Prostate Cancer and PSA Follow-Up: Oregon Malpractice

A prostate-specific antigen (PSA) test is a blood test used in screening for prostate cancer. When a result comes back high, what happens next matters. This article concerns situations where an elevated or rising PSA is noted but never acted on: the patient is not told, no repeat test is ordered, or no referral is made, and the cancer is found later. It explains how that kind of follow-up failure is viewed under Oregon medical malpractice law.

What the PSA test can and cannot tell you

PSA is a protein made by cells in the prostate gland, both normal cells and cancer cells. A higher PSA level raises the chance that cancer is present, but there is no set number that proves a man does or does not have prostate cancer.¹ Several benign conditions can also push PSA up. An infection or inflammation of the prostate, a recent prostate biopsy, vigorous cycling, and even ejaculation can raise PSA for a time.² Because of this, a single high result does not by itself diagnose cancer.

PSA screening is genuinely debated

It is important to be fair about the science. Whether to screen with PSA at all is a real medical debate. The U.S. Preventive Services Task Force gives PSA screening a "C" grade for men ages 55 to 69, meaning the choice to screen should be an individual one made with a doctor. For men 70 and older, the Task Force recommends against routine PSA screening. The Task Force also describes real downsides of screening, including false-positive results that require additional testing and possible prostate biopsy, and the diagnosis of some cancers that would never have caused symptoms during a man's lifetime.³

So this article does not focus on whether a man was screened in the first place, a decision the Task Force leaves to the individual for men ages 55 to 69. Its focus is what happened after a test was actually done and came back abnormal.

When following up on a result becomes a duty

After an abnormal screening PSA, the doctor may recommend another PSA test in 6 to 8 weeks to confirm the original finding. If a repeat PSA is still elevated, the doctor may recommend continued observation with repeat PSA tests and digital rectal exams to watch for changes over time. If the PSA keeps rising, especially if it rises quickly, or an exam finds a lump, additional tests such as blood- or urine-based tests or imaging such as MRI may be recommended, or the doctor may recommend a prostate biopsy without further testing.⁴

A biopsy is the only way to know for sure whether prostate cancer is present.⁵ This article calls that sequence — notice the result, repeat or investigate it, and refer for biopsy when warranted — the follow-up chain.

How PSA mismanagement can delay a diagnosis

Several gaps can turn an abnormal result into a late diagnosis:

• Failure to act on a rising or elevated PSA. The number is in the chart, but no repeat test, imaging, or referral follows.
• Failure to refer for biopsy. Results keep climbing, yet the patient is never sent to a urologist to confirm what is going on.
• Lost-to-follow-up results. A result comes back after a visit, is never communicated to the patient, and no one closes the loop.

Prostate cancers differ: some are slow-growing, while others are fast-growing and potentially lethal.² When follow-up stalls, a cancer may be found later than it otherwise would have been.

Oregon's medical malpractice standard of care

Oregon law asks whether the provider met the professional standard of care. Under ORS 677.095, a physician licensed by the Oregon Medical Board has the duty to use "that degree of care, skill and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the community of the physician or a similar community."⁶ The question is whether a reasonably careful physician in similar circumstances would have handled the result differently.

In a PSA case, the review would center on what the results showed, when they came in, what the provider knew, and whether the response matched what ordinarily careful physicians do in the same or similar circumstances.

Causation is also part of the analysis. In Smith v. Providence Health & Services, 361 Or 456 (2017), a case involving a missed stroke diagnosis, the Oregon Supreme Court concluded "that a loss of a substantial chance of a better medical outcome can be a cognizable injury in a common-law claim of medical malpractice in Oregon." The court explained that "when the lost chance is the injury in a medical malpractice action, the plaintiff still bears the burden to prove that, more likely than not, the defendant's negligence caused the plaintiff to lose the chance of a favorable medical outcome."⁷

Filing deadlines in Oregon

Oregon sets firm time limits on medical malpractice claims. Under ORS 12.110(4), an action must be started within two years from the date the injury is first discovered, or reasonably should have been discovered.⁸ In Gaston v. Parsons, 318 Or 247 (1994), the Oregon Supreme Court held that "injury," as used in ORS 12.110(4), "consists of three elements: (1) harm; (2) causation; and (3) tortious conduct." The court held that the period "begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists."⁹ This "discovery rule" matters in cancer cases, because a patient may not learn that a result was mishandled until the diagnosis finally comes.

There is also an outer limit. The same subsection provides that, "notwithstanding the provisions of ORS 12.160, every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based or, if there has been no action commenced within five years because of fraud, deceit or misleading representation, then within two years from the date such fraud, deceit or misleading representation is discovered or in the exercise of reasonable care should have been discovered."⁸ Because these deadlines can be complex, and because the clock may already be running, the timing of any specific situation is something to review carefully with an Oregon attorney.

Talking to an Oregon attorney

If you believe a rising or elevated PSA was ignored, or that abnormal results were never followed up, an Oregon attorney can review the records and the timeline. This article is meant to explain how Oregon law approaches these cases, not to tell you whether you have a claim. Every situation depends on its own facts.

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at 971-317-6436 for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.

Footnotes

1. Screening Tests for Prostate Cancer. American Cancer Society. https://www.cancer.org/cancer/types/prostate-cancer/detection-diagnosis-staging/tests.html ↩

2. Prostate-Specific Antigen (PSA) Test. National Cancer Institute. https://www.cancer.gov/types/prostate/psa-fact-sheet ↩ ↩²

3. Prostate Cancer: Screening. U.S. Preventive Services Task Force. https://www.uspreventiveservicestaskforce.org/uspstf/recommendation/prostate-cancer-screening ↩

4. Prostate-Specific Antigen (PSA) Test. National Cancer Institute. https://www.cancer.gov/types/prostate/psa-fact-sheet ↩

5. Screening Tests for Prostate Cancer. American Cancer Society. https://www.cancer.org/cancer/types/prostate-cancer/detection-diagnosis-staging/tests.html ↩

6. ORS 677.095 - Degree of care and skill required. Oregon Public Law. https://oregon.public.law/statutes/ors_677.095 ↩

7. Smith v. Providence Health & Services, 361 Or 456 (2017). Oregon Judicial Department. https://ojd.contentdm.oclc.org/digital/collection/p17027coll3/id/5926 ↩

8. ORS 12.110 - Actions for certain injuries to person not arising on contract. Oregon Public Law. https://oregon.public.law/statutes/ors_12.110 ↩ ↩²

9. Gaston v. Parsons, 318 Or 247 (1994). Caselaw Access Project. https://static.case.law/or/318/cases/0247-01.json ↩