When a urologist refuses to testify about a family physician's negligence, he finds himself dragged into a malpractice suit
Dr. M, 56, was an old hand at the twists and turns of prostatic cancer. He'd been taught well by a urology professor who drawled, “It's just like huntin' swamp foxes. You never know what direction they're gonna turn next.” Still, the professor's wisdom failed to shield Dr. M from a malpractice suit.
The 72-year-old patient had been diagnosed and referred to Dr. M more than 10 years before. Dr. M performed a radical prostatectomy, followed by PSA testing every six months. All of these tests were negative, and the man's family physician, Dr. P, was kept informed throughout the process.
On what should have been the patient's last follow-up visit five years after his surgery, his PSA level was 6.0 ng/mL, indicating a possible recurrence. However, the man was asymptomatic, and a bone scan, physical examination, and spot x-rays did not reveal any spread.
Dr. M continued to follow this patient for two more years. The man showed slightly elevated PSAs, but the tumor was apparently quiescent. Dr. M recommended active surveillance of the cancer and finally discharged the man to Dr. P for continued monitoring.
Dr. P administered regular physical exams, but he did not repeat the PSA testing and did not apprise Dr. M of that fact. The patient didn't question the lack of PSA results: He assumed that the test was run from his routine blood samples and that everything was normal.
Secondary carcinoma
After four years under Dr. P's care, the patient complained of sacroiliac pain. A bone scan showed secondary carcinoma widely spread through the skeletal system. The man was treated with hormone therapy and spot radiation to painful areas. He died two years later.
His family soon consulted a plaintiff's lawyer, who had an expert urologist review Dr. M's and Dr. P's charts. The expert concluded that Dr. P's failure to order PSA testing in a patient with known carcinoma was below the standard of care. He recommended suing Dr. P—and Dr. M “if he will not cooperate.”
The plaintiff's lawyer then called Dr. M to sound him out about testifying against Dr. P. “I would
testify as to what I know,” Dr. M replied, “but I don't know the standard of care for family physicians. I'm a urologist.” The lawyer then added Dr. M as a defendant.
For the next year, the physicians complied with countless requests for medical records, educational records, licensure documents, and proof of CME. When the case reached the deposition stage, Dr. M testified that, while under his care, the patient had received PSA testing every six months. Dr. P was unable to explain the years without testing. “It must have been an oversight,” he stated simply. The plaintiff's lawyer greeted this admission with a broad smile.
After the depositions, the defense team huddled to determine a settlement strategy, and the defense lawyer had a brilliant suggestion. “I believe on the basis of the dates revealed in the deposition,” he started in legalese, “we may be able to apply to the court for dismissal of the case on the basis of statute of limitations.”
Dr. M and the insurance adjuster stared at him. “Well, do it,” the adjuster said. “I'll authorize the $15,000 you need.”
Eventually, the lawyers for both sides faced off before a judge. At issue was whether the case had been filed after a three-year statute of limitations and should therefore be dismissed. The defense argued that because the patient knew he had recurrent cancer, any negligence in getting PSA tests should have been obvious to him during his years under the doctors' care.
The plaintiff's lawyer argued that the man reported for his regular checkups and had no reason to make sure his doctors were not doing their jobs. Therefore, the clock should not start running until he actually discovered the oversight and the statute of limitations was delayed. The judge agreed with the plaintiff and ruled that the case would go forward to trial. It was settled shortly afterwards for $85,000.
Legal background
Defense teams are becoming more vigilant in invoking statutes of limitations. The reforms of the 1990s have resulted in complex statutes defining how much time a plaintiff has to file a lawsuit after an alleged malpractice has occurred.
In this case, state law required the action to be filed “within three years of the date of the incident; or two years of the date of the injury; or when it reasonably should have been discovered, whichever occurs later; but not more than seven years from the date of the incident total.” Hence, the question now becomes, “When does the time frame begin?”
The judge ruled that, although the suit was filed more than three years after the patient stopped having PSA tests, it was brought within two years of his “discovering” the situation. Therefore, he did not dismiss the case.
Protecting yourself
This lawsuit illustrates several risk management principles. First, when a specialist releases a patient back to a family physician, a discharge letter with detailed instructions will encourage an adequate medical follow-up.
The urologist might have sent such a letter to Dr. P, describing his recommendations for tests and examinations, such as PSA tests every six months. On the other side, when he did not receive such a letter, Dr. P might have called Dr. M and noted his recommendation in the patient's chart.
Cancer patients generate a disproportionate number of malpractice cases and elicit a high
level of jury sympathy. Being aware of this can help in medical practice and risk management. Gray areas of treatment should be noted in the chart.
The physician should also cultivate a good relationship with the family, as well as with the patient himself, and send a condolence card if the patient should die under his care. This simple human touch can deflect a family's displaced anger and the blame generated when a family projects guilt and grieving onto the physician.