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"Once you know there is a cancer, you have to be very careful," Dr. Thrasher noted. If the patient opts for active surveillance but then is noncompliant with regular follow-up tests, and a metastatic prostate cancer is discovered after a few years, then there is danger — especially in the litigious environment of the United States — of a claim of medical negligence, because there might have been a window of opportunity for curative treatment that was missed, he explained.
Dr. Cooperberg and colleagues also cite "medicolegal" risks as a retardant to the uptake of active surveillance.
But Dr. Lam said that, with a patient who is carefully oriented to active surveillance, "we are not very concerned about lawsuits."
Leaving aside the very low probability of a man whose diagnosis indicates suitability for active surveillance having metastatic disease after a few years, just how big is this medicolegal risk? Let me explain some of the points that lead me to wonder how much of these oft repeated issues may be more spin than reality:
1. There was a recent exchange on this Forum/on another Forum concerning what appeared to be a very clear case of negligence with the doctor said to have admitted that they missed the high and rapidly increasing PSA level. The man was urged by some to seek compensation for the additional costs now incurred but was also counselled to be very cautious in how he went about any kind of legal action, since this was fraught with difficulties.
2. In this Forum Paul A reported that after he had a positive PSA after surgery, another doctor carried out a full examination and it was found that only half his gland had been removed. This was categorised as a fairly common ‘surgical mishap’ and, as he says “I met with a malpractice lawyer and he didn't want to take the case because he felt it would be too hard to prove.”
3. Although my memory isn’t what it was, I seem to recall a retired attorney who was a regular poster at one time setting out just how difficult it was to establish solid grounds to support a medical malpractice suit.
4. Against these three points, it may be said that there are reports of enormous payouts; that insurance premiums are high and continue to rise and so on. But how much of that is spin, managed by those who have most to gain from such reports? I spent my working career in the insurance industry. I will not bore anyone with the rationale behind establishing estimates for future claims that are much higher than necessary beyond saying that in most environments there are significant tax advantages in doing this. These high estimates of future claims are also the rationale for increasing the costs of the insurance. The insurer’s rationale for the high estimated future costs are often based on the high court awards which make the headlines but which are often overturned (and not reported) on appeal.
5. And finally, if there is a substantial medicolegal risk in failing to take early action for all prostate cancer diagnoses, surely there must be a growing risk for such suits if early unnecessary action is taken. It is becoming ever more clear than many procedures are not in the man’s best interests and all lead to some loss of quality of life. Surely these men will have grounds for action, as will men whose post surgical pathology report shows no sign of prostate cancer as is the case in a small percentage of men which might be growing with the Gleason migration as reported.
Re: Things that puzzle me about PCa #7 in an endless series – malpractice
Terry, I think it nearly impossible to win any lawsuit related to prostate cancer in the U.S. state where we live because of the requirements that one doctor testify against another (good luck with that one), that there is a statute of limitations of four years, and the plaintiff must prove that the treated individual (in our case, the untreated individual) would have had a 50% likelihood of a better outcome. One would think it would be enough to demonstrate that the service delivered less than standard care and that the outcome was to remove any chance to avoid metastatic cancer.
Re: Things that puzzle me about PCa #7 in an endless series – malpractice
Jo,
I think you're probably quite correct. I beieve it is very difficult indeed to sue doctors for malpractice. that is why it is a very por excuse for any doctor to speak up against AS as an option in appropriate cases, using gthe fear of malpractice as an excuse.
Re: Things that puzzle me about PCa #7 in an endless series – malpractice
From my limited knowledge of professional malpractice and indemnity issues, it is not sufficient just to show or prove that you had a bad outcome.
It is more a case of "was the advice that you were given typical of the advice that would be given by a majority of practitioners working in that field of practice in the same circumstances?"
Therefore most doctors would be wary about suggesting active surveillance unless you had a very low grade cancer and ticked all the boxes for one of the accepted AS protocols.
And even if it would be hard to mount a successful case for medical malpractice, some people would still try, and doctors don't want the bother of having to fill in forms, write reports, attend lawyers offices, etc., even if the action was destined to be unsuccessful. Also, unsuccessful claims against a doctor's professional indemnity insurance are not highly regarded by the insurance company.
Even if AS was reasonably appropriate, it is far easier to do what most other doctors would do in the same circumstances, and that is to recommend definitive treatment "while there is still the window of opportunity for a cure".
In my case, I have made it clear that the choice for AS is my decision and my GP is happy to go along with it and continue to write out referrals for PSA tests and stuff.
Re: Things that puzzle me about PCa #7 in an endless series – malpractice
I think you missed the point. The surgeon said he was going to remove my prostate using the most advanced tool available. Despite using a magnified 3D vision system and computer assisted manipulators, he missed half of it. When my PSA didn't go down, he was unable to find the cause (remaining prostate tissue) that another doctor found right away. To me, that sounds like he made serious mistakes during and after the procedure.
Re: Things that puzzle me about PCa #7 in an endless series – malpractice
Paul, medical malpractice is interesting. It's not enough to violate best practices. although that's the first test, the second is proving that you had at least a 50% chance of better outcome if he had followed the standard. that's a really tough one to document. It's so much easier when the test is did he/she remove something he should not have - like the wrong kidney. Sounds like your care was terrible, just as was the case for my husband. My husband's outcome is widely metastatic cancer 4 years after being turned away from post surgical external beam radiation to the prostate bed by a radiologist who was anticipating distant metastases in spite of all evidence to the contrary. Of course I have to credit our belief in a substandard care system too.
