Mr. Z, 48, had been a physician assistant in the same large clinic for more than 10 years. One reason he stayed was the opportunity to learn new technology.

He was especially pleased to road-test new software for the clinic’s CT scanner by analyzing images generated from volunteers. The subjects were aware that the scans were intended merely to provide images for Mr. Z. The volunteers were not clinic patients and did not expect to be given the test results.

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One of the volunteers was Mr. Q, a 52-year-old man who worked in the clinic’s billing department. As Mr. Z was studying Mr. Q’s scan, he noticed that the coronary artery calcification score was abnormally high. Alarmed, he went over to Mr. Q’s cubicle.

“Hey, John,” said Mr. Z. “I was looking over your CT scan, and it’s not normal. Your arteries are calcified. You need to make an appointment with a cardiologist right away.”

“Okay,” Mr. Q said. “Thanks for telling me.”

Mr. Z didn’t see Mr. Q again until the two men passed each other in the hall several days later.

“Did you make an appointment with a cardiologist yet?” Mr. Z inquired.

“Not yet.”

“John, you’re at risk for a heart attack. This is serious. Your score is high enough that you need to see a cardiologist now.”

“Okay, okay. I appreciate your concern,” Mr. Q responded, and a few days later he scheduled an appointment with a cardiologist. Unfortunately, before he could keep that appointment, Mr. Q suffered an acute MI while playing basketball and died on the spot.

His distraught widow made an appointment to see a plaintiffs’ attorney. The attorney tried to obtain Mr. Q’s medical records from the clinic, only to find that no such records existed. The lawyer then consulted a physician, who told him that the results of a CT scan should be part of a patient’s chart in his health-care provider’s files and that the clinician who evaluated the CT scan would note any abnormal findings.

“We may have a case,” the attorney told the widow.

Mr. Z’s devastation on hearing the news of Mr. Q’s death turned to shock when a few months later he was served with papers informing him that the widow was suing him for malpractice. The lawsuit alleged that Mr. Z didn’t treat Mr. Q properly, didn’t create a medical file for him, didn’t note the CT scan results in that file, and didn’t properly follow up—all ultimately resulting in an untimely death for Mr. Q.

Mr. Z called his insurance company, which assigned him a defense attorney. That lawyer advised Mr. Z that he had a strong case and should not consider settling.

“There’s one big piece missing from this case,” she explained. “That’s the patient-clinician relationship. You really didn’t have one with Mr. Q, and if there’s no relationship, then there’s no duty on your part and you can’t be guilty of anything. Let them try to take this to trial if that’s what they want to do.”

And so, a year later, Mr. Z found himself sitting next to his attorney in a courtroom. The initial depositions had been conducted, the discovery process was completed, and the case was now ready for trial. Just before the jury was to be selected, however, Mr. Z’s attorney stood up and handed a large document to the plaintiffs and the judge.

“Your Honor, I am submitting a motion for summary judgment,” she announced. “There is no issue of fact here that needs to go to the jury. It’s simply a matter of law. My client owed no duty here because Mr. Q was not his patient. Therefore, the case must be dismissed.”

The judge adjourned the proceedings and took a few weeks to consider the matter, reviewing written arguments from both sides. Then he dismissed the case.

“It is clear from the pleadings, depositions, and affidavits that Mr. Q was not Mr. Z’s patient,” the judge ruled. “Neither Mr. Q nor any clinician caring for him sought out Mr. Z to render medical advice. Mr. Z was not tasked with evaluating Mr. Q’s health. His assignment was to evaluate the accuracy and methodology associated with the CT scanner and its software.

“But Mr. Z went beyond any duty he actually owed to Mr. Q when he voluntarily warned Mr. Q of the potential danger that the scan suggested. He then gave Mr. Q appropriate advice—twice—urging him to see a cardiologist right away. The plaintiff has failed to establish any legal duty that Mr. Z owed to Mr. Q, arising from that advice.”

Moreover, the judge added, the case deserved to be dismissed because Mrs. Q and her lawyer failed to establish how Mr. Z’s actions, or inactions, caused Mr. Q’s death.

Legal background

Summary judgment allows a judge to render a decision without a full trial. It requires two preconditions:

• There are no disputed issues of fact that would require a jury to decide.
• When the law is applied to those undisputed facts, one party is clearly entitled to prevail.

In this case, both sides agreed that Mr. Q was not a patient of Mr. Z and that he did not come to Mr. Z seeking medical advice. Mr. Q underwent the CT scan only to test the equipment, with no expectations of getting medical advice or treatment. Since no patient-clinician relationship existed, Mr. Z had no duty to fulfill.

In unusual cases, a patient-clinician relationship can sometimes be established if a person asks for medical advice or a patient’s clinician consults with a second health-care provider. However, neither scenario was evident here.

Protecting yourself

One of the basic elements of any malpractice lawsuit is establishing the relationship between patient and provider and the duty of care that the relationship creates.

Mr. Z did nothing wrong. Whether Mr. Q was his patient or not, when the PA became aware of the potentially dangerous calcification, he warned Mr. Q and twice clearly told him to seek help. Even if Mr. Q had been Mr. Z’s patient, the legal outcome would have been the same. Even if Mr. Z had had a duty to treat, placed the scan report in the chart, made a notation about the need for a cardiologist visit, and told Mr. Q to make an appointment, Mr. Q still would have died because he ignored that advice. No amount of clinical documentation would have changed that, and the consequence would have been identical: tragic, but not Mr. Z’s fault. 

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.