When people contact lawyers with regards to a cancer case, they virtually always wish to commence by talking about what the physician did wrong. But this is solely the first factor that an attorney should address when evaluating a potential case. There are two other factors that lawyers take into account. First, did the doctor’s error cause an injury to the patient. Second, is the harm sufficient that it makes sense economically to pursue a case.
It is frequently easy to establish if a doctor had information, such as a heigh PSA test result or an abnormal digital examination, which would indicate possible prostate cancer. Figuring out the delay that resulted from the doctor’s position is usually calculated by checking medical records for dates when the physician either did not follow the screening protocols or report abnormal test results, the point at which the cancer likely started to grow, and the point at which it was finally diagnosed.
What might be harder to establish is the degree of the injury to the individual. Unless the PSA surpasses at least a 10.0 (a PSa reading above a 4.0 is thought to be high) or a bone scan shows the presence of metastasis, regardless of whether the cancer has a high Gleason score, the majority of physicians would acknowledge that it is impossible to establish the stage of the cancer without performing surgery. Studying the specimens collected in the course of the surgery determines whether the cancer had already spread beyond the prostate. Even with a PSA higher than a 10.0 it is nevertheless possible that the cancer is still contained and that surgery can eliminate the cancer.
Consider a lawsuit where a physician ordered a PSA blood test on a male patient when the patient was 52 years old. The PSA level was 2.0 at that time. This level is commonly regarded to be normal. The patient’s PSA level was retested by the same doctor 2 years later. This time, however, the result indicated that his PSA level had reached a 4.2. This was marked as high in the record supplied by the lab that did the blood analysis. The man went to this doctor four more times in the two and a half years which followed. His doctor did not told him that the PSA level had been elevated and did not do additional PSA testing during that time. The man next had his PSA tested by the same doctor three years after that abnormal reading. At that time the results showed a PSA level of 5.25. The PSA level had gone up.
It was only at this point that the physician advised the patient about the previously elevated level. At this time, the doctor referred the man to a urologist. The urologist performed a biopsy which disclosed that he had cancer. During surgery his doctors discovered that the cancer had already reached beyond the prostate to the seminal vesicles and there was evidence of vascular as well as perineal invasion. Since the cancer had already began spreading beyond the prostate, the surgery lowered his PSA level but was not able to take out all the cancer. The patient thus underwent hormone therapy. His PSA levels then started to climb post-operatively. This indicates a poor prognosis so that it is unlikely that the man will live 5 years past the surgery.
The law firm that handled this claim reported that they attained a settlement in excess of $ 500,000 on behalf of the patient and his family. The patient was 60 years old at the time of the settlement. The settlement agreement left the possibility of a wrongful death lawsuit if the man does not live to the applicable statute of limitations.
As this claim illustrates, the full degree of the harm to the patient was not known until the results of the surgery were analyzed and showed that the cancer had, in fact, already begun spreading beyond the prostate. Plus it was not until the patient’s PSA levels started to rise post-operatively that the full extent of the harm was know. At that point the lawyer was in a position to be able to fully evaluate the patient’s claim. An important teaching point from this case is how the law firm made sure that the man’s wife did not lose the right to pursue a wrongful death claim if her husband died of the cancer within the time frame allowed by the Statute of Limitations Of course if there will later be a wrongful death lawsuit that may be pursued is determined by several issues including whether the man will die due to the cancer or from another cause and whether it happens during the time frame permitted by the applicable statute of limitations and statute of repose.