By Jacqueline D. Berger, Esq.Monday, April 22, 2019
Category: Legal
Specialty: Men's Health
Prostate cancer is known as one of the most common, treatable and least life-threatening cancers. One in every nine men will have a diagnosis of prostate cancer in his lifetime, but only approximately 2 percent of those patients die from it. However, physicians may be targets of medical malpractice lawsuits when there is an alleged delay in diagnosing prostate cancer.
One issue seen in litigation is the misdiagnosis of benign prostatic hypertrophy (BPH) when the patient in fact has prostate cancer. Men over the age of 50 have a 50 percent chance of having BPH, while men over 80 have a 90 percent chance of having this condition. BPH is an enlargement of the prostate gland and may cause a variety of urinary symptoms as well as an elevated prostate-specific antigen (PSA) level. BPH in and of itself is not life-threatening unless the enlargement of the prostate severely interferes with urine flow. BPH is not cancer and does not cause cancer. However, BPH is common, and its manifestations can sometimes mimic prostate cancer.
The American Urologic Association Guidelines set forth specific recommendations for the frequency of early prostate screenings for various age and risk groups. Generally, for asymptomatic men ages 55 to 69 at average risk, prostate screening is recommended every two years after weighing the benefits and risks. The American Cancer Society guidelines for detection of prostate cancer stress that a risk-benefit discussion be held with the patient about screening before proceeding. A prostate screening is generally made up of a digital rectal exam (DRE) and a PSA test. If PSA levels are elevated and/or if, upon DRE, the prostate is found hard, with a nodule present and/or irregular in size, these findings are suspicious and may require a prostate biopsy to rule in or rule out prostate cancer.
Performing prostate screenings becomes particularly complex when a patient has BPH. The normal range for a PSA level is under 4.0 ng/mL; however, it is not unusual for a BPH patient to also have an elevated PSA level. In that circumstance, the key is to ensure that the PSA level is stable over time. A sudden rise in PSA level and/or an abnormal digital rectal exam is an indication for further investigation, as that patient may have both BPH and prostate cancer. Moreover, a patient with prostate cancer may be asymptomatic or may have the same urinary symptoms he has always had with BPH.
The key to successfully defending a “failure to diagnose” cancer case is thorough and contemporaneous documentation of the physician’s thought process and the risk-benefit discussion with the patient. Consider the case of a patient with long-standing BPH, who had consistently stable but elevated PSA levels of 6, with normal digital prostate exams over many years, who suddenly, at the age of 66, had a PSA level of 13 and an abnormal digital prostate exam. The physician recalled having a risk-benefit discussion with the patient about having a prostate biopsy but the patient was noncompliant. The physician did not document this discussion, the patient’s noncompliance or the suspicion for prostate cancer and continued to list “BPH” as the sole diagnosis in the chart. The plaintiff, who ended up with stage 3 metastatic prostate cancer the following year, denied being told by his physician that he could have prostate cancer, claimed he was advised that he continued to have BPH and denied being given the option for biopsy. In such a case, the contributory negligence of the patient will not carry any weight, and the defense of the physician will be difficult. As in most malpractice cases, the plaintiff will argue that if the communication is not documented, it never took place.