Sometimes a lawsuit can fail because of a technicality. Unfortunately, this does not spare the defendants in the case from having to cope with the stress of being sued or having to deal with due process.


Dr. V was a general practitioner who had been running a solo practice for the past 30 years. Within the past 10 years, his practice expanded so much that Dr. V came to rely heavily on the services of his physician assistant, Ms. S, who had been working with Dr. V for her entire medical career. 


Mr. G had been seeing Dr. V and Ms. S for many years. Mr. G basically needed the routine care that accompanies the transition to middle age, but he was often in the office to manage his diabetes, hypertension and several other medical issues that arose as a result of his morbid obesity. 



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One day, Mr. G came in complaining that he was having trouble urinating. His legs were visibly swollen, and he noted slight discomfort in the pelvic area. In addition, Mr. G complained of back pain. Ms. S spoke to Dr. V about having the patient’s prostate-specific antigen (PSA) measured. The physician ordered a PSA test, which revealed a PSA level of 10.96 ng/mL. Because PSA was significantly elevated, Dr. V referred Mr. G to a urologist, Dr. K. 


The urologist met with the patient and explained what the elevated PSA level could indicate. Mr. G elected to have a repeat PSA test rather than an immediate biopsy. The second PSA showed a level of 12 ng/mL. In the next month, a biopsy was performed with benign results. Dr. K told Mr. G that he intended to perform repeat PSA tests and instructed the patient to schedule an appointment. However, Mr. G never returned for follow-up. 


Three months later, the urologist sent Dr. V a letter explaining, “This is a follow-up on 
Mr. G. He had a prostate ultrasound and biopsy in January of 2001, which was negative. Enclosed is a copy of the report. I have had trouble contacting Mr. G. He is frequently out of town.”


Dr. V put the letter in the patient’s folder, and promptly forgot about it. Over the next several years, Mr. G returned to see Dr. V for treatment of his diabetes, hypertension and high cholesterol, as well as for a skin infection and swelling of his hand. Blood work was often done, but Mr. G’s PSA was never retested. 


In April 2004, Mr. G came to see Dr. V with complaints of left flank pain and hematuria. The physician admitted Mr. G into the hospital, where a PSA test was performed. At this point, the PSA results again indicated a dangerously high level. After being admitted to the hospital, 
Mr. G was diagnosed with advanced prostate cancer that had metastasized to his bones and kidneys. 


Mr. G died a little more than one year later. Prior to his death, he filed a medical malpractice case against Dr. V and Ms. S. After his death, the suit was dismissed, but a new lawsuit was brought a year later by Mr. G’s adult children. 


Dr. V and Ms. S each met with the defense attorney provided by their insurance company. The attorney explained to the physician and the PA that they were being sued for wrongful death based on medical malpractice. 


“Specifically,” said the attorney, “the complaint says that you should have properly advised Mr. G and treated him when his prostate cancer was at an earlier stage. This case will hinge on the determination of when the patient could have possibly been treated successfully. That is the pivotal point in this argument.”


The case dragged on for more than a year through discovery and depositions. A deposition from the medical expert for the plaintiff indicated that Mr. G would more than likely not have died had his prostate cancer been diagnosed prior to December 2001. 


After that deposition, the defense attorney called Dr. V and Ms. S in to update them. 


“We may have caught a lucky break,” said the attorney. “The plaintiff’s expert clinician testified that the cancer would have to have been diagnosed before December 2001 for Mr. G to have had a chance at survival. The state has a three-year statute of limitations on medical malpractice cases. The statute begins to run when the injury or act of negligence allegedly took place—not when it was discovered. In this case, the time will start running from when Mr. G no longer had a chance of survival—December 2001)—as their expert testified. The plaintiffs did not file this case until 2006. I believe they missed the window of opportunity to sue; hopefully, the judge will agree. I will file a motion to dismiss.”


The judge later dismissed the case, much to the relief of Dr. V and Ms. S, and to the disappointment of the plaintiffs.



Legal background


Lawsuits are dismissed on the basis of a technicality all the time. There are many different reasons why a case may fail based on a technicality. Such reasons include (1) filing after the statute of limitations has run out; (2) improper filing of the case; and (3) not having an expert certify a medical malpractice case in states that require it. While it sometimes seems unfair, particularly to the plaintiffs, the rules are in place for a reason, mainly to limit the number of unnecessary lawsuits. 



Protecting yourself


While Dr. V and Ms. S were not found liable in this case, they still had to go through the unpleasant experience of being the subjects of a lawsuit. 


In all likelihood, Dr. V could have prevented this malpractice case by taking one of several actions. He could have (and should have) regularly tested Mr. G’s PSA, especially given that the level was high on first testing. Dr. V also should have contacted the urologist to learn whether Dr. K was testing the patient’s PSA. 


Dr. V also could have discussed with the patient (and, very important, noted in the patient’s medical file) whether the PSA level was being monitored by the urologist, and the importance of the continued testing. But after referring the patient to the urologist in 2001, Dr. V never discussed this issue with the patient, nor did he retest the patient’s PSA. Furthermore, Dr. V did not write anything relating to Mr. G’s prostate issue in the patient’s chart until three years later when 
Mr. G showed up with an obvious problem. 


Simply referring a patient for specialist care does not absolve a clinician from following up with the patient, the specialist or both. While, unfortunately, it is unlikely that the end result would have different for Mr. G, it does not alter the fact that Dr. V—and by extension, Ms. S—should have taken action to ensure that an appropriate standard of care was being maintained.