A patient claims ignorance of an elevated PSA led to a late cancer diagnosis, despite many clinic visits.

Mr. P, 54, felt he had grown old with his patients at a small community clinic in the Northeast. He had been a physician assistant there for almost 25 years. But long-term patient relationships are no protection against hostile litigation, as Mr. P learned when the handling of a test result led to a malpractice suit.

The 52-year-old man came in for an annual physical, which included checking his prostate-specific antigen (PSA) level. No abnormalities were found on physical exam, but the PSA test results came back as 7.5 ng/mL (normal is <4.0 ).

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During subsequent legal proceedings, Mr. P testified that the patient kept a follow-up appointment approximately three weeks later. He said he told the man about his elevated PSA and advised him to see a urologist. The patient, however, adamantly maintained that he was neither informed of the PSA result nor referred to a urologist.

In the year after the test was taken, Mr. P saw the man about once a month for a variety of complaints and to monitor his antihypertension and statin medications. The elevated PSA was never discussed, Mr. P and the patient later agreed. Mr. P testified that he was uncomfortable discussing the issue, although he felt the patient was noncompliant by not seeing a urologist. The man reiterated his contention that the issue never came up.

About three years after the PSA test, the patient presented with very localized and persistent back pain. Plain x-ray revealed a probable metastatic carcinoma. This time, he followed up on a referral to a urologist who immediately sent him to a urologic oncologist.

The man was diagnosed with stage IV prostate cancer with distant metastases. He underwent resection of isolated metastases in two vertebrae and vertebral fusion to stabilize the spine. Shortly after recovering from this surgery, he sued Mr. P and his supervising physician.

The court papers claimed that Mr. P “failed to make a referral to a urologist upon discovering an elevated PSA of 7.5 ng/mL.” By this time, three years had passed since the disputed visit after that initial test. Mr. P immediately pulled the file. With some relief, he confirmed that his chart entries noted the test result and indicated that he had recommended the patient see a urologist.

During his deposition some two years later, the patient swore that Mr. P never mentioned the high PSA, nor did he suggest seeing a urologist, despite many office visits after the test. It was only when he presented with back pain that the referral was made. On the plus side, the man conceded that he had been disease-free for three years with no sign of recurrence.

In his testimony, Mr. P reconstructed each of the patient’s visits based on the chart entries. The plaintiff’s lawyer was particularly interested in the disputed visit. Examining the chart, he hinted that Mr. P had edited this entry after the lawsuit was filed. But the defense lawyer elicited testimony that the spacing, the type of ink, and the handwriting all suggested the entry was part of the original medical record.

On the basis of the patient’s testimony, the plaintiff’s expert urologist said that Mr. P had fallen below the standard of care and had continued his negligent conduct by not mentioning the needed referral at subsequent visits.

This expert estimated that Mr. P’s inaction had reduced the patient’s chances of five-year survival from 95% with early referral to about 5%. He noted that the man had required removal of secondary lesions in two vertebrae and subsequent spinal fusion.

The defense expert stressed that, according to the medical records, the patient had received a referral and that he had been in full remission for three years.

After the depositions, the defense lawyer made a strategy decision: She would file a motion to dismiss. The state statute of limitations was 2½ years, but this case had been filed three years after the alleged malpractice incident.

The plaintiff’s lawyer argued that the case should stand because Mr. P had seen the patient regularly from the time the PSA was tested. He therefore had other opportunities to tell the patient about the abnormal result and to make a referral. Even if the disputed visit occurred outside the statute of limitations, Mr. P had repeated opportunities to meet his obligation afterward.

The judge agreed. After studying the inch-thick briefs the attorneys submitted, he denied the motion to dismiss. Eventually, the case settled for $1.7 million. The plaintiff’s lawyer’s share was $850,000.

Legal background

Judges are usually loath to dismiss on a technicality if a case might have merit. But all legal systems have some type of statute of limitations to weed out “stale” cases. Records disappear, witnesses die, and memories fade over long periods of time. These statutes protect all parties from litigation that hangs over them indefinitely.

However, plaintiff’s lawyers have worked hard to create exceptions, such as the “continuous treatment doctrine.” It posits that dismissal should not be allowed when the patient is under ongoing treatment for the same condition. In this case, the patient’s continuous treatment was for a cardiovascular disease, not elevated PSA levels. Consequently, the judge rejected this argument as grounds for dismissal.

But another legal doctrine was in play here: the “continuing duty” theory. It contends that if a provider fails to advise a patient of abnormal results or to make a referral, this duty continues on subsequent visits, even if they are for unrelated matters. The judge accepted this argument and ruled that the case against Mr. P should proceed.

Protecting yourself

Not informing a patient of an abnormal test result or failing to make a referral after receiving those results are common causes of malpractice litigation. Several risk-management strategies are helpful against them.

First, record any abnormal results and any subsequent referral in the patient’s chart. Mr. P’s notes presented a strong defense in this case. Some practices take an extra step by having office staff arrange referrals directly and record the doctor’s name and appointment time.

Second, follow up. Mr. P did not discuss the PSA level during the patient’s subsequent visits, even though those visits were unrelated. The plaintiff’s lawyer was thus able to argue that Mr. P failed in his continuing duty to advise and refer.

It might have been helpful had Mr. P been in the habit of reviewing the chart for prior visits and abnormal labs immediately before entering the exam room to see a patient. Some electronic medical record programs facilitate this review by flagging abnormal results until the flag is turned off because of referral or treatment.