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Failure to inform of need for PSA: $2 million verdict reversed!

CASE ON POINT: Turner v. Rosenfield, 2008 Ohio-1932 (04/24/2008) -OH

ISSUE: Was the physician in this case negligent in failing to warn his 60 year-old African American male patient of the need for prostate screening?

CASE FACTS: Alvin Turner received general medical care from Dr. Allan Rosenfield between 1997 and 1999. Upon discovery that Alvin had prostate cancer, which Dr. Rosenfield failed to diagnose, Turner and his wife Henrietta filed suit against Dr. Rosenfield, his professional group and others alleging medical malpractice and negligence. The Turners settled their claim with all of the defendants except Dr. Rosenfield and his medical group before trial. Thus, the case proceeded to trial only against Dr. Rosenfield and his group. During the course of the trial, the jury heard testimony from Mr. and Mrs. Turner and their daughter. The jury also heard testimony from the Turners' medical experts, Drs. Raymond Rosmond and Joseph Smith, as well as Dr. Rosenfield. Dr. Rozman, board-certified in internal medicine and gastroenterology, described the two screening tests for prostate cancer used at the time, a digital rectal exam (DRI), and a Prostate Specific Antigen (PSA) test. Dr. Rozman testified that the standard of care required a physician to discuss prostate cancer screening with male patients over age 50, and in particular those at an increased risk of developing prostate cancer. This at-risk group included Turner, an African-American. Dr. Rozman testified that Dr. Rosenfield deviated from the standard of care by failing to discuss prostate cancer screening with Turner, and this deviation resulted in a delaying a diagnosis of prostate cancer to a time when the cancer was more advanced. Dr. Rozman based his opinion on the lack of any record of a discussion about prostate cancer screening in Dr. Rosenfield's notes, although he agreed that the standard of care did not require a notation. Dr. Rozman expressed no opinion whether Turner would have been cured if his cancer had been diagnosed earlier, stating that matter would be within the expertise of a urologist or urologic oncologist. After a jury trial, the jury returned a verdict in favor of the Turners. Dr. Rosenfield argued that the trial court erred by denying the defendants' motions for directed verdicts and for a judgment notwithstanding the verdict (JNOV). Dr. Rosenfield and his professional group appealed. Rosenfield was negligent in failing to timely diagnose prostate cancer in Turner. After a jury trial, the jury awarded the Turners $2,000,000. Dr. Rosenfield argued that the trial court erred by denying the defendants' motions for directed verdicts and for a judgment notwithstanding the verdict (JNOV). Dr. Rosenfield and his group appealed.

COURT'S OPINION: The Court of Appeals of Ohio reversed the judgment entered by the trial court on the jury verdict for the plaintiff and remanded the case back to the trial court with instructions to enter judgment for the defendants. The court held, inter alia, that the trial court erred by failing to direct a verdict for the defendants or grant summary judgment for the defendants. The court found that the plaintiffs' expert evidence was insufficient to support a traditional proximate causation analysis, that but for defendants' negligence Turner would have been cured. Further, the court opined that even if the plaintiffs had pursued a "loss of chance" theory of causation, they did not provide evidence of the percentage of chance lost for purposes of calculating damages. Therefore, the court concluded, the trial court should have directed a verdict for the defendants.

LEGAL COMMENTARY: A strong dissenting opinion was filed in this case. While the dissenting judge indicated her appreciation for the Majority Opinion's approach to the case and recognized that it was not an easy case, she noted that the law on the subject of shortened life expectancy is not as pristine as necessary in resolving the myriad of issues raised in such cases. However, she observed that the law in Ohio was clear that shortened life expectancy is a cognizable injury and suggested that it is distinguishable from loss chance because the loss chance injury is more compatible with wrongful death torts than that of shortened life expectancy. Shortened life expectancy denotes that the plaintiff-patient is alive at the time of the case, and the primary complaint is that the plaintiff-patient has lost life time or will lose life time because of the defendant-doctor's negligence. The dissenting judge stated "The primary issue ... is whether after construing the evidence most strongly in favor of the [plaintiffs] an inference may reasonably arise that the alleged negligence ... was, in probability, the direct and proximate cause of [plaintiffs'] reduced life span." Further, the dissenting judge observed that the Ohio Supreme Court stated that in these increased risk cases the causation is relaxed. Additionally, the Indiana Supreme Court offered the following as further clarification on the question: "money is an inadequate substitute for a period of life, but it is the best a legal system can do. The alternative is to let a very real and very serious injury go uncompensated even if due to negligent treatment ..." The judge concluded by noting that the patient was a 60 year-old African-American male in an at-risk group for prostate cancer. The patient, as an expert medical witness observed, should have been screened for prostate cancer. However, he was not screened!

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the Untied Slates. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been punished in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Article Details
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Title Annotation:Medical Law Case on Point
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Case overview
Date:Jun 1, 2008
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