Bill – $2,000,000 Prostate Cancer Case Recovery
The following is a case we handled for a middle aged gentleman who suffered a three year delay in the diagnosis of his prostate cancer with devastating effects.
Our investigation into the case began like most with a detailed interview of Bill and his wife. From the conversation we learned that in December 2014 when Bill was fifty-one he saw a new physician for a full physical including blood work. Bill recalled speaking to the doctor about the results of the exam being normal other than being told he had a hernia and to see a surgeon. Bill also recalled giving blood but did not remember hearing about the results.
Bill told us that approximately three years later he saw a different doctor who also conducted a physical exam and blood tests. A few days after the exam Bill recalled being told he had an elevated PSA and he would need to have a biopsy done. A few weeks after the biopsy Bill recalled being told he had aggressive prostate cancer and would need to have his prostate gland removed in an operation known as a radical prostatectomy. Bill recalled being told that lesser invasive treatment options such as radiation therapy, cryotherapy and hormone therapy were no longer available to him because of the advanced nature of his disease.
About a week before the operation was scheduled, Bill, out of desperation, decided to have his blood drawn one more time at the local hospital thinking it was possible there had been a mistake. It really came as no surprise that the results were unchanged and the PSA was elevated. More puzzlingly, however, was the fact that Bill was asked by the hospital why he had not followed up earlier after his first abnormal PSA test in 2014.
By the time we spoke to Bill the results of his surgery demonstrated that his cancer had spread outside of his prostate gland and was terminal. In fact, Bill had recently been told there was a lesion on his spine believed to be the early spread of his cancer and that his prognosis for ten year survival was uncertain. Although Bill accepted his fate he could not help but question whether things could have turned out differently had he known of the earlier test.
At first glance Bill’s case seemed pretty straightforward. Based on everything we knew about the importance of early detection, how could the three years not have made a difference? So the second thing we did was request all of Bill’s medical records and lab results so that we could establish a timeline and recreate the events to figure where things went wrong.
When we received the first doctor’s chart, we were not surprised to see the regular administrative forms and the progress note from the physical exam in 2014. But we were surprised to see the results from the lab showing the elevated PSA. And even more surprised to see what appeared to be a letter from the doctor to Bill telling him that he was concerned about the elevated PSA but believed it was most likely due to a urinary tract infection which also appeared positive on the results from the lab. Admittedly, our initial reaction was to think the case had tanked and that Bill had misled us. But we also knew there are always two sides to every story and given what he had been through Bill deserved a chance to have his side heard more closely.
So we went back and analyzed the letter more closely and noticed a couple of key things. One, it was not signed. Two, it was not dated. Three, it was not addressed to Bill nor did it contain his physical mailing or e-mail addresses. Four, there was no proof or indication that it had been sent or delivered to Bill electronically. To us, the letter appeared suspicious. It just seemed to conveniently assert too many facts to make the doctor look good that did not fit the timeline we recreated.
But what we believed about the letter was only speculation and we knew it would be difficult to disprove its authenticity during the pre-suit phase without the ability to subpoena information from the doctor’s computer record keeping program. So rather than approaching the case under the theory that Bill never received the test results which could depend on the issue of credibility, we tackled the case on the indisputable medical principle of follow-up care assuming the facts in the letter as true.
Authentic or not, the doctor would have to agree that it was by letter that he chose to inform Bill that he had an elevated PSA. With a diagnosis as serious as possible prostate cancer, we did not believe snail mailing the information without even a phone call complied with the standard of care. The doctor would also have to agree based on the contents of the letter that he chose to treat an elevated PSA as a urinary tract infection with a course of oral antibiotics. In our opinion, this lackadaisical approach to dealing with a potentially fatal disease violated the key principle of differential diagnosis to rule-out worst case first. In other words, because prostate cancer is far more dangerous than a urinary tract infection, we felt we could prove the standard of care required Bill’s doctor to address the cancer first.
Finally, the doctor would have to agree that the letter marked the last communication he ever had with Bill. In our view, this violated the cornerstone of the doctor-patient relationship of effective communication. If a physician orders a test, he or she is responsible for ensuring the results have been received and understood. If the doctor’s plan was for Bill to take a course of antibiotics knowing he could have prostate cancer, than it was his responsibility to follow-up on the efficacy of the treatment and at the very least bring him back to check on his status.
By presenting the case in this manner, we were able garnish support from the internal medicine community without having to impugn the doctor’s credibility. But given the length of time that had gone by between the date of Bill’s exam and discovery of the information, we had the difficult task of first getting by the dangerous rule of statute of limitations.
Ordinarily, the time period for filing malpractice cases like Bill’s in Connecticut is two years and in some circumstances three years. The difficulty with Bill’s case was that as with many cancer diagnosis cases, he did not find out about what occurred until more than three years afterwards. Not surprisingly, the doctors launched a full-blown attack.
We responded by arguing a rare exception to the three year rule under a legal doctrine that typically does not apply in medical malpractice cases that extended the time period beyond three years even without evidence of an ongoing physician patient relationship. The decision by the trial court was critical. By securing a victory at this level, it meant there was no way to stop us from ultimately presenting Bill’s case to a jury for a decision.
Given the conspiracy of silence among doctors, the process of retaining experts to support our cases is difficult enough to begin with. But when doctors start coming together to proactively advance theories designed to make it difficult for plaintiffs to win like they did initially in Bill’s case, the process becomes almost unworkable. Despite everything we knew about the importance of early detection in cancer diagnosis cases, the first several physicians we spoke to uniformly refused to testify that the delay made any difference in Bill’s case. If called upon to testify, they all indicated they would have to say that even if the delay was unreasonable it did not have any effect on Bill’s outcome. Although we are not normally conspiracy theorists, it started to look like the medical community was doing more than remaining silent. It was creating another barrier for Bill to obtain a victory.
In our refusal to give up, we arranged a meeting with one of the area’s top urologists armed with information from studies that clearly established a correlation between the amount of malignant invasion through the prostate gland and rate of survival. In other words, one could not argue with the science behind that a three year earlier diagnosis would have meant less invasion of the cancer into Bill’s prostate gland. Although the doctor agreed with us, he candidly admitted that it would have been professional suicide for him to testify in a medical malpractice trial against another doctor. Off the record, however, he gave us the name of a colleague whom he felt was in a much better position to assist us.
Citing to a study establishing a 45% decrease in prostate cancer related deaths since the advent of early screening in the 1990s, the new urologist was a strong advocate for Bill. He felt strongly that the three year delay deprived him of the opportunity to eradicate his cancer. In his opinion, had the diagnosis been made three years earlier, the cancer would have been markedly less invasive and restricted to the prostate gland. At that stage, Bill would have had options for treatment including surgery to remove his prostate gland. But the major difference would have been a much more successful surgery. With our new expert on board, we felt confident we had successfully overcome every obstacle that stood in the way of Bill getting some retribution.
As can be seen, medical malpractice cases are difficult for many reasons. But like with all areas of the law, experience and competency make a difference. We pride ourselves on the amount of work we put into our investigations and the creativeness of the solutions we develop. When we make a commitment to a case like Bill’s, we do everything we can within the rules to win. For Bill, we were able to achieve a multi-million dollar settlement for the unnecessary harm he endured and the poor treatment he received.