While working in a small primary-care practice, Mr. J handled a gamut of patients — from pediatric to the elderly. As a 36-year-old physician assistant, he shared the office with two seasoned physicians — one of whom had taken Mr. J under her wing several years earlier when he first arrived. Dr. Y had been gracious from the first meeting, teaching Mr. J the ins and outs of clinical approach. But Mr. J had noticed over the years that Dr. Y tended to take a more conservative approach to treatment — treating where she could and referring her patients to specialists when necessary. Dr. Y had been in practice for more than 30 years, was well respected, and had a network of specialists that she trusted and liked. The practice mainly handled general checkups and common problems, such as respiratory infections, flu, wound treatment, and the like. If anything more complicated arose, Dr. Y typically would refer the patient to a specialist, and she encouraged Mr. J to do the same.

A regular patient, Mr. F, aged 50 years, arrived one afternoon complaining of pain and difficulty urinating. Mr. J examined him, discussed the symptoms with him, and looked to see when Mr. F’s last prostate-specific antigen (PSA) test had been done. Records indicated that Mr. F had been tested 10 months earlier with normal results. Mr. J suspected that the patient was suffering from prostatitis and believed a referral to a urologist was the best course of action, but he first consulted with Dr. Y. She agreed with the suspected diagnosis and with the decision to refer Mr. F to a specialist.

“Does it makes sense to give the patient another PSA test?” asked Mr. J.

“No,” replied the physician. “He had one less than a year ago, and the prostatitis might skew the results.”

Mr. J noted in the patient’s chart that another PSA test should be scheduled after the urologist had treated Mr. F.

The urologist agreed with Mr. J’s diagnosis of prostatitis and prescribed antibiotics. The specialist followed up with the patient several weeks later, at which point Mr. F’s symptoms had subsided and he was having no further urinary issues. The urologist told Mr. F to follow up with his primary-care provider (PCP), and closed the file on him.

Because of scheduling issues, Mr. F did not see Mr. J or Dr. Y for several months. At that time, the patient’s PSA levels were elevated. The following month, a needle biopsy of the prostate showed that Mr. F had prostate cancer and a Gleason score of 8. Mr. F subsequently had radiation, surgery, and chemotherapy treatment, all of which failed. He died a year after diagnosis, leaving behind a wife and two grown children.

The patient’s widow was devastated by the swift decline and loss of her husband, and was furious at his clinicians for not finding the cancer earlier, when he might have been saved. She hired a plaintiff’s attorney who filed a malpractice lawsuit against Mr. J, Dr. Y, and the urologist, alleging that the clinicians were negligent in not ordering a PSA test sooner.

The clinicians were distraught by the death of their patient, but surprised by the lawsuit. They met with the attorneys provided by their insurance companies and discussed the situation. The attorneys advised against settling the case immediately. “For a jury to find you guilty,” said one attorney, “the plaintiff would have to show that you did not comply with the required standard of care. We can establish that you did in fact provide acceptable care to the patient.”

After a few futile settlement negotiation sessions, the case went to trial. Mrs. F’s attorney called an expert radiation oncologist who testified that the defendants should have ordered a PSA as soon as the patient showed symptoms, and if they had, it would have provided an early diagnosis, treatment, and cure because the cancer would still be localized enough for a surgical removal.

The defendants called an expert urologist who testified that both physicians had complied with the applicable standard of care. The expert testified that the urologist was under no obligation to order a PSA test because he was treating an acute, particular problem — prostatitis. The defense also called a urologic oncologist who was an expert in prostate cancer and who testified at great length about the controversy surrounding PSA testing. He explained that studies had demonstrated no benefit from PSA testing with regard to long-term survival. The expert also opined that the decedent’s particular type of cancer was very aggressive and that there is not much that can be done to treat a patient with a Gleason score of 8.

After deliberating for just over an hour, the jury found the clinicians not liable.

Legal background

To find a medical practitioner guilty of medical malpractice, four elements must be proven. Unless all four elements are proven, the defendant cannot be found guilty. The elements are: (1) a legal duty between the parties (which always exists between a patient and his or her health-care practitioner), (2) a breach of that duty (the practitioner failed to conform to the standards of care), (3) the breach was the cause of an injury, and (4) damages resulted. In this case, although there was a legal duty, the plaintiff could not prove that the physicians had breached that duty by failing to perform a PSA test. Frankly, even if the plaintiff had been able to prove a breach of the duty—that the clinicians were required to have done an earlier PSA test—she would have been hard-pressed to show that the breach was the cause of Mr. F’s death because of his aggressive type of cancer.

Protecting yourself

For the most part, these practitioners handled themselves properly. The patient was up-to-date on his PSA test at the time when Mr. J met with him. He was suffering from a specific condition—prostatitis—for which his PCPs referred him to a specialist. The urologist verified the suspected diagnosis and treated the patient for that problem, and in the absence of any other issue, referred the patient back to his PCPs. Dr. Y and Mr. J had regularly been testing Mr. F’s PSA and noted that it should be rechecked after the patient’s prostatitis was treated. Unfortunately, even if the PSA test had been done a month or two earlier, it would have made little or no difference in the patient’s outcome. While an early diagnosis is always the goal, sometimes even that will not be enough.