Dr. V, 68, was a general practitioner who had been running his own medical practice for the past 30 years. Many of his patients had been coming to him for years. One such patient was Mr. G, 55. Dr. V had been seeing this patient for several years for routine matters and to manage his diabetes, hypertension, and morbid obesity.
One day, Mr. G came in complaining of abnormal urination and back pain. The physician ordered a PSA test, which revealed a PSA level of 10.96 ng/mL. Dr. V referred the patient to a urologist, Dr. K.
The urologist met with the patient and explained what the elevated PSA level could indicate. The patient elected to have a repeat PSA test rather than an immediate biopsy. The second PSA showed a level of 12. The next month, January 2001, a biopsy was performed, with benign results. Dr. K told the patient that he intended to personally perform repeat PSA tests and instructed the patient to return for such testing. However, the patient was non-compliant and never returned.
In April of the same year, the urologist sent Dr. V a letter stating “This is a follow-up on Mr. G. He had a prostate ultrasound and biopsy on 1-12-01 and this was negative. Enclosed is a copy of the report.”
Dr. V put the letter in the patient's folder, and promptly forgot about it. Over the next several years, Mr. G returned to see Dr. V routinely for treatment of his diabetes, hypertension, and high cholesterol, as well as for a skin infection and swelling of the patient's hand. Blood work was often done, but the patient's PSA was not tested.
In April 2004, Mr. G came to see Dr. V with complaints of left flank pain and blood in his urine. The physician admitted Mr. G into the hospital, where a PSA test was performed, indicating a reading of 2,400. Mr. G was diagnosed with advanced prostate cancer that had metastasized to his bones and kidneys.
Mr. G died a little over a year later. Prior to his death, he filed a medical malpractice case against Dr. V. After his death, the suit was dismissed, but a new lawsuit was brought a year later by Mr. G's adult children.
Dr. V met with the defense attorney provided by his insurance company. The attorney explained to the physician that he was being sued for wrongful death based on medical malpractice.
“Specifically,” the attorney said, “the complaint says that you owed Mr. G the duty to properly advise and treat him at the early stage of his prostate cancer. What the case will hinge on is at what point he could still have possibly been treated successfully."
The case dragged on. Over a year was spent with discovery and depositions. One deposition was from the medical expert of the plaintiff, who testified that Mr. G would more likely than not have died had his prostate cancer been diagnosed after December 2001. After that deposition, the defense attorney called Dr. V in to update him.
“I think we've caught a break,” the attorney said. “The plaintiff's expert physician testified that the cancer would have to have been diagnosed prior to December 2001 in order for Mr. G to have had a chance at survival. Our state has a three-year statute of limitations on malpractice cases. The statute begins to run when the injury or act of negligence allegedly took place, not when it was discovered. In this case, the time will start running from when Mr. G no longer had a chance of survival – December 2001, as their expert testified. The plaintiffs didn't file this case until 2006. I believe they missed the window of opportunity to sue – hopefully, the judge will agree, too. I'll file a motion to dismiss.”
The judge did agree, and dismissed the case, much to the relief of Dr. V and the disappointment of the plaintiffs.