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Failure to Diagnose Prostate Cancer - The Marcus Case

CATEGORIES: Cancer Cases CASE LOCATION: Western District of PA. CLASSIFICATION: Substantial Recoveries

The Marcus Case

Case Summary

This patient’s providers were negligent for failing to acknowledge and act upon an elevated PSA level.  They failed to discuss the patient’s abnormal PSA results with the patient, order additional PSA testing, and failed to refer the patient to a urologist.  These providers further failed to perform prostate exams and failed to do anything to address the patient’s elevated PSA test result for over three years.  As a result, the patient was diagnosed with Stage 4 prostate cancer that required significant and debilitating cancer treatments.

Case Details

About one in nine men are diagnosed with prostate cancer in their lifetime.  If caught early, there is a good chance that prostate cancer can be curable.  However, like most cancers, if caught late, it is deadly

Prostate-specific antigen (“PSA”) is an enzyme produced by the prostate gland.  A PSA test is a blood test (cancer marker test) which measures this enzyme and is used to screen for prostate cancer.  PSA testing is often done yearly on men over age 50.  A normal PSA level is 0.0 to 4.0.  Levels of 4.0 to 10.0 are suspicious and suggest the possibility of prostate cancer.

On January 24, 2019, Mr. Marcus presented to his primary care physician’s office for his annual physical.  The PCP ordered bloodwork, including a prostate specific antigen (PSA) test, to be completed before his next visit.  PSA testing was performed on the same day and was returned as elevated at 7.48 ng/mL.  PSA scores above 4 ng/mL are considered abnormal.  The PSA testing report was released on that same day, January 24, 2019 at 5:52 p.m., however, Mr. Marcus was never informed of the results.

On January 31, 2019, Mr. Marcus called the PCP office for a medication adjustment, and on February 19, 2019, he called to advise the office of a phone number change and request a refill of a medication.  He was not informed of the elevated PSA testing results during either of those calls.

On June 7, 2019, Mr. Marcus presented to the PCP office, where he was seen by a physician’s assistant for follow-up care.  The PA failed to inform Mr. Marcus of his elevated PSA testing results at this appointment and failed to order additional PSA testing.

On August 8, 2019 and January 21, 2020, Mr. Marcus again presented to the PCP office for follow-up care where he was again seen by a PA.  On both occasions, the PA’s focus appeared to be on Mr. Marcus’ hip pain.  The PA failed to inform Mr. Marcus about his elevated PSA testing results on either of these visits and failed to order additional PSA testing.

On September 15, 2020, Mr. Marcus was seen by the PA for a video visit.  He was not informed of his elevated PSA results during this appointment and no PSA testing was ordered.

On July 7, 2021, a nurse entered a note that stated, “Spoke with pt and informed him that PCP does not need blood work at this time as he had blood work in January 2021 that was normal.”  On July 13, 2021, Mr. Marcus was again seen by the PA for a video visit.  Following the video visit, the PA noted, “Previous labs reviewed, are very good.

On April 7, 2022, Mr. Marcus presented to his PCP office for a walk-in follow-up appointment.  He was seen by a nurse practitioner.  It was at this appointment, over three years after the initial elevated PSA testing results were returned, that Mr. Marcus was informed of his elevated PSA score from January 24, 2019.  The nurse practitioner documented, “Elevated PSA: noted 1/2019 PSA 7.480, requesting prostate cancer check, PSA ordered.”  The nurse practitioner ordered another PSA test, which was performed that day.  The results came back extremely elevated at 29.029 ng/mL

Mr. Marcus was then referred to urology for a prostate cancer evaluation.  On May 3, 2022, Mr. Marcus underwent prostate biopsies, which were all positive for prostatic adenocarcinoma with high grade intraepithelial neoplasia.  Mr. Marcus returned to urology on May 17, 2022 where he was informed that he had very high risk prostate cancer.  He was ultimately diagnosed with Stage 4 prostate cancer.

As a result of the events that ended in Mr. Marcus’ Stage 4 prostate cancer diagnosis, Mr. Marcus was invited to speak with members of the administration at the hospital to discuss what had transpired regarding his care and how Mr. Marcus’ prostate cancer was not timely diagnosed.  It was even documented in Mr. Marcus’ medical record that during the meeting, the “events leading to the delayed diagnosis of prostate cancer” were discussed.  It is extremely rare for a delay in cancer diagnosis to be so plainly documented in a patient’s medical record.

In an even more rare occurrence, during this meeting, Mr. Marcus was provided with information to pursue a lawsuit against the hospital.  According to Mr. Marcus’ own medical record, he was advised about “potential compensation” by way of initiating a lawsuit against the hospital.  He was then provided with the paperwork to do just that.  This meeting was, in effect, an admission of liability.

Despite this meeting that occurred, and the clear failures by Mr. Marcus’ providers, the hospital still denied negligence once a lawsuit was ultimately filed.

Due to the status of the Defendant entity in this case, we were required to file this case in federal court.  As such, procedurally, we had to initiate the lawsuit by filing a Standard Form 95, which is used to present claims under the Federal Tort Claims Act.  The Form 95 details the allegations of malpractice against the Defendant and gives the Defendant an opportunity to respond to these claims.  In response to the Form 95 that was filed on behalf of Mr. Marcus, the Defendant made a settlement offer.  However, after discussions between the parties’ Counsel, it was apparent that there was a significant disparity between the parties’ valuations of the case.  At that time, negotiations shut down, and we filed a Complaint in federal court.

Per the rules in federal court, the parties involved in medical malpractice lawsuits must agree upon a form of Alternative Dispute Resolution (ADR) as part of the litigation process.  The three processes available to the parties through the court include mediation, early neutral evaluation, and arbitration.


After filing a Complaint in federal court, the parties agreed to enter into a mediation wherein the case was settled for a substantial amount.