Steven E. North, Esq. and Laurence M. Deutsch, Esq.
Our practice has been seeing more inquiries about prostate cancer cases and often for good reason.
Some of the most serious cases involve patients who believe their physicians did not make timely diagnoses of prostate cancer. There are many guidelines for prostate screening and testing (including biopsy) put forth by the American Urological Association (AUA). While most practitioners will say that these guidelines are not “authoritative” or a “cookbook,” it is often difficult for a physician to say that he or she provided good care if that care does not conform to the screening guidelines put out by their own organization.
In other instances, tests were administered, but the results warranted follow-up care or treatment that was not provided. Sometimes the issue is communications-related: A physician may not have communicated results to a patient or communicated them improperly to other physicians.
The technique used for a prostate biopsy or more significant surgery has also led to claims.. Some patients were injured by improper use of robotic surgery techniques by physicians who touted its benefits but did not take the time to master them before trying it on patients.
Not all complications are true malpractice, even if a patient is injured. It is well known that prostate biopsies can result in infection. We recently saw a reported case in which, post screening, the patient developed a severe systemic infection that caused injury in multiple places, including his heart. The occurrence of infection secondary to a biopsy, however, is a recognized risk of the procedure and therefore not a sound basis for medical malpractice prosecution. If the need for a biopsy had not been indicated, then the resulting adverse effects might have been actionable.
The medical community has been searching for technologies to replace the physical biopsy to avoid infection risk. It has been suggested that some patients already diagnosed with prostate cancer, the use of MRI instead of biopsy as a monitoring tool might obviate the need for further biopsies with their associated invasiveness and potential for infection or other adverse effects. However, according to a recent study cited on Medscape.com, the accuracy of an MRI as compared to biopsy is still not proven, so the MRI is generally not considered a true substitute for biopsy in all cases. The data do suggest that for a subset of patients with low-grade cancer or those under more active surveillance, an MRI may be an acceptable alternative to a physical biopsy.
The implications of these studies go beyond legal cases and provide some lessons for patient care. A patient making a decision about how to evaluate potential prostate cancer or treat his particular prostate cancer would be well advised to become educated about his particular situation, so he and his physician can tailor the treatment to the risks and/or benefits of his situation.
Medscape.com, “Can MRI replace Biopsy for Prostate Cancer Surveillance,” May 17. 2017
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Specialist in Cases Involving Significant Damages • Listed in Best Lawyers • Listed in Who’s Who • Commentator, Court T.V., Eyewitness News, Talk News T.V. • Contributing Author, New York Law Journal Author of Numerous Publications • Faculty Chairman, Continuing Legal Education Programs • Trial Lawyer and Bar Association Committees
1988, New York and U.S. District Court, Northern, Southern, Eastern and Western Districts of New York. Union College, Schenectady, B.A., magna cum laude, 1984 Phi Beta Kappa; University of Chicago Law School, J.D., 1987
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