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John Houghton, and Evelyn Houghton v. Nadiv Shapira, M.D., and Christiana Care Health Services, Inc., Civil Action No. N11C-06-092 MJB (Del. Super.), affirmed by Shapira v. Christiana Care Health Services, Inc., 99 A.3d 217 (Del. Supr. 2014)

On August 7, 2014, the Delaware Supreme Court upheld a jury verdict with interest totaling over $5.5 million in favor of our medical malpractice clients.

Background

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In 1999, the Institute of Medicine (IOM) released a landmark report, To Err is Human, estimating that at least 44,000, and as many as 98,000, patients die in hospitals each year as a result of preventable medical errors. The IOM is an independent nonprofit organization that provides unbiased information to the government and the public.

The IOM defined an error as “the failure of a planned action to be completed as intended (i.e., an error of execution) or the use of a wrong plan to achieve an aim (i.e., an error of planning).” These errors occurred at every phase of the medical system, including preventive care, diagnosis, treatment, and follow-up. The Report concluded the most likely place for these errors to occur were in the intensive care units, operating rooms, and emergency departments.

If the rate of preventable medical errors has continued at this pace since the 1999 IOM study, there have been another 500,000 to 1.1 million preventable deaths. It is noteworthy to mention that the IOM Report is limited to preventable medical errors in hospitals and does not include errors outside hospitals, such as in doctor’s offices, clinics, outpatient surgery centers, and nursing homes.

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The failure of a physician to timely diagnose cancer is a problem. We are told that early detection of a cancer leads to a better outcome, and the longer the delay in diagnosis of a cancer reduces the likelihood the cancer can be cured. For the last 20 years, physicians have recommended a prostate-specific antigen (PSA) test every year or two to detect prostate cancer early.

On May 22, 2012, the U.S. Preventive Services Task Force (USPSTF), a panel of physicians, Ph.D’s, and nurses, released a recommendation against PSA screening tests for prostate cancer. The Co-Chair of the USPSTF made the following statement:

“Prostate cancer is a serious health problem that affects thousands of men and their families. But before getting a PSA test, all men deserve to know what the science tells us about PSA screening: there is a very small potential benefit and significant potential harms. We encourage clinicians to consider this evidence and not screen their patients with a PSA test unless the individual being screened understands what is known about PSA screening and makes the personal decision that even a small possibility of benefit outweighs the known risk of harms.”