The plaintiff’s score was 6, but his urologist didn’t consider that high enough to operate. Another urologist did.
Dr. R, a 59-year-old urologist, felt he was nearing a well-deserved retirement, but then a malpractice case derailed his final plans. The patient was a 62-year-old man referred for prostatic assessment and possible biopsy because of a marginally elevated PSA and the suspicion of a mass.
Dr. R assessed the patient, who appeared to have good general health and no obvious prostate mass on rectal exam. Ultrasound was also unhelpful, suggesting an equivocal enlargement in the right lobe. Dr. R discussed the findings with the patient, and recommended needle biopsy. The patient, whose father had died of lung cancer, agreed to the procedure, and several days later he underwent multiple needle biopsies, principally to the right lobe. The pathology report came back negative. The patient was reassured and returned to the care of his family physician.
A year later, Dr. R heard that the patient had been diagnosed with carcinoma of the prostate, with no metastasis. He had undergone a retropubic prostatectomy by another surgeon, who was continuing his care, and was apparently doing well. Dr. R, only a year away from retirement, braced himself for a lawsuit, and it was not long in coming. The patient accused Dr. R of "failing to diagnose and treat" his prostate cancer, causing him "severe delays in diagnosis and consequent damages." Dr. R sent the legal papers served on him by the plaintiff lawyer to the insurance company, and was soon in the office of his appointed lawyer. "Who do you think might testify for you?" the lawyer asked. Dr. R was taken aback, but soon came up with the name of a doctor he had trained with and who was now a professor of urology at the state medical school. Luckily for Dr. R, his friend agreed to review the case. His testimony was to prove important. Disputed Gleason score The case progressed to depositions. The patient went first, explaining that he had asked his family practitioner to repeat the PSA test nine months after the negative biopsies, and when this PSA had still been elevated, he requested a referral to another urologist.
This urologist re-did the biopsies on both sides of the prostate, and one came back malignant. The de-fense lawyer then sought to take the deposition of the second treating urologist, but because he practiced just across the state line, he was not subject to subpoena and was unwilling to "get involved." However, his records showed that his prostatic biopsy, guided by ultrasound in the usual way, had produced a Gleason score of 4 in the most malignant specimen. On the basis of this, the urologist had recommended surgery. Dr. R snorted, "The patient’s suing the wrong doctor." The subsequent surgical pathology showed varied grades of prostati carcinoma, with the worst slide a Gleason score 6. During his own deposition, Dr. R presented his disagreement with the treating urologist in a professional manner, stating that he himself did not base treatment on such a low Gleason score because of errors in interpreta-tion and "over-reading" of the slides.
He was backed up by the defense expert, Dr. R’s old friend. Predictably, the plaintiff expert said that the pathology findings indicated that the carcinoma had probably been there on the first biopsy specimens taken by Dr. R, and that his neglect to treat actively had caused the patient "loss of chance" of a cure. After the depositions, the defense team, thinking the plaintiff had a weak case, offered to settle for $100,000. The defense demanded $2 million. After sev-eral months of disagreement, the case was settled at mediation for $175,000. Dr. R retired several months later, two years behind schedule.
Legal background Doctors who are not defendants in a malpractice suit sometimes cannot be forced to testify if they live and work in another state, or in some states, even 150 miles away within the same state. In this case, the subsequent treating urologist, a key witness for both sides in building their cases, could not be forced to testify because he lived across state lines, and this situation presented the plaintiff lawyer with a difficult strategic decision.
He could add this physician to the lawsuit, thus gaining subpoena power over him but gambling that he would blame Dr. R for any alleged malpractice, or he could ignore his absence but leave a jury puzzled as to why such a key witness was missing. In the end, he chose to forego the doctor’s testimony because he had decided to go for a settlement and bypass a jury. In a malpractice case, the subsequent treating physician is a key player in both sides’ legal strat- egy, and each side maneuvers to gain his support through flattery, bribery or intimidation.
Flattery, by suggesting that he was able to treat the patient whereas the defendant doctor failed; bribery, by paying thousands of dollars in "expert witness fees" for his favorable testimony; and intimidation, by suggesting that he can avoid being joined in the lawsuit by testifying favorably for the plaintiff. In this case, the subsequent treating physician was shielded from these influences by his location. Takeaway lesson When there is disagreement within your specialty over how to manage a condition, inform the patient of the lack of consensus. This can be done orally, but preprinted patient education ma-terial saves time and provides written proof that you provided the information, avoiding the disadvantages of "he-said, she-said" testimony in the courtroom.