Delayed referral to urologist led to death; jury awards $2.2 million

Acacia Brush Perko, Esq

A 57-year-old unemployed man with benign prostate hyperplasia (BPH) presented to his primary care physician. The patient reported that he had found a coin-sized bloody stain on his underwear after having engaged in sexual activity. The primary care physician ordered a blood test, and the test’s results revealed that the blood did not contain an abnormally high concentration of prostate-specific antigen (PSA).

A year later, the patient returned to his primary care physician and reported he had found another bloody stain on his underwear. His primary care physician ordered a urinalysis and performed a digital rectal exam of the patient’s prostate. The primary care physician reported that the test results did not reveal any abnormalities and concluded that the patient’s bloody discharges were merely the result of hematospermia.

Physician prescribes sildenafil citrate

Four months later, the patient returned. He reported that he had detected a lump in 1 of his axillae, and he also reported that he had not been able to maintain an erection. Tests did not reveal any abnormalities, so the primary care physician prescribed sildenafil citrate (Viagra).

Over the next 4 months, the primary care physician performed 2 additional exams. During each exam, the patient reported he suffered burning penile pain that occurred during or after intercourse. A test revealed that the patient’s blood contained a slightly abnormal concentration of PSA, so the primary care physician performed a digital rectal exam of the patient’s prostate. The primary care physician reported that he did not detect any nodules of the prostate, and the patient received a diagnosis of prostatitis. This time, the physician prescribed antibiotics.

Two and a half years after his initial visit, the patient returned to his primary care physician and reported he experienced a discharge of purulent seminal fluid. A test revealed that his blood’s PSA concentration had increased to 5.3 ng/mL. The primary care physician referred the patient to a urologist. The urologist confirmed that the patient was suffering metastatic cancer of his prostate. The cancer had progressed to a level such that it could not be eradicated, and the patient died.

The patient’s family brought a medical malpractice suit against the primary care physician, alleging that the disease could have been detected at least 1 year earlier and that prompt referral to a urologist and treatment would have saved his life.

Plaintiff: First symptoms should have prompted referral

At trial, the plaintiff’s attorney argued that the prostate cancer’s symptoms mimicked those of an enlarged prostate and that the patient’s first reported symptoms should have prompted a referral to a urologist, who could have performed the necessary tests that would have revealed cancer. The plaintiff’s expert urologist opined that prostate cancer is not easily detected, which is why the referral and involvement of urology was necessary.

The primary care physician’s defense counsel contended that the patient’s signs and symptoms were products of BPH, hematospermia, and prostatitis. The defense expert opined that these conditions are not certain indicators of cancer and that the treatment properly addressed those conditions. The primary care physician maintained he met the standards of medical care.

The patient died at age 62. He was survived by his wife, several adult children, and grandchildren.

After 3 days of trial, the jury deliberated for 1½ days, then returned a verdict for the plaintiff. In their responses to jury interrogatories, the jury found that the primary care physician breached the standard of care by failing to issue a timely referral to a urologist, and that this failure caused an incurable spread of cancer. The jury awarded the plaintiff $2.2 million.

LEGAL PERSPECTIVE: A number of state legislatures have passed tort reform and limited damage awards in medical malpractice cases in response to rising health care costs and what some see as frivolous medical malpractice claims. The actual cap varies widely state to state, and it also varies as to what types of claims are subject to caps. For example, because this case was a wrongful-death claim, the state caps did not apply.

Perko is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters. She welcomes your feedback on this column at APerko@reminger.com.