20 she worked with, collectively they all had different21 systems of not just faxing but making sure the faxes go22 through every 30 minutes to an hour at North Star, and23 Carrie Hanscom said we do it every few hours to make24 sure those faxes go through to the referring physician25 or to follow up with them if they did not.

Page 103

1 Do you agree that those systems with the2 staff helping like that is something that is3 appropriate under the ACR guidelines?4 A Yes.5 MR. BENFORD: Object to form.6 BY MS. SHAW:7 Q And you would agree that that is also in8 keeping with the standard of care?9 MR. BENFORD: Object to form.

10 MS. SHAW: Is that correct?11 THE WITNESS: Standard of care just to12 check? I mean, I don't think you -- I don't think you13 have to check that commonly and that would be a14 deviation from the standard of care. I think it's good15 practice to do.16 BY MS. SHAW:17 Q It is good practice to check to make sure18 the referring physician gets the report that's faxed19 through the system every 30 minutes or every hour or20 every few hours, that would be good practice; correct?21 A That's good practice.22 Q All right. In your diagnostic clinic23 you're not familiar with that practice because y'all do24 not have that procedure in place; correct?25 A Actually I just don't know.

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1 Q Well --2 A I don't know if they do it as frequent,3 so I don't know either.4 Q But if you don't know, that's what I'm5 saying, you're really not familiar and you don't rely6 upon that because you don't even know if you have it;7 correct?8 A I would not rely on the fax machine in a9 critical situation, that's correct.

10 MS. SHAW: Objection, nonresponsive.11 BY MS. SHAW:12 Q We're just talking about the procedure of13 having techs or a designated staff member follow up to14 make sure that the referring physician gets the report15 that's been interpreted. Are you following me?16 A Right.17 Q All right. So this is a step beyond just18 the fax system. Do you understand that?19 A Right.20 Q All right. And as we sit here today,21 this is not a system of communication that you rely22 upon because you don't even know if you have a system23 like that in place. Is that fair to say?24 A That's correct. I mean, I don't know if25 it's the same -- if we do have one in place, I don't

Page 105

1 know if it's the same as theirs either.2 Q Right. But as a radiologist, you're not3 familiar with what your own system is so you don't rely4 upon it, fair to say?5 A I don't rely upon the fax system we're6 talking about, right.7 Q And you understand it's not just a fax8 system that --9 A And, I understand, the whole process.

10 Q Right.11 A Right.12 Q So you don't rely upon that and therefore13 you're really not familiar with how those diagnostic14 clinics work that use those type of systems, fair to15 say?16 A I mean, I know how they work from what17 your description is; I just don't know what ours does.18 Q Well and there's no way you could rely19 upon that system if you don't know how it works, fair20 to say?21 MR. BENFORD: Object to form.22 THE WITNESS: Yeah, again, I think23 you're -- we're saying the same thing. I just don't24 rely on that system even if they checked it.25



28 (Pages 106 to 109)

Page 106

1 BY MS. SHAW:2 Q As a radiologist, is there any diagnosis3 that you could perform in a film an interpretation for4 meningitis?5 A Yes.6 Q What would that be?7 A You could do a contrast enhanced MRI8 study of the brain. It wouldn't be what we say9 pathognomonic, which would mean the findings you would

10 see would only be meningitis, but it would be highly11 suggestive.12 Q But it certainly wouldn't be a chest13 x-ray like the one that was involved in this case;14 correct?15 A That's correct.16 Q Have you ever testified or given a17 statement to the effect that you do agree that routine18 reporting of imaging findings is communicated through19 usual channels established by the entity, hospital or20 clinic? Have you ever made that statement?21 A Although I don't recall the specific22 instance of making that, it sounds like a true23 statement.24 Q If there are agencies out there that25 would say that you've done at least 70 depositions,

Page 107

1 about 95 percent are those for the plaintiff, 5 percent2 for the defendant, does that sound correct?3 MR. BENFORD: Object to form.4 THE WITNESS: No. I've heard that before5 and it's just not correct.6 BY MS. SHAW:7 Q Dr. Fanney, have you understood my8 questions here today?9 A Yes.

10 Q Have I been polite?11 A Very.12 MS. SHAW: Thank you. I believe that's13 all I have today. Thanks.14 THE WITNESS: Thank you.15 MR. BENFORD: I will reserve my questions16 until the time of trial.1718 (Deposition concluded at 12:10 p.m.)19202122232425

Page 108

1 CHANGES AND SIGNATURE

2 WITNESS: DARYL FANNEY, M.D.

3 DATE: FEBRUARY 5, 2016

4 Reason Codes: (1) to clarify the record; (2) to

5 conform to the facts; (3) to correct a transcription

6 error; (4) other (please explain).

7 PAGE LINE CHANGE REASON CODE

8 ____ ____ ______________________ _________________

9 ____ ____ ______________________ _________________

10 ____ ____ ______________________ _________________

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Page 109

1 COMMONWEALTH OF VIRGINIA AT LARGE, to wit:2 I, Olga Branum, RPR, Notary Public for the3 Commonwealth of Virginia at Large, of qualification in4 the Circuit Court of the City of Norfolk, Virginia, and5 whose commission expires September 30, 2016, do hereby6 certify that the within named deponent, DARYL R.7 FANNEY, M.D., appeared before me at Norfolk, Virginia,8 as hereinbefore set forth, and after being first duly9 sworn by me, was thereupon examined upon his

10 oath by counsel for the parties; that his11 examination was recorded in Stenotype by me and reduced12 to computer printout under my direction; and that the13 foregoing constitutes a true, accurate and complete14 transcript of such proceeding.15 The amount of time used by each party at the16 deposition is as follows:17 Ms. Diane Shaw - 2 hours, 45 minutes18 Mr. Edward Quillin - 1 minute19 Mr. David Luningham - 1 minute20 I further certify that I am not related to nor21 otherwise associated with any counsel or party to this22 proceeding, nor otherwise interested in the event23 thereof.24

25



29 (Page 110)

Page 110

1 Given under my hand and notarial seal this2 ____ day of February, 2016 at Norfolk, Virginia.3456 ______________________________________

Olga Branum, RPR7 Notary Registration No. 18047589

10111213141516171819202122232425





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daryl r. fanney, m.d. 2/5/2016 - ltc...

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