Dr. B, 57, was a urologist with a busy private practice. One of his patients was Mr. O, 69, who had an abnormal PSA result.

As he did with all patients whose PSA tests were elevated, he recommended that Mr. O have a prostate biopsy and the patient agreed. A biopsy was taken at the hospital with which Dr. B was affiliated.

The next day, the pathologist sent back a report to the urologist indicating that the biopsy contained adenocarcinoma and high-grade prostatic intraepithelial neoplasia. After reviewing the report, Dr. B advised the patient that he had highly aggressive Stage II prostate cancer and needed a radical prostatectomy.

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The physician also recommended that Mr. O get a second opinion, which he did the next day. The second physician, based on the medical records, concurred with Dr. B’s diagnosis and also told the patient to undergo a radical prostatectomy.

A negative diagnosis, after all

The following month, Dr. B performed the procedure on the patient, removing his prostate. A few days later, Dr. B received both a phone call and a report from the surgical pathologist stating that no cancer had been found in the removed prostate.

The physician was faced with a quandary—should he inform the patient that the pathology report came back negative and deal with a distraught patient who had his prostate removed for no good reason, or should he simply not tell and spare Mr. O from further distress. He decided on the latter approach, and although he put the pathologist’s report in the patient’s file, he did not mention the content of the report to the patient.

Over the course of the next five years, Dr. B treated Mr. O just as he would any other patient who had PCa and a radical prostatectomy. Mr. O came in several times a year for follow-up checks and lab work, all of which were normal. As the years passed, Dr. B eventually forgot about the pathology report.

Five years after the surgery, however, Mr. O and his wife moved to another area and wanted the medical records so he could take them to his new urologist. Dr. B’s office manager made a copy and sent them to the patient, who then, for the first time, saw the pathology report indicating that he had never had cancer. The enraged patient consulted with a malpractice attorney and subsequently sued everyone involved with the situation, including Dr. B.

The physician, when served with papers notifying him about the lawsuit, sought the advice of a defense attorney.

“You are being sued for a variety of reasons,” the attorney said, “including fraud. I believe we can get several of these dismissed, but there is one cause of action that I’m concerned about, and that’s informed consent. Your patient is alleging that because he didn’t know that he didn’t have cancer, he couldn’t actually consent to the five years of follow-up treatment. Unfortunately for you, that’s a reasonable argument that could hold weight with a jury. I’ll make motions to dismiss this case, but be prepared that the informed consent claim might be hard to get rid of.”

As promised, the attorney made a motion to dismiss the case against Dr. O, and was successful in getting portions of the complaint dismissed, but not the claim based on lack of informed consent. In allowing that portion of the case to proceed, the judge wrote in his decision: “Consent to medical treatment, to be effective, should stem from an informed decision based on adequate information about treatment, the available alternatives, and the collateral risks.

This requirement is as essential as a physician’s care and skill in the performance of therapy. A physician violates a duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form an intelligent consent by the patient to the proposed treatment.” The court ruled that the case could proceed against Dr. B based on this. After this ruling, and a discussion with his attorney, Dr. B decided to settle the case out of court with the patient for an unidentified sum.