Urologist claims patient negligence in defense of malpractice lawsuit

Acacia Brush Perko, Esq.
Acacia Brush Perko, Esq.

Perko is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters.

Urology Times Journal, Vol 49 No 02, Volume 49, Issue 02

The provider said the patient failed to timely return for follow-up.

A 71-year-old man was seen by his primary care provider for a prostate-specific antigen (PSA) screen on December 5, 2011. The result was a level of 5.33. The patient’s primary care physician referred him to a urologist.

On April 5, 2012, the patient presented to the urologist for the elevated PSA. The urologist performed a history and physical exam. The urologist believed that the patient’s modestly elevated PSA was secondary to an enlarged prostate, otherwise described as benign prostatic hyperplasia (BPH). The patient was given some medication and told to return in 90 days for a repeat PSA study.

The patient did not return to the urologist until December 5, 2013. By that time, the patient’s primary care provider had repeated PSA studies in August 2013 and again in October 2013, which returned at levels of 6.67 and 5.8, respectively. At the second visit, the urologist discussed a microwave procedure to shrink the prostate. The urologist relied on the patient’s description that the values were initially high and then fell back slightly, but no repeat PSA study was performed. The urologist placed the patient back on finasteride and told him to return in 90 days.

Microwave procedure performed

The patient returned to the urologist a third time on April 16, 2014, and reported that his underlying urological problems had worsened. The urologist did not get a repeat PSA but concluded that the patient’s symptoms were caused by BPH. The urologist’s office subsequently carried out a microwave procedure on May 21, 2014 and told the patient to return for a follow-up. The patient never saw that urologist again.

In September 2014, the primary care provider obtained a PSA that reported out at level 8.8. The primary care provider advised the patient to see a urologist again.

In February 2015, the patient saw a second urologist who performed a PSA test, which returned at level 37. A biopsy proved prostate cancer, with a Gleason score of 7. Further evaluation and imaging studies in March 2015 revealed widespread metastatic disease to the ribs, sacrum, and spine. He was ultimately diagnosed with stage IV terminal prostate cancer.

The patient sued his first urologist, claiming medical malpractice. He claimed that the urologist was negligent for not doing a repeat PSA test and not offering a biopsy at any time. The urologist denied negligence and further denied that anything he did or failed to do caused the patient’s metastatic cancer.

At trial, the patient-plaintiff contended that he would have been completely curable with timely diagnosis and treatment. However, the jury heard testimony that the patient’s life expectancy was approximately 18 to 24 months.

The defendant-urologist argued that by not returning 90 days after the initial visit in April of 2012, he was deprived of finding out how the patient’s PSA did while the patient was on finasteride.

Experts for the defense testified that when a PSA is elevated secondary to BPH as opposed to prostate cancer, finasteride typically cuts the PSA in half and that when the PSA does not fall, despite a patient taking finasteride, urologists strongly consider prostate cancer as an alternative explanation for the abnormal PSA. The defendant-urologist thus contended that if the patient had returned within a reasonable amount of time, it was likely that the PSA would have been unchanged because it was still in the 5 to 6 range in August 2013 and October 2013. All experts at trial agreed that as of April 2012, the patient likely had cancer for years. But because the patient did not timely return after the initial urology visit, the urologist did not have an opportunity to conduct a PSA, offer a biopsy, or otherwise evaluate the patient.

Following an 8-day trial, the jury deliberated for 1.5 days, and returned a defense verdict for the urologist, finding no negligence.

LEGAL PERSPECTIVE: Many states recognize the defense of contributory negligence in medical malpractice cases. Disregarding a doctor’s orders can be patient negligence. Failing to provide an accurate patient history may also constitute patient negligence. In this case, the defendant-urologist could argue that the plaintiff-patient was negligent for failing to timely return for a follow-up. The jury weighed and considered this evidence in deliberations, which likely affected their defense verdict.

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