In cases involving the delayed diagnosis of prostate cancer most people focus only on whether the physician made a mistake. But this is only the first issue that an attorney must address when evaluating a potential claim. The other issue is whether there was any harm to the patient as a result of the physician's mistake, and if there was, was it the type of harm that would merit pursuing a claim.
It is usually easy to determine whether a physician had information, in the form of an elevated PSA test result or an abnormal digital examination, suggestive of possible prostate cancer. It is also usually fairly easy to determine the amount of delay. This is normally the difference between when the patient was diagnosed and when the physician first had the information about the abnormal PSA or digital examination results.
What may be more difficult to determine is the extent of the injury to the patient. Unless the PSA exceeds at least a 10.0 (anything above a 4.0 is considered high) or a bone scan reveals sign of metastasis, even if the cancer has a high Gleason score, most physicians would admit that it is impossible to determine the stage of the cancer without performing surgery. The examination of the specimen collected during the surgery determines whether the cancer had already spread beyond the prostate. Even with a PSA above a 10.0 it is still possible that the cancer is still contained and that surgery can be curative.
Consider a case where a physician performed a PSA blood test on his patient when the patient was 52 years old. The PSA level was 2.0 at that time. This level is generally considered to be well within the normal range. Two years later the physician repeated the PSA test on his patient. This time the result indicated a level of 4.2. This was marked as high in the report provided by the lab that conducted the blood analysis. The physician saw the patient four times over the next two and a half years without ever informing his patient of the abnormal test result or performing a follow-up PSA test. It was more than three years after the abnormal test result that the physician finally performed another PSA test. At this point the results indicated a PSA level of 5.25.
This was the first time the physician informed his patient of the prior elevated level. At this time, the physician referred the patient to a urologist. A biopsy revealed that he had cancer. Surgery revealed that the cancer had already spread to the seminal vesicles and there was evidence of vascular as well as perineal invasion. Given that the cancer had already began spreading beyond the prostate the surgery was not curative. The patient thus underwent hormone therapy. His PSA levels then began to rise post-operatively. This is indicates a poor prognosis making it unlikely that the patient will survive five years beyond the surgery.
The law firm that handled this matter reported that the medical malpractice claim on behalf of the patient and his wife was settled for $550,000. The patient was 60 years old at the time of the settlement. The agreement left the possibility of a wrongful death claim should the patient not survive beyond the applicable statute of limitations.
As this case illustrates, the nature of the injury to the patient was not known until the results of the surgery were reviewed and showed that the cancer had, in fact, already begun spreading outside the prostate. And it was not until the patient
s PSA levels began to rise post-operatively that the true extent of the injury was know. At that point the attorney is in a position to be able to fully evaluate the patient's claim. Notice that the law firm in this case limited the settlement only to the patient's medical malpractice claim.
Understanding the inevitable meaning of the post-surgical rise in the PSA they made certain to leave the possibility of a wrongful death claim open. Of course whether there will later be a wrongful death claim that can be pursued will depend on several factors including whether the patient dies as a result of the cancer or of some other cause and whether it happens during the time frame permitted by the applicable statutes of limitations and statute of repose.
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