A 15-year retrospective on a shared decision-making encounter, a lawsuit, and not winning

I didn’t see any news coverage of Dr. Dan Merenstein’s article in JAMA Internal Medicine last week, “PSA Screening — I Finally Won!” Maybe there was some reporting but I missed it.

But if there wasn’t any news coverage, maybe that’s understandable.  It was “just” a perspective piece.  It’s based on old news – a followup to a 1999 incident when Merenstein, as a third-year resident, “saw a well-educated 50-plus individual for a full physical and discussed the pluses and minuses of checking his PSA. He declined and I documented such. Unfortunately, the man was diagnosed as having advanced prostate cancer a few years later. He sued my residency and me and won the maximum amount.”

Merenstein wrote about the incident in the Journal of the American Medical Association in 2004.  His piece,Winners and Losers,” began, “There are many losers in this story.”

So he began his new article:

“I must have won. That is what everyone tells me. At the beginning there were a few telephone calls, followed by e-mails, and now every talk I give someone brings up how happy I must feel for winning. What I purportedly won was the new recommendations against routine checking for prostate-specific antigen (PSA). The new recommendations acknowledge the limitations of PSA after years of heated debate. I had written an essay about our malpractice system and evidence-based medicine (EBM) after being sued, but the take-home point for many was that I did not order a PSA test after discussing the options with a patient. The new recommendations are consistent with how I practiced. I “won.”

Merenstein, now the Director of Research Programs in the Department of Family Medicine at Georgetown University Medical Center, concludes that only the plaintiff’s lawyer won.  He writes:

“The man with prostate cancer died…Practitioners have not won…Patients have not won…Evidence-based medicine has not won…Society is not winning.”

He itemizes his reasons, among them:

  • “We still do not have a better test to diagnose the sixth leading cause of cancer death in men.  Physicians practicing evidence-based medicine have no better test to offer a man interested in screening for prostate cancer than I did 15 years ago.”
  • “Physicians have nothing better to offer and not enough time to discuss what goes against the simplistic message that early detection is always best.”
  • “Data and guidelines are still being attacked.”
  • “Recently there have been some similar questions about the validity of mammography. It reminds me of the same debates we have had about PSA screening. … Discussing with a 40-year-old women the pluses and minuses of mammography is as difficult as the PSA discussion because of the recent recommendations and data. The public debate, however, is the same; one is either for mammograms or against them. We still believe that early diagnosis of breast and prostate cancer is beneficial, but the evidence for PSA and mammography screening has not shown that to be true.”

And so, he concludes his thoughtful review:

“I appreciate the calls and the congratulations, but for some reason I do not feel like a winner.”

On the Daily Show last week, Jon Stewart said, “Historical context:  It’s why old people are sad.”   Merenstein’s story is sad, and it’s still newsworthy.


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Comments (4)

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Tazia K. Stagg

November 12, 2014 at 1:05 pm

I know that case shaped practice; I heard of doctors who decided how to treat patients based on that result rather than what was best for patients. Undoubtedly some still do. I wish a class action suit for harms resulting from inappropriate screening were feasible, to counterbalance the perceived legal threat.

I wonder about legal precedents for appropriate preventive services, where the lawyers’ interests would align with patients’ and cases would have the theoretical potential to motivate practice improvement.