Most of Dr. W’s cases were referrals from other physicians, often from physicians with whom he was friends. The 58-year old urologist liked this system. He felt that the referring physicians acted as a screening process—doing the basic tests and making early judgments as to conditions —and then when he finally saw the patient he could concentrate on the specific problem.

Dr. W enjoyed the problem-solving part of the job. He got great satisfaction from, when possible, curing the patient’s ailment and sending them back to the referring physician better than before.

He believed that would be the case with Mr. F, a 50-year old patient referred by Dr. C, the patient’s primary care physician and Dr. W’s golfing partner.

Possible prostatitis

Dr. C’s notes indicated that the patient had pain and difficulty urinating, and that she suspected prostatitis. The patient’s vitals were normal and Dr. C had noted that Mr. F had a normal reading on a PSA test 10 months earlier. After questioning the patient about his symptoms and performing an examination, Dr. W came to the same conclusion as Dr. C—Mr. F was suffering from prostatitis. Dr. W treated him with antibiotics, had the patient return for a follow-up visit several weeks later (at which time the patient’s symptoms had subsided), and then sent him back to Dr. C.

Elevated PSA levels

Dr. C noted in the patient’s chart to schedule another PSA test after the prostatitis was treated, which would have been somewhat over a year from the date of the last test. However, because of scheduling issues, Dr. C did not see Mr. F for another couple of months. At that time, the patient’s PSA levels were elevated. The following month, the patient went for a needle biopsy of the prostate which determined that he had prostate cancer and a Gleason score of 8. The patient subsequently had radiation, surgery, and chemotherapy treatment, all of which failed, and he died a year after diagnosis, leaving behind a wife and two college-aged children.

The patient’s widow was devastated by the fast decline and loss of her husband, and was furious at his physicians for “not finding the cancer sooner, when he might have been saved.” She hired a plaintiff’s attorney who filed a malpractice lawsuit against both Dr. C and Dr. W alleging that the physicians were negligent in not ordering a PSA test sooner.

The two physicians were distraught at the death of their patient, but surprised by the lawsuit. They met with the attorneys provided by their insurance companies and discussed the situation. After hearing all the facts, the attorneys advised that they not immediately settle the case. “In order for a jury to find you guilty,” said one attorney, “the plaintiff would have to show that you did not comply with the required standard of care. I think we can establish that you did in fact provide acceptable care to the patient.”

After a few futile settlement negotiation sessions, the case went to trial. At the trial, Mrs. F’s attorney called an expert radiation oncologist who testified that the defendants should have ordered a PSA test as soon as the patient showed symptoms, and if they had, it would have enabled earlier diagnosis, treatment, and cure because the cancer would still be localized enough for a surgical removal. Mrs. F testified tearfully about the loss of her husband and the burden she now had providing for college for her children.

The defendant physicians called an expert urologist who testified that both physicians had complied with the applicable standard of care. The expert testified that the urologist was under no obligation to order a PSA test because he was treating an acute, particular problem – prostatitis.

The defense also called a urologic oncologist who was an expert in prostate cancer and who testified at great length about the controversy surrounding PSA testing, explaining that studies had demonstrated no benefit from PSA testing with regard to long-term survival. The expert also opined that the decedent’s particular type of cancer was very aggressive and that there is not much that can be done to treat a patient with a Gleason 8 score.

After deliberating for just over an hour, the jury returned and found the physicians not liable.