Legal theory

To find a medical practitioner guilty of medical malpractice, four elements must be proven. If all four elements are not proven, the defendant cannot be found guilty (even if three out of four exist). The elements are: a legal duty between the parties, a breach of that duty (the practitioner failed to conform to the standards of care), the breach was the cause of an injury, and, damages resulted. In this case, although there was a legal duty, the plaintiff could not prove that the physicians had breached that duty by failing to perform a PSA test. Frankly, even if the plaintiff had been able to prove a breach of the duty, she would have been hard pressed to show that the breach was the cause of Mr. F’s death.

Protecting yourself

It’s hard to protect yourself against a case like this, but for the most part these practitioners handled themselves properly. Dr. W was referred a patient who was up to date on his PSA test and was suffering from a specific condition—prostatitis. The urologist verified the suspected diagnosis and treated the patient for that problem, and then in the absence of any other issue, referred the patient back to his primary care physician.  Dr. C had regularly been testing Mr. F’s PSA, and had in fact made a note to recheck it after his prostatitis cleared up. Unfortunately, in this case, even had the PSA test been done a month or two earlier, it would have made little or no difference in the patient’s outcome. While an early diagnosis is always the goal, sometimes even that will not be enough.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.

Disclaimer: Cases presented are based on actual occurrences. Names of participants and details have been changed. Cases are informational only; no specific legal advice is intended.