Woldruff v. Banta

Filed 7/25/06 Woldruff v. Banta CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Reversed.

Cassel Malm Fagundes, Joseph H. Fagundes, Floyd W. Cranmore; Elliot, Snyder & Reid, Michael R. Snyder and William R. Moffitt for Defendants and Appellants.

Phillipi & Nutt and Brian C. Nutt for Plaintiffs and Respondents.

1. Introduction

In this medical malpractice action, defendants Craig Banta, M.D., and Beaver Medical Group (defendants) appeal from a judgment entered following a special jury verdict in favor of plaintiffs Joseph B. Woldruff and Deborah Woldruff (plaintiffs). At trial, plaintiffs claimed that Dr. Banta was negligent in his diagnosis and treatment of Mr. Woldruff, who had an enlarged prostate gland. Specifically, plaintiffs claim Dr. Banta was negligent in failing promptly to order a Prostate Specific Antigen test (PSA test) when screening Mr. Woldruff for prostate cancer and, in turn, failed to diagnose Mr. Woldruff with prostate cancer. As a consequence, Mr. Woldruff was not diagnosed with prostate cancer until after Mr. Woldruff changed healthcare providers and tests revealed Mr. Woldruff had a large malignant tumor on his prostate gland requiring a radical prostatectomy.

Defendants moved for a new trial on the ground the trial court had refused to give CACI No. 506, concerning alternative methods of diagnosis or treatment, and also rejected defendants' related special instruction Nos. 3 and 4. The trial court denied defendants' motion for new trial and entered judgment in favor of plaintiffs.

On appeal, defendants contend the trial court committed reversible error by not giving CACI No. 506 or defendants' special instruction Nos. 3 and 4. In addition, the trial court erred in denying defendants' motion for new trial.

We conclude the trial court should have given CACI No. 506 because there was expert opinion establishing that there were differing acceptable methods of diagnosing Mr. Woldruff for prostate cancer. The method Dr. Banta chose, which was in accordance with the United States Health Services Prevention Task Force guidelines and American Academy of Family Practice guidelines, did not recommend using a PSA test. We further conclude that the failure to give CACI No. 506 constitutes prejudicial error requiring reversal.

2. Factual and Procedural Background

In 1998 and 2000, Mr. Woldruff saw Dr. Banta, of Beaver Medical Group, for a physical examination. During these examinations, Dr. Banta took a medical history of Mr. Woldruff and performed a digital rectal examination to screen for possible prostate cancer and other maladies. At the time of the examinations, Mr. Woldruff was in his mid-forties and had an enlarged prostate gland. Although Mr. Woldruff's prostate was larger than normal, Dr. Banta found it benign based on its consistency, smoothness, and symmetry.

Mr. Woldruff told Dr. Banta during his 1998 examination that one of his uncles had recently died from prostate cancer and three other uncles were being treated for it. Mr. Woldruff therefore requested a PSA test. Dr. Banta told Mr. Woldruff he was too young, that an enlarged prostate came with age, that Mr. Woldruff did not need a PSA test, and that Dr. Banta would not order a PSA test until Mr. Woldruff was 50 years old. At the time, Mr. Woldruff was 43 years old. Dr. Banta diagnosed Mr. Woldruff as having benign prostatic hyperplasia (BPH), which indicated Mr. Woldruff had an enlarged prostate and no signs of prostate cancer based on the prostate's symmetry and consistency. There being no signs of prostate cancer, Dr. Banta did not order a PSA test. Dr. Banta believed PSA testing was controversial and not effective in early diagnosis of prostate cancer. The fact that Mr. Woldruff had an abnormally enlarged prostate was not in and of itself a sign of cancer.

During Mr. Woldruff's 2000 physical examination, Dr. Banta again conducted a digital rectal exam of Mr. Woldruff and did not find any symptoms or indication of prostate cancer. Mr. Woldruff's prostate was the same size and consistency as in the past. Therefore Dr. Banta diagnosed Mr. Woldruff again as having benign prostatic hyperplasia (BPH). There being no signs of prostate cancer, Dr. Banta did not order a PSA test.

In 2002, Mr. Woldruff changed healthcare providers. During his first physical examination at Kaiser in 2002, the physician performed a rectal examination and PSA test. A biopsy was then performed, which came back positive. Mr. Woldruff underwent a prostatectomy, rendering Mr. Woldruff impotent.

Mr. Woldruff and his wife, Deborah Woldruff, filed a medical malpractice complaint alleging that, while Mr. Woldruff was under the care of Dr. Banta, Dr. Banta breached his duty of care by failing to consider more serious possibilities concerning Mr. Woldruff's enlarged prostate gland; by failing to perform a PSA test, biopsy, or other test to rule out cancer when the condition originally appeared; and by failing to treat promptly Mr. Woldruff for cancer. Dr. Banta failed to detect Mr. Woldruff's cancerous tumor, or pre-cancerous state, at an earlier date and delayed treatment of the cancer. Plaintiffs' complaint also contains a loss of consortium claim by Mrs. Woldruff.

At trial, the parties presented medical expert testimony in support of their positions. Plaintiffs' experts included family practice expert, Dr. Leo, and urology expert, Dr. Taylor. Dr. Leo testified Mr. Woldruff had a severe prostate enlargement, which was not normal in men in their forties and therefore this should have raised concern. For a patient in his forties, the size of the prostate mattered in conducting a prostate gland digital rectal examination. Dr. Leo acknowledged that Mr. Woldruff's abnormally enlarged prostate in and of itself did not indicate Mr. Woldruff had prostate cancer but it called for further screening, such as a PSA test. Dr. Leo concluded the guidelines relied on by Dr. Banta in screening Mr. Woldruff did not apply because Mr. Woldruff had an enlarged prostate. They only applied to patients without symptoms and with a normal physical examination. Dr. Leo concluded Dr. Banta breached the standard of care by failing to order a PSA test based on Mr. Woldruff's enlarged prostate.

Dr. Taylor agreed PSA tests were required in 1998 and 2000 based on Dr. Banta's findings. According to Dr. Taylor, a complete prostate exam should include both a digital rectal exam and PSA test. Dr. Taylor acknowledged that PSA testing does not identify cancer but identifies patients who are at higher risk. Dr. Taylor explained that the United States Health Services Prevention Task Force guidelines do not recommend PSA screening because the morbidity and mortality of PSA screening has not been proven. Dr. Taylor concluded the guidelines did not apply to Mr. Woldruff because Mr. Woldruff's prostate was abnormally enlarged. Dr. Taylor acknowledged the guidelines did not recommend PSA screening under any circumstances but Dr. Taylor believed they were out of line with the majority of organizations and therefore do not define the standard of care. In order for Dr. Banta to have properly screened Mr. Woldruff for prostate cancer and to have made an accurate diagnosis in 1998 and 2000, he would have had to have done a PSA test, as well as a rectal exam. Without a PSA test, the prostate exam was incomplete.

Defendants' experts included family practice expert, Dr. Johnson, and urology expert, Dr. Ching. Dr. Johnson testified that the fact Mr. Woldruff had an enlarged prostate was not a suspicious finding requiring a PSA test. An enlarged prostate without malignant features does not indicate an increased risk of cancer. Under such circumstances a PSA test need not be given. A BPH diagnosis or enlarged prostate is not uncommon in a man of Mr. Woldruff's age. A BPH diagnosis is proper when, based on a digital rectal exam, there are findings that a patient's prostate is symmetrical, smooth, and enlarged without malignant features, such as nodules.

According to Dr. Johnson, debate and controversy over the benefits of PSA testing continued to exist at the time of trial, although the PSA test recently has become fairly widely accepted. The American Urology Association recommends offering PSA testing beginning when a patient is 50. Due to the controversy over PSA testing, Dr. Banta was not negligent in simply following the United States Health Services Prevention Task Force guidelines which, in 1998 and 2000, did not recommend PSA testing for Mr. Woldruff's condition.

Dr. Ching agreed PSA testing was controversial. There is debate among experts in the field as to PSA screening. In 1998 and 2000, the American Academy of Family Practitioners did not recommend PSA screening. BPH is common. It is a benign growth of the prostate which occurs as men get older. An enlarged prostate does not necessarily require anything further be done if there are no other symptoms. There is no link between someone who has an enlarged prostate or BPH and prostate cancer. It does not put the patient at risk and therefore warrant additional screening.

According to Dr. Ching, there was nothing in Mr. Woldruff's records, including his age and a finding of an enlarged prostate, that required Dr. Banta, in exercising the standard of care, to perform a PSA test. At the time in question, there were guidelines recommending PSA testing, but there were also other guidelines, such as those of the American Academy of Family Practitioners, that did not recommend PSA screening. The American Academy of Family Practitioners did not require PSA testing under the circumstances in Mr. Woldruff's case, in which he was asymptomatic.

Dr. Ching opined that a PSA test was not warranted based on Dr. Banta's findings in 1998 and 2000. Adherence by a family practitioner to the United States Health Services Prevention Task Force guidelines implies compliance with the standard of care. Unless a family practitioner finds a nodule on a patient's prostate, the physician cannot be criticized for not performing a PSA test.

Following the experts' testimony, the trial court heard argument on defendants' request for CACI No. 506 on alternative methods of care. The trial court rejected the instruction was inapplicable because the issue was simply whether Dr. Banta acted within the standard of care in failing to provide Mr. Woldruff with prostate cancer treatment, including a PSA test. The court concluded there was no evidence of alternative methods of diagnosis or treatment supporting the instruction.

The jury returned a special verdict in favor of plaintiffs and against defendants. Defendants moved for a new trial on the grounds the trial court failed to give CACI No. 506 and defendants' special instruction Nos. 3 and 4. The trial court denied the motion.

3. Instructional Error

Defendants contend the trial court erred in refusing to instruct the jury with CACI No. 506, entitled â€