By Daniel L. Freidlin, Esq.
Prostate cancer is a commonly diagnosed cancer among American men and remains a leading cause of cancer-related death. Historically, the diagnosis of prostate cancer occurred at a late stage and typically only upon presenting with symptoms such as bone pain. In the late 1980s, the prostate specific antigen (PSA) test emerged as a blood test to screen for prostate cancer. However, the benefit of the PSA test remains controversial.
The debate surrounding the PSA test centers on whether the benefit of screening all men with the test outweighs the risk of unnecessary treatment. The theory by those who oppose universal PSA screening is that it leads to overtreatment by detecting small cancers that may never become deadly and in turn results in possibly unnecessary cancer treatment. The purpose of this article is not to weigh in on this controversy but rather to highlight that the controversy exists and to explain how it may affect the defense of a lawsuit involving the failure to diagnose cancer.
The American Cancer Society recommends that physicians give men the opportunity to make an informed decision as to whether to undergo prostate cancer screening using the PSA. In other words, a physician should inform their patient of the risks and benefits of undergoing the test. The physician should document the fact that this conversation took place. If a patient elects screening for prostate cancer using the PSA, it is important for the physician to review the results and consider their meaning in the context of the patient’s age, demographics and risk factors. Even if the ordering physician is not a proponent of PSA testing, it does not help to order the test if the results are not going to be evaluated and considered.
The need to consider the test result in light of the patient’s age and risk factors is even more important when the results are abnormal. Depending on the PSA level, a physician may choose further investigation with diagnostic tests such as imaging, biopsy or short interval repeat PSA testing. The physician may decide that although elevated, the elevation is not significant enough given the patient’s specific demographics and risk factors to warrant intervention.
Documenting Medical Judgment
There is no question that an element of medical judgment is involved as the physician interprets significantly elevated PSA levels and determines what, if anything, to do about them. Whatever the decision, it is important to incorporate the patient in the discussion of the results. It is equally important to document the interpretation of the result and the treatment plan.
A patient receiving a diagnosis of prostate cancer may consider whether the diagnosis was timely. His next step may be to find a lawyer. The patient, now plaintiff, will argue that the defendant physician did not appropriately consider the significance of an elevated PSA. Given the controversy surrounding testing and the significance of elevations in the PSA, reasonable decisions can often be defended as an exercise of medical judgment. However, it is critical that the physician document the judgment and its basis in the medical record. Without documentation of the thought process at the time, i.e. why the elevation in PSA level did not warrant immediate intervention or investigation, a good plaintiff’s lawyer will pick apart the defense. More importantly, it becomes difficult to persuade a jury that this was, in fact, an exercise of medical judgment rather than a convenient after-the-fact excuse. A well-documented chart detailing the thought process at the time can sometimes dissuade a plaintiff’s lawyer from bringing the lawsuit in the first place.
Partner Daniel L. Freidlin is an attorney at Martin Clearwater & Bell LLP where he focuses his practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.
Source: MD News April 2022, Long Island Edition