Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Prostate Cancer Diagnosed After Inconsistent PSA Testing
A man in his 40s was examined by the defendant internist, whose patient he had been for six years, in January 2007. Under the defendant’s care, the patient had undergone prostate-specific antigen (PSA) testing in 2001, 2003, and 2004. PSA testing was not performed at the January 2007 visit.
Late that year, at a visit with a new internist, the patient underwent PSA testing. Results eventually led to a diagnosis of cancer of the prostate. By the time the matter was settled, the man’s cancer had metastasized, and he was not expected to live longer than three years.
The plaintiff claimed that the defendant internist should have performed PSA screenings in 2005, 2006, and 2007, as this would have led to an earlier diagnosis. The defendant argued that he had referred the plaintiff to a urologist at the January 2007 visit for treatment of a kidney stone and assumed that the urologist would conduct a PSA screening as part of his evaluation.
The plaintiff, however, countered that no such referral was given, pointing to notes from the January 2007 visit that included only a handwritten reference to a “urologist,” with no specific mention of a referral or of a kidney stone.
The defendant also argued that the plaintiff’s cancer was of a rare and aggressive type and that the outcome would not have been changed with a diagnosis in January 2007.
Outcome
According to a published account, a $2.3 million settlement was reached.
Comment
This patient, a man in his 40s, was under the care of his primary care provider, the defendant internist, from 2001 to 2007. For reasons that are unclear, the internist provided PSA testing for prostate cancer in 2001, 2003, and 2004, but not in 2002 and not between 2004 and 2007. The patient’s second internist resumed PSA screening that ultimately led to a diagnosis of prostate cancer, which had metastasized.
From the facts presented, it is unclear how often the patient saw his original internist and whether or not he was offered PSA screening annually. What is clear is that the supposed referral to a urologist for renal calculi did not result in an actual visit. Further, the defendant internist’s passing reference to a urologist in the clinical notes fails to support the contention that the urologist was expected to conduct a PSA screening. Defense counsel, recognizing the significant malpractice exposure in this case, settled before trial for $2.3 million.
The management of referrals and the approach to screening both warrant discussion.
First, any time the intent is to make a referral, make sure that referral is formally made. While many practices have a formal mechanism to refer patients by generating a referral form, others may not. Simply instructing a 56-year-old patient with GI bleeding to “see a gastroenterologist” is exceedingly risky.
At minimum, a written clinician-to-clinician referral should be made on the patient’s behalf. Correspondingly, the consultant should furnish a return report in a timely fashion; the report should be reviewed by the referring provider and placed in the patient’s record. If a patient fails to keep an appointment with a consultant, a follow-up call should be made to ascertain and record the reason. Anything short of this level of formality places the patient in peril and exposes the clinician to malpractice risk.
Second, in primary care practice, a routine screening program should be clearly established. Ideally, a screening checklist or template should be maintained in each patient’s record to account for all major disease entities, following specific, evidence-based standards, and to ensure patient follow-up.
Unfortunately, screening protocol standards are often the source of controversy among authoritative bodies. For example, the American Academy of Family Physicians (AAFP) now recommends against the use of PSA screening in asymptomatic men, whereas the American Urological Association recommends offering prostate cancer screening via PSA and digital rectal examination (DRE) each year to men older than 40.
And that’s just one such conflict. In 2009, the US Preventive Services Task Force (USPSTF) ignited a firestorm of controversy when it determined that women should undergo screening mammography biennially, beginning at age 50 (instead of annually, beginning at age 40). As the federal government becomes more involved in health care, it remains to be seen how influential the USPSTF, a government-appointed panel commissioned to set preventive health care standards, will be—and whether government funding for screening tests will depend on USPSTF recommendations.
When confronted with conflicting screening standards, how should clinicians proceed?
From the standpoint of malpractice risk reduction, the safest course of action is to identify the most liberal screening standards from an authoritative source, provide the patient with all information and options, including the clinician’s advice and guidance, and provide screening when the patient wishes it. Record the patient’s decision (whether acceptance or refusal), and document your discussion regarding the risks and benefits of screening; this can be included in the screening template.
Regarding prostate cancer screening, for example, it would be reasonable for a primary care provider to offer annual prostate cancer screening by PSA and DRE to men older than 40—but explain the current conflict among the experts. Discussion should include the benefits and the not-insubstantial risks inherent in screening (ie, overdetection and overtreatment in cases of false-positives). It would also be reasonable (and maybe necessary) for the primary care clinician to give a man in his 40s an opinion as to whether screening makes sense for him. This approach maximizes the patient’s self-determination, allowing him to make an informed decision.
If the clinician practices in a specialty that follows a liberal screening standard, it is wise to adopt that standard. In most jurisdictions, a clinician will be held to the same standard of care as that of any reasonably prudent clinician practicing in the same field or specialty. An NP or a PA who practices in urology, for example, will be expected to follow the guidelines from the American Urological Association and offer men PSA and DRE beginning at age 40. A family practice clinician may be ultimately safe following AAFP or American Cancer Society recommendations by not offering screening—but there are risks.
Any patient who presents late with a disease that could have been detected earlier by screening will almost certainly claim that, had they been offered screening, they would have accepted. Expert testimony will likely tout the benefits of lifesaving screening, and the jury may be persuaded by counsel for the plaintiff that “a simple blood test” could have saved the plaintiff’s life. Further, jurors are likely to have personal experience with screenable diseases, such as breast and prostate cancer, and they may know someone who has benefited from screening. During deliberations, jurors will import that personal experience into the decision-making process. Thus, it is safer to inform the patient and offer screening than to make a unilateral decision.
In sum, manage referrals and screening formally, use a template to ensure all screening is completed, and follow evidence-based medicine regarding screening protocols. When a conflict exists between authoritative sources, it may be best to offer the patient information, options, and guidance, allowing him or her to make an informed decision based on current screening recommendations and the patient’s own wishes. —DML