Case: Inadequate performance of radical prostatectomy

Background

K was born on 23 December 1947. He had a relatively uneventful medical history until the events which gave rise to these proceedings.

K was admitted to the Princess Alexandra Hospital, Harlow on 19 November 2003 for a primary repair of a hernia. Postoperatively, K went into urinary retention. K was, therefore, catheterized. K was discharged with the catheter on 21 November 2003.

On 16 December 2003 (by which time the catheter had been removed), K attended an outpatient appointment at the Princess Alexandra Hospital and underwent an ultrasound of the prostate and a PSA (prostate specific antigen) measurement. The PSA was subsequently reported to be elevated at 23.09 ng/mL. The ‘normal’ level in a man under 60 years of age is 3.0 ng/mL.

K was referred to Mr P, a consultant urologist, whom he saw on 16 February 2004. Mr P noted that K had been suffering with gradually worsening lower urinary tract symptoms since his hernia operation. Clinical examination was unremarkable apart from a moderate benign prostate. A moderate bulge of prostate into the bladder was noted on the ultrasound scan. Mr P recommended that K undergo a transurethral resection of prostate (a TURP). He also advised K to undergo another PSA test.

Mr P failed to arrange a repeat PSA test.

On 15 March 2004, Mr P wrote to K's GP, requesting that he commence K on Dutasteride until his admission for the TURP. Dutasteride, as well as reducing prostatic bulk, also reduces PSA levels. Notwithstanding that Mr P's secretary drew it to his attention that K had not undergone a repeat PSA, Mr P did not arrange for a further PSA reading to be taken.

K's hernia recurred and he underwent a further repair procedure on 15 September 2004. He was catheterized interoperatively as a prophylaxis against urinary retention. The following day K successfully underwent a TWOC (trial without catheter). K was discharged on 17 September.

On 7 March, K was reviewed by a specialist registrar to Mr P. It was noted K's PSA was elevated at 9.66 ng/mL. The registrar subsequently recommended that K have an urgent biopsy of his prostate.

The biopsy took place on 20 April 2005. It was reported on 29 April 2005 that the biopsy indicated a Gleason score 7 carcinoma. K underwent a bone scan on 23 May 2005 which was negative for bone metastasis. On 17 June 2005, K underwent an MRI scan which suggested organ-confined tumour. There was no evidence of tumour spread to the lymph nodes and no evidence of bony metastasis.

K was seen in the urology clinic on 22 July 2005 and was advised to undergo a radical prostatectomy.

On 3 October 2005, K underwent a radical prostatectomy to cure his prostate cancer at the Princess Alexandra Hospital. The primary objective of this procedure was to remove the prostate gland and seminal vesicles entirely and thus eliminate organ-confined, non-metastatic prostate cancer. By removing the great bulk of benign prostatic enlargement, including the ‘huge median lobe’, the procedure would also have relieved the mechanical obstruction caused by the prostate tissue at the bladder outlet, thus relieving the Claimant's lower urinary tract symptoms.

Postoperative examination of the excised prostate confirmed K's cancer had remained organ-confined. K was discharged on 11 October 2005.

K was reviewed on 24 November 2005. It was noted that he was voiding with a weak flow. In view of K's ongoing urinary symptoms, on 7 December 2005 a cystoscopy and dilation of the anastomic area was performed. A urethral structure at the site of the radical prostatectomy was identified and dilated. K was discharged the following day.

A further PSA test on 29 November 2005 showed K had a raised PSA at 1.91 ng/mL (normal range post-radical prostatectomy <0.2 ng/mL). He was referred to Addenbrookes Hospital for further oncological treatment. In the circumstances of a persistently elevated PSA post-radical prostatectomy, that residual prostate tissue could only relate to local residual/recurrent cancer at the site of that radical surgery or progressive metastatic prostate cancer present but not detectable at the time of that radical surgery. K was advised that he had an incurable metastatic disease and his prognosis was 3–5 years. K was commenced on palliative hormone replacement therapy in order to eliminate testosterone production and effectively undertake a medical castration.

K underwent a cystourethroscopy and bladder neck incision on 24 March 2006.

K continued to suffer poor urinary function and flow and, therefore, underwent a flexible cystoscopy at Addenbrookes Hospital on 12 December 2006. This confirmed the presence of ‘huge median lobe’ of prostate tissue which, by acting like a ‘ball-valve’ at the bladder outlet caused significant mechanical obstruction and gave rise to K's related symptoms of obstruction. A CT scan confirmed that the Claimant's ‘radical’ prostatectomy had resulted in the failure to remove all prostatic tissue.

At a multidisciplinary team meeting on 8 January 2007, K's case was discussed by a team of urology and oncology experts. It was confirmed that K had not in fact had a radical prostatectomy on 3 October 2005. He had actually had an incomplete prostatectomy.

K was advised to undergo endoscopic resection of the residual median lobe or prostate, with the understanding that this TURP would be inevitably incomplete in removing the entire ‘huge median lobe’. The TURP was performed on 16 March 2007. This was performed satisfactorily, and K's bladder overflow obstruction was relieved and the related urinary symptoms resolved.

However, K's PSA continued to rise. It was considered that this was most likely due to the regeneration of prostatic tissue at the site of the TURP. However, it was possible that there were microscopic areas of prostate cancer in the residual and regenerating prostatic tissue. K was, therefore, offered, and underwent, a course of radiotherapy as a precautionary measure.

Allegations of negligence

After making a complaint against the hospital in September 2006, and an unsatisfactory meeting at the hospital in December 2006, K decided to instruct solicitors in January 2007.

The Claimant obtained expert opinion from a consultant urologist. The expert urologist was critical of the unacceptable delay in diagnosing K's prostate cancer, and of the inadequate radical prostatectomy. In his opinion, it was unlikely, that the year's delay in diagnosing the prostate cancer affected either the treatment K required or his prognosis. However, the inadequate performance of the radical prostatectomy caused:

the Claimant to exhibit elevated PSA levels post-‘radical’ prostatectomy;

The expert oncologist concurred with the views of the urologist in relation to the delay in diagnosis of the prostate cancer.

Settlement

Following the service of a letter of claim on 17 March 2008, and a claim form on 6 May 2008, an agreement was reached between the parties for an extension on time for service of a response, the Particulars of Claim, the expert report, the schedule of loss and the notice of funding.

The Defendant served their letter of response on 22 September 2008 denying all allegations of negligence. In particular, it was alleged that the initial surgery was conducted in the standard manner, and further denied that the removal of the entire prostate would have resulted in K avoiding all urinary symptoms, being able to return to work by January 2006, and avoided need for further treatment.

Following further discussions, and a further agreement for extension of time, the Defendant served a supplemental letter of response on 14 January 2009. It admitted the prostatectomy was inappropriately performed on 3 October 2005, and had the surgery been performed appropriately, K would have avoided the rise of PSA, that the procedure would have been curative of both the cancer and the urinary symptoms and that K would have probably returned to work by January 2006. The Defendant also made a Part 36 offer in the sum of £75,000.

K rejected the Defendant's offer and made a Part 36 offer on 21 January 2009 in the sum of £120,000 less the CRU repayment of £8,867.65.

Following further negotiations between the parties solicitors, and further Part 36 offers and counter-offers, the claim settled in the sum of £112,500 less the CRU repayment.

Losses

The claim was settled on a global basis. Quantum was difficult.

The Claim was pleaded with a significant future loss of earnings claim (nearly £40,000) on the basis that the Claimant had been out of work for 2.5 years, and had had to accept a job at Addenbrookes at a lower salary than had he found a job following his redundancy (unrelated to the Claim) in October 2005. However, this was a difficult argument – first, the Defendant could have argued that, in fact, in the current economic climate, it was probable that the Claimant would have been made redundant in such a job; and second, the Defendant could have argued that there was nothing now stopping the Claimant obtaining a higher paid job.

The Claim was also pleaded with a significant future loss of pension claim, as, in the belief that he had incurable metastatic cancer, the Claimant had transferred his pension scheme benefits out of the scheme to supplement the income he was receiving at that time. In February 2008, K's financial advisor calculated that this represented a £44,721 loss. However, shortly afterwards, the economy crashed, and the value of pension funds plummeted. Thus, there was a significant risk that K would recover very little or nothing in respect of this head of loss as, in view of K's age, it may actually have been fortuitous that he withdrew the funds when he did.

Taking the above into account, the Claimant's solicitors apportioned the settlement approximately as follows: General Damages

£30,000