$850,000 – Medical Malpractice/Negligence
Facts
A doctor’s eight-year delay in following up on elevated PSAs and a nodule found on digital rectal exam results in metastatic spread of prostate cancer.
Plaintiff, an active, 65-year-old, had always been in excellent health. He and his wife have been married for 35 years.
During a routine physical, on digital rectal exam Dr. Roe noted a small left posterior nodule on Plaintiff’s prostate. He confirmed in his testimony that such a finding made plaintiff’s prostate exam “abnormal.” A PSA done from blood drawn on that date was found to be 3.1 (normal range is 0 to 4). At that time, no additional recommendations were made by Dr. Roe to Plaintiff concerning his prostate.
Plaintiff’s next complete physical examination by Dr. Roe was three years later. The prostate exam was listed as normal at that time. A PSA test was not done. A couple of months later,
Plaintiff sent a fax to Dr. Roe indicating that as part of an insurance examination, the lab work showed a PSA of 5.3. Plaintiff asked the doctor to call him. Dr. Roe indicated that the PSA had not been re-checked in January and instructed Plaintiff to come in for a test. Blood was re-drawn and the PSA came back with a reading of 3.5. Dr. Roe told Plaintiff that his PSA was within a normal range and nothing further needed to be done and not to worry.
The next complete physical examination done by Dr. Roe on plaintiff was 2-1/2 years later. At that time, records noted that plaintiff’s father died of liver cancer, and that he had prostate cancer. The digital rectal exam done at that time again showed a small left posterior nodule on the prostate – an abnormal finding. The blood collected on that same date, March 8th, returned a PSA of 4.7, clearly abnormally high. Dr. Roe signed off on the results of the lab work, including the PSA, confirming that he was aware of it. Plaintiff also underwent a sigmoidoscopic examination on April 10th, which revealed that the prostate was enlarged.
A month went by. Plaintiff called and left a message for Dr. Roe asking that the doctor call him with the test results. Again, Dr. Roe’s handwritten notes indicate he received the message, and called plaintiff to tell him that his labs were “within normal limits.” No additional follow-up was suggested concerning the abnormal prostate exam or the abnormal PSA.
Plaintiff returned for his next complete physical exam two years later. At that time, his prostate exam showed it to be 1+ enlarged, as well as firm on the left without discrete nodule. In his note, Dr. Roe indicated that if Plaintiff’s PSA was in the 3 to 4 range, that plaintiff would be referred to a urologist. Plaintiff’s PSA came back at 14.1.
On self-referral, plaintiff was seen by a urologist. A transrectal ultrasound and biopsy were performed, which showed prostate cancer in both the right and left lobes of the prostate, although the left was the primary lobe involved. Bone scans subsequently showed that plaintiff had metastatic spread in the right pubis, the right femur and the right tibia. Plaintiff was started on hormone therapy. Since the cancer had already spread beyond the prostate, surgery has not been and will not be an option.
Allegations/Contentions
This is a clear case of liability. Defendant’s own records contained an algorithm for prostate cancer screening, which indicates an abnormal digital rectal exam is grounds for referral to a urologist for a biopsy. Further, an abnormal PSA (more than 4.0) is a separate ground for referral to a urologist.
Plaintiff alleged that the first abnormal prostate examination, i.e., the exam showing the nodule on the left lobe of the prostate eight years prior required at least a discussion by Dr. Roe with Plaintiff about the need for referral to a urologist to determine if a biopsy needed to be done.
Plaintiff alleged there was a second violation of the standard of care when plaintiff had a PSA of 5.3 as part of the insurance examination. Even though the subsequent PSA came in at 3.5, these PSA levels can fluctuate, and this should have been a second opportunity for referral to a urologist.
Lastly, plaintiff alleged there was no doubt that on March 8th, with an abnormal prostate examination (a nodule on the left lobe of the prostate) and a PSA of 4.7, plaintiff should have been referred to a urologist for a biopsy at that time.
Plaintiffs experts opined that had this diagnosis been made, as late as March, plaintiff’s cancer would have been confined to the prostate and he would have had an 80-90% probability of five-year survival and cure.
Defendants alleged that they complied with the applicable standards of care, and that there was no causation.
Injuries/Damages
Plaintiff’s prostate cancer was not diagnosed until there was already distant metastatic spread. At this point, there is no treatment to provide cure for plaintiff’s prostate cancer. The treatment can only be palliative. A treating physician testified that statistically, plaintiff will probably not survive more than three years from the time of his diagnosis.
Plaintiff claimed general damages in the amount of $250,000, and economic damages in the amount of $667,628, which did not include out-of-pocket future medical care needs.
Although not a named plaintiff to the lawsuit, plaintiff’s wife’s future claim for the wrongful death of her husband was also a consideration in this case. She claimed the maximum general damages amount allowed under California law of $250,000 for her potential wrongful death action.
Special Notes
Plaintiff and his wife agreed to accept $850,000 in full settlement of both plaintiff’s claims against the defendants, and his wife’s claim for her potential wrongful death action. The settlement occurred before expert witnesses were deposed.
