Must clinicians who believe PSA tests are unnecessary and unreliable let liability fears override their clinical judgment?
BY ANN W. LATNER, JD
For more than 30 years, most of the patients in Dr. R's thriving primary care practice had been of retirement age. Now that he was 62, they were his contemporaries. Dr. R treated patients the way that he wanted to be treated— with respect and without unnecessary tests.
PSA tests fell into that category. While his regular check-ups for male patients included digital rectal examinations, he did not order PSA tests routinely. He had seen too many false positives resulting in uncomfortable and stressful prostate biopsies that usually turned out to be negative. In addition, Dr. R believed that if prostate cancer did develop in his geriatric patients it would most likely be slow-growing and not fatal.
Many clinicians share these views. Dr. R never expected that they would result in a lawsuit, but that's exactly what happened.
The plaintiff, Mr. U, was a former patient, an African American who had seen Dr. R for routine physicals and diabetes care for about seven years. Their doctor-patient relationship had been good. When at age 63 Mr. U moved away, Dr. R was sorry to see him go.
A year after his last office visit with Dr. R, Mr. U went to a Veterans Affairs clinic. There, he was given a PSA test for the first time, and the results indicated a PSA level of 74. A week later a second test showed a PSA level of 85. The subsequent biopsy was positive for prostate cancer.
The clinic doctors told Mr. U that a prostatectomy was not an option because the cancer was too advanced. He was offered either radiation or hormone therapy. Mr. U chose the hormones. While this treatment initially worked, his PSA levels began to rise again after a year, indicating that the cancer had become hormone refractory. The clinic doctors informed Mr. U that his prognosis was poor, predicting two years of survival at most.
Distraught at this devastating news and angry that the cancer had been diagnosed too late for effective treatment, Mr. U and his wife consulted a plaintiff's attorney. She hired a physician who concluded that Dr. R had been negligent. Armed with that opinion, the lawyer launched a malpractice lawsuit.
Options never discussed
At trial, Mr. U's lawyer questioned him about his visits to Dr. R.
“Did he ever discuss prostate cancer or the PSA test with you?”
“No,” replied Mr. U. “Never.”
“Are you certain?” asked the attorney.
“Yes,” said Mr. U, confidently. “I would have remembered that. I had heard about PSA tests in the newspapers and on TV, but Dr. R never offered me one or talked to me about it.”
The lawyer then introduced an expert physician who said that the standard of care requires a physician to discuss prostate cancer screening with men who are over age 50 and with men who are otherwise at high risk for the disease. African-American men, such as Mr. U, have the highest rate of prostate cancer, the expert declared. Dr. R's failure to discuss the disease or to order a PSA test resulted in a delayed diagnosis that left Mr. U with few treatment options.
When it was his turn to testify, Dr. R conceded that he never ordered a PSA test. Asked if he discussed prostate cancer screenings, he said he did with new patients but not during routine checkups.
On cross-examination, he admitted that failure to discuss a PSA test with Mr. U would constitute substandard care. But, when questioned by the defense lawyer, he emphasized his strong feelings about the test's lack of validity.
“I don't recommend it,” Dr. R stated. “If a patient specifically asks for it, I will order it. If a patient has symptoms of prostate cancer, I refer him to a urologist immediately rather than do
a PSA.
“The PSA test can't distinguish between prostate cancers that will grow so slowly that they don't endanger life and those that are aggressive enough to kill,” he explained. “In most cases, older men with prostate cancer will die from other causes than the cancer.
“I don't believe that early diagnosis of prostate cancer increases the likelihood of survival, but I do think it increases the likelihood of patients suffering from the knowledge that they have pros-
tate cancer for a longer time,” he concluded.
During his summation, the defense attorney argued that the PSA test was controversial, that Dr. R was within his rights to question it as a diagnostic tool, and that his failure to order the test therefore was not a matter of negligence. The jury did not agree, however. Within a few hours they returned a verdict in favor of Mr. U and awarded him $2 million in damages.
Legal theory
Negligence in a medical malpractice case is frequently based on misdiagnosis, failure to diagnose, or, as in this case, a delay in diagnosis. Despite controversy over the PSA as a screening tool, the jury was surely moved by the possibility that the patient might have been able to get lifesaving treatment had his physician just ordered a simple test.
Protecting yourself
Dr. R was within his rights to have opinions about the validity and accuracy of the PSA test. His mistake was not discussing them.
Had Dr. R talked to Mr. U about the pros and cons of the test and allowed Mr. U to decide the issue, chances are he would have avoided the lawsuit. When patients are given the opportunity to make decisions about their own health care—especially when controversy is involved—the clinician's potential liability is diminished.
Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.