Jury: FAA doctor not liable for failure to diagnose prostate cancer – Defense Verdict

This medical malpractice case involved allegations of delayed diagnosis of prostate cancer. The plaintiff is a successful real estate developer and former state government official. He alleged that the defendant practice group’s physician was negligent in failing to diagnose his prostate cancer by ordering PSA testing or otherwise counseling him about monitoring his prostate health over a four-year period after he turned 50.

The plaintiff alleged that the delayed diagnosis allowed his cancer to progress to incurable metastatic disease. Although he was in remission at the time of trial, the plaintiff’s experts opined that the delayed diagnosis made his treatment more involved and expensive. He also faced a high probability of recurrence and a significantly shortened life expectancy. The plaintiff is married with young children. Both the patient and his spouse gave compelling testimony about his fear of recurrence and the emotional impact of the alleged delay in diagnosis. His claim of substantial lost wages was withdrawn before trial in response to defense motions.
The plaintiff was a pilot, and presented to the defendant practice group every two years from 2002 through 2009 for Aviation Medical Exams, required by the FAA to maintain his pilot’s license. The physician, also a pilot, was certified to perform these exams. Prostate health screening is not within the usual scope of the FAA exams, but the plaintiff claimed that the doctor had agreed to be his “regular physician” and take care of all of his health needs at the same time. The patient claimed that the doctor performed digital rectal exams at each visit, which the physician denied and which was not recorded in the medical record.

On two occasions after he turned 50, in 2006 and 2009, the patient presented to the defendant for office visits relating to sleeping problems and allergies. He also had his blood drawn and his cholesterol checked at the time of his 2008 FAA exam. There was no discussion of prostate health screening at these visits and plaintiff’s experts argued that it was required by the standard of care because of the patient’s age. Defense experts countered that these were limited scope visits with no standard of care duty to provide prostate health screening advice or testing.

At trial, the defendant demonstrated that it was not acting as the patient’s primary care provider, and had no duty to perform PSA testing at the times alleged. It was revealed that the patient had identified other doctors as his “primary care physician” to his health insurance company, and to several other healthcare providers. The defense called five third-party record custodians who introduced this evidence at trial, effectively impeaching the plaintiff’s testimony that he considered the defendant physician to be his primary care physician throughout the critical time period.

The defense also presented causation evidence about the specific type of cancer experienced by the plaintiff, noting that it was an aggressive form of cancer that unfortunately carried a poor prognosis, even with earlier diagnosis.

After a four-day jury trial, the Henrico County jury deliberated for less than 25 minutes before rendering a verdict in favor of the defendant.

[14-T-057]

Type of action: Medical malpractice
Injuries alleged: Advanced, incurable prostate cancer
Court: Henrico County Circuit Court
Tried before: Jury
Judge: L.A. Harris, Jr.
Date resolved: Feb. 27, 2014
Special damages: In discovery, the plaintiff claimed nearly $250,000 in medical bills. He also claimed lost wages. At trial, no medical bills were entered into evidence and the plaintiff did not claim lost wages.
Demand: Plaintiff’s attorneys asked jury for $2,000,000
Offer: None
Verdict or settlement: Defense verdict
Attorneys for defendant: Sean P. Byrne and Jodi B. Simopoulos, Glen Allen
Defendant’s experts: Gary A. DeRosa, M.D.; Mitchell B. Miller, M.D.; B. Mayer Grob, M.D.
Plaintiff’s experts: Gerald Sokol, M.D.; Marc J. Schneiderman, M.D.; David Chesler, M.D.
Insurance carrier: The Doctors Company