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DEFENDING THE R A DIOLOGIST in a medical malpractice case poses unique challenges. The plainti• 's attorney has the benefit of later-stage imaging and the patient's presumably bad outcome, both of which will be used to persuade a jury that some abnormality on earlier imaging scans conducted on the same location was missed. For example, defendant radiolo- gists often face the allegation of failing to detect a malignancy on a screening mammogram. To prevail against such a claim, the physician who interpreted the diagnostic study must be able to demon- strate that the imaging was appropriately evaluated and the finding in question was not present at the time — or, that it was so subtle it could only be appreciated with the benefit of hindsight. The successful defense of a failure to diagnose breast cancer case begins with a well-documented radiology report, including conforming to the BI-R ADS reporting system recommended by the American College of Radiolog y (ACR). The breast imager may also benefit from documenting the use of computer-aided detection (CAD). CAD computer software scans digital images for conspicuous structures, such as clustered microcalcifications, which can isolate potentially suspicious find- ings. While CAD is not a substitute for the trained eye of the radiologist, it is a viable tool for identif y ing a rea s of concern. Rega rdless of whether CA D sof t wa re identif ies a suspicious a rea of concern, the radiolog ist w i l l a lways be lega l ly responsible for the f ina l interpretation of a medica l image. CA D may ser ve as objective evidence in suppor t of the defense in litigation. A t t r i a l , t he pl a i nt i f f 's e x p er t w i l l a llege that the ma lignancy was missed, wherea s the defenda nt a nd his or her exper t will a rg ue that the f inding was not present at the time or was too subtle to be identif ied without the benef it of hindsight. W hether the a lleged fa ilure to identif y a suspicious f inding consti- tuted a depa r ture from the sta nda rd of ca re will be decided by a lay jur y. Being able to demonstrate that computerized sof twa re reviewed the sa me image a nd d id not ident i f y t he a rea of concer n ca n be a power f u l tool, if admissible at tria l, to tip the sca le in the favor of the defenda nt. W het her t he CA D f indings, or t he fact that it was used, a re admissible as evidence in cour t will be determined at the time of tria l. The tria l judge ser ves as a gatekeeper for what evidence may be presented to t he jur y a nd ha s t he discretion to exclude i n for mation if deemed to be inadmissible, hea rsay or too prejudicia l to one pa r t y. If the tria l judge determines the use of CA D or its f indings to be admissible, the results may help demonstrate that the finding in question did not reach the threshold of being suspicious for ma lignancy or necessitating additional evaluation. Additional medicolegal considerations that have yet to be resolved by the courts or the ACR include the potential impact of CAD on the standard of care and whether its findings should be preserved. The role of CA D in the defense of medicolega l cases is evolving. To date, it appears that one appellate level court has ruled on the admissibility of CAD at trial. 1 It rema ins to be seen whether this technology plays a significant role in the defense of the radiologist in alleged medi- cal malpractice cases. However, whether CAD can be used to advance the defense in litigation begins with documentation in the radiology report that the technology was employed. Thomas A. Mobilia is a Senior Partner at Martin Clearwater & Bell LLP. Daniel L. Freidlin is a Partner at Martin Clearwater & Bell LLP. ■ Reference 1. Gray v. Fairview General Hospital, 2004- Ohio-1244 (Ct. Appeals Ohio 2004). The O hio Co ur t of Ap peal s r u l ed th at th e defendant's expert could testify about his review of the CAD results for the imaging study in question. COMPUTER-AIDED DETECTION in Malpractice Litigation BY THOMAS A. MOBILIA,JD, AND DANIEL L. FREIDLIN, JD 12 L E G A L E A S E