Expert testimony is necessary to establish standard of care

Kenton H. Steele, Esq, writes, "Experts identify for the jury or judge what conditions or circumstances were essential for the physicians’ decision-making process."

This column will compare 2 cases that appear similar but for which different outcomes were reached. The different outcomes in the following cases highlight the nuances that can mean the difference between liability being established for a practitioner accused of malpractice and a verdict in their favor.

Case 1

A man presented to the urology department of a US Department of Veterans Affairs medical center on October 9, 2009. After performing testing, a urologist determined that the patient had an abnormally high prostate-specific antigen (PSA) level. The patient was instructed to return for a follow-up visit in 4 months, but he never returned.

In August 2011, the patient presented to a physician’s assistant (PA). The PA recorded an increasing PSA level and ordered a urology consultation. A biopsy was performed on November 30, 2012, more than 3 years after the patient’s first urology visit. The patient received a diagnosis of prostate cancer. The prostate cancer metastasized, and the patient had to undergo external beam radiation and hormone therapy.

The patient filed a complaint against the initial urologist on October 4, 2013, alleging negligence and seeking $10 million in damages. The patient-plaintiff argued that his initial PSA level was suggestive of prostate cancer. The defense claimed that the urologist instructed the patient to make a 4-month follow-up appointment. The urologist contended that cancer seemed unlikely at the initial visit and said his diagnosis had been benign prostatic hyperplasia.

The issue proceeded to a bench trial, where a judge (instead of a jury) decided issues of fact. After 4 days, the judge determined that the urologist violated the standard of care by failing to explain the significance of the follow-up appointment and the elevated PSA level. The patient was not found contributorily negligent even though he failed to schedule a follow-up appointment. The judge awarded the patient $1.93 million on January 22, 2018.

Case 2

On March 18, 1999, a 59-year-old man was examined by a urologist who concluded that he had prostatitis. The patient’s PSA level was 4.4 ng/mL. The urologist prescribed an antibiotic to address the inflamed prostate and told the patient to come back in 2 months to recheck his PSA level. The patient did not return until February 1, 2000. However, his PSA level was within normal limits at that time. The patient didn’t see the urologist again until March 5, 2002.

On June 24, 2002, the patient received a diagnosis of prostate cancer with a Gleason score of 9. The patient sued the urologist for medical malpractice, seeking more than $3 million in damages. The patient-plaintiff argued the urologist should have performed a biopsy on his first visit, informed him that he might have prostate cancer, and scheduled him for the repeat PSA test rather than leaving it up to him. The patient contended that if the urologist had explained that an elevated PSA level indicated prostate cancer, he would have scheduled his follow-up appointment. The defense argued that the urologist’s initial diagnosis was appropriate and that the patient was at fault for not following the urologist’s advice to schedule a follow-up within 2 months. After an 8-day trial, a jury deliberated for 40 minutes and rendered a verdict for the defense, finding that the urologist did not breach the standard of care.

Conclusion

The different outcomes in the preceding cases highlight the contextual nature of medical care. Both cases involve a urologist determining a patient’s PSA level. In both cases, the urologist instructs the patient to schedule a follow-up appointment but fails to fully explain the significance of the elevated PSA level. The patient fails to schedule or attend follow-up appointments and subsequently receives a diagnosis of prostate cancer. However, in the first case, the urologist violated the standard of care, whereas the urologist in the second case did not. This is most likely due to the technical difference in information available to the urologists during the initial visit.

These minor technical differences are why medical experts are necessary to establish the requisite standard of care. Experts identify for the jury or judge what conditions or circumstances were essential for the physicians’ decision-making process. The expert then gives their opinion on whether the physician, under similar conditions and circumstances, would have done what the physician in question failed to do. The jury is not required to adopt the expert’s opinion but must use it to consider the facts.