Did failure to do foreskin exam lead to legal action?

A 58-year-old male presented to three urologists with a lesion on the glans penis. He reported that the glans penis had been rubbed raw by the foreskin. He was then admitted to the hospital for circumcision and a biopsy of the lesion. The foreskin was also sent for biopsy.

The pathologist subsequently read the pathology slide, diagnosing epithelial dysplasia. The results were sent to the urologists, who did not conduct a further investigation of the results.

Ten months later, the patient was diagnosed with penile squamous cell carcinoma that required surgical removal of the glans penis.

Pathologist, urologists sued

The patient sued the pathologist and the three urologists, claiming that the pathologist negligently misread the pathology slide. As against the pathologist, the plaintiff claimed the pathologist was negligent in reading the biopsy as epithelial dysplasia when, in fact, he suffered from carcinoma site II, a noninvasive skin lesion. As against the urologists, the patient claimed the urologists were negligent in relying on the reading from the pathologist and failing to perform a microscopic evaluation of the foreskin. He further claimed the urologists were negligent in failing to advise him of the possibility of a pre-cancerous condition.

The case proceeded to trial. At trial, the patient claimed that the lesion was very treatable with topical creams. The patient also contended that the urologists should have followed him more closely and re-biopsied within 6 weeks. The patient asserted that had a second biopsy been performed, the cancer would have been discovered.

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The patient’s expert pathologist/oncologist reviewed the medical records and opined that the defendant pathologist misread the pathology slides. The expert further asserted that topical creams should have been prescribed with a diagnosis of epithelial dysplasia.

The patient’s expert dermatologist/pathologist testified that the defendant pathologist should have performed a microscopic exam of the foreskin. The expert further testified that the defendant pathologist should have re-biopsied the lesion. He also contended that the patient was not properly followed after the circumcision and biopsy. The patient’s expert urologist testified that there was no hope of reconstructive surgery or implants.

The patient’s expert psychologist testified that the patient suffered tremendous psychological trauma due to developing cancer and requiring the removal of the glans penis. The expert psychologist further testified that the patient suffered psychological trauma due to the loss of his marital relationship.

In response, the defendant pathologist testified that he had properly read the biopsy slides as indicating epithelial dysplasia. The defendant pathologist further maintained that it was not procedure to perform a microscopic exam of the foreskin unless indicated by a macroscopic exam. His own expert testified that epithelial dysplasia was not an unreasonable reading of the slide. The defendant pathologist’s second expert agreed that epithelial dysplasia was a reasonable diagnosis.

The three defendant urologists, members of the same medical group who all had some contact with the patient, argued that they had reasonably relied on the report rendered by the defendant pathologist. The defendant urologists further argued that epithelial dysplasia is not a pre-cancerous lesion and is a benign disease.

Next: Missed follow-up appointment allegedMissed follow-up appointment alleged

The defendant urologists contended that the patient failed to show for a follow-up appointment 6 weeks after biopsy and that they had no reason to believe that a cancerous condition had developed.

The defendant urologists further asserted had the patient presented with persistent problems, a second biopsy would have been performed.

The defendant urologists’ expert urologist testified that it was proper to rely on the pathology report. He further testified that epithelial dysplasia is not a pre-cancerous condition. The defendant urologists’ additional expert urologist testified that the urologists did not deviate from accepted standards of care. He also opined that epithelial dysplasia is not pre-cancerous. This expert urologist admitted on cross-examination, however, that it was unacceptable practice to fail to microscopically exam the foreskin.

Read: Why physician testimony is so important

The defendant urologists’ expert oncologist testified that epithelial dysplasia is not a pre-cancerous condition and that the urologists acted reasonably in relying on the pathology report.

Following a 2-day deliberation, the jury found in favor of the patient. The defendant pathologist was found 60% negligent, and the defendant urologists were found 40% negligent. Each defendant urologist was found 13.3% negligent. The jury awarded $2 million to the patient and $800,000 to the patient’s wife.

LEGAL PERSPECTIVE: The failure to perform a microscopic foreskin exam was a failure the urologists were unable to overcome. On cross-examination, their own expert, who testified it was reasonable and within the standard of care to rely on the pathologist’s report, conceded that this practice was unacceptable. That testimony, combined with the patient’s experts’ testimony, likely led to the jury’s final determination in this case.