Getting sued is bad enough, but when the questions are personal and nasty, defense lawyers rarely seem to intervene.
At age 38, Dr. K was new to private practice. He had completed his residency three years earlier and formed a partnership with an established general urologist in the Northeast. They investigated PSA levels by repeated testing, ultrasound, and, when necessary, biopsy. (Ratios of free/ bound PSA were not available at the time.) A patient with a mildly elevated PSA involved Dr. K in a malpractice suit.
The man was a 57-year-old supervisor with the U.S. Postal Service who had been referred to Dr. K when his family physician (FP) found a PSA of 4.4 ng/mL on routine testing. Dr. K took a urological history, which was not revealing, and performed a physical examination, which included a rectal examination of the prostate. He found no abnormality—no lumps or bumps on the prostatic lobes—but he thought an ultrasound was justified nonetheless, even if only for liability reasons. This test, too, was normal.
Puzzled, Dr. K then examined the urine specimen the patient had left and was relieved to find some explanation for the elevated PSA. The sample included moderate leukocytes, implying prostatic inflammation. Dr. K explained all this to the patient and prescribed trimethoprim 100 mg b.i.d. for 10 days. He asked the man to return in two months for a follow-up PSA test, and wrote “rpt PSA 2 mos” in the chart.
But the man did not return. Instead, he went to his FP for his annual checkup about a year later. This time, his PSA level was normal at 3.9 ng/mL. But two years after that, the man experIenced difficulty voiding. He went to the emergency department, where the emergency physician called Dr. K. On examination, Dr. K found an irregular enlarged prostate suggesting prostatic carcinoma. He also suspected a significant residual volume, and inserted a catheter, resulting in a residual of 85 mL.
Afraid that the patient would obstruct completely, Dr. K admitted him to the hospital for
further testing. The biopsy showed a Gleason score of 9, confirming Dr. K’s clinical impression. Additional studies indicated advanced, stage III adenocarcinoma of the prostate. The patient started radiation and chemotherapy, but did poorly.
When he got the first bills for his cancer treatment, the man consulted a lawyer at his family’s behest. The lawyer called for the chart and had it reviewed by an expert urologist. Upon receiving a favorable report, he filed suit against Dr. K, alleging that through “negligent, substandard care,” Dr. K had caused “severe injury to the patient, including loss of a chance for a cure.”
Dr. K read these accusations in disbelief. Even his most severe critic during his residency had not been that strident and severe. Dr. K was about to get an education in legal rhetoric.
The case proceeded through paper discovery to depositions, where Dr. K endured eight hours of grilling from the patient’s attorney. The session ended with the plaintiff lawyer yelling at Dr. K: “My client is dying because of you—and you have the nerve to sit there and tell me it isn’t your fault?” The defense lawyer intervened mildly: “Jim, please,” he implored his adversary. Expert urologists for each side testified next, giving exactly the opposite interpretations of the same facts.
Armed with these depositions, the lawyers headed to trial. There, the patient presented his story to the jury. He assured them that he was not aware an elevated PSA could mean prostate cancer, and that he would have demanded a prostatic biopsy had Dr. K informed him of the possibility. He also denied being told to return in two months for a follow-up.
Dr. K worked his way through the chart entries, which noted the PSA test result and the “rpt PSA 2 mos” recommendation. His testimony and the notation undercut the patient’s credibility, and the jury found in his favor.