A patient ignores his urologist’s instructions, then tries to blame the PA who referred him.

Ms. F, 48, was a physician assistant in a busy family practice clinic near a large city in the Northeast. While she enjoyed fielding the wide variety of problems she faced each day, she sometimes felt overwhelmed and undersupported. It was hard to know the parameters of her duties, and her supervising physician seemed unavailable at times. Such was the case with a vasectomy patient who came under her care.

The patient was 35 years old. He and his wife had decided their family was complete, and they did not want to have more children.

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During a routine checkup, he asked about referral for a vasectomy. Ms. F was unsure whom her supervising physician would recommend. Since he was not available to ask, she gave the patient the name of a urologist she knew could do the procedure in his office.

In his post-op instructions, the urologist warned the man not to abandon contraception right away. The vasectomy would not be effective until sperm stored in the seminal vesicles and prostate were depleted, he explained, and that had to be confirmed by sperm counts at three and six months.

The urologist illustrated this prognosis with a printed diagram and written instructions. Then he wrote a prescription for two sperm counts.

But the patient ignored the warnings. He had unprotected sex with his wife for the next six months, did not schedule a follow-up visit, and did not get sperm counts to check for residual sperm because (it later emerged) he thought his insurance would not pay for them.

During this time, he saw Ms. F on three occasions for other problems, but he did not mention that he had had the vasectomy or that he and his wife were having unprotected sex. Instead, Ms. F found out about the surgery when she got an angry phone call from the patient’s pregnant wife.

“What’s the use of having a doctor if she can’t stop your getting pregnant?” the woman demanded, leaving Ms. F rather puzzled. “Why didn’t you tell us about the sperm counts?”

Ms. F was even more baffled than before. But after the wife filled her in, Ms. F still could not see what she had to do with the pregnancy.

“Well, maybe my lawyer can explain it to you,” the woman said abruptly and hung up the phone.

Later that week, court papers arrived accusing Ms. F of “medical negligence” and of causing a “wrongful pregnancy.”When the case reached the deposition stage, Ms. F’s defense lawyer questioned the wife first, paying particular attention to the fact that she had never seen Ms. F as a patient. Based on the testimony he elicited, the defense lawyer thought he might be able to get the case dismissed. Ms. F was all for that, and after the insurance company authorized the $15,000 it would cost to prepare the documents, the lawyer drew up his motion to dismiss.

At the subsequent hearing on the motion, the defense lawyer argued that the patient’s wife and Ms. F had no provider-patient relationship. Therefore the woman could not bring a lawsuit against her based on medical negligence.

The plaintiff’s lawyer, appearing for the patient’s wife, argued that it was “outrageous” that Ms. F would “get away with this” if the case was thrown out of court. But after considering the lawyers’ presentations and reading their legal briefs, the judge ruled in favor of the defense.

The case was dismissed, and an appeals court affirmed the judge’s decision.

Legal background

A plaintiff’s lawyer who wishes to sue for medical negligence must first establish a provider-patient relationship between the parties. This case represents extreme circumstances.

The issue more typically arises when a provider gives advice but does not actually see the patient. For example, an emergency department PA calls an attending physician for advice on how to manage a certain patient.

The attending in this situation usually gives general advice on the condition and tailors details to the specific individual. Courts have been split as to whether the attending physician had a provider-patient relationship with that patient, and whether the patient can sue him for malpractice if things go wrong.

When PAs consult their supervising physicians, the physicians are automatically on the hook because of licensing laws. But when PAs call on doctors other than their supervising physicians, the same uncertainties apply.

“Wrongful pregnancy” is a recent invention of a litigation-hungry legal system. Previously, courts considered the blessing of parenthood to outweigh the burden of an unplanned pregnancy permitted by medical negligence. Now, courts have modified their stance, allowing damages to be assessed for the cost of pregnancy and child-rearing. Since the average cost of raising a child these days is around $300,000, the award can be substantial.

Protecting yourself

Patients who forget to tell their physicians about specialist consultations are surprisingly common. For this reason, it’s important to remind yourself about a referral by making a notation in the chart. The notation need only be short and functional, such as “ref. Dr. X vasectomy.”

Although the specialist’s report should be filed, assuming it will be in the chart is not enough. Processing and postal delays can result in a patient’s reaching your office before the specialist’s letter does. In the case presented, the absence of a referral notation in the chart and of the specialist’s letter in the file combined with a forgetful patient to leave Ms. F in the dark.

The wider issue of looking after patients who are returning from specialty care—especially after operations or other procedures—involves several risk-management considerations. While most specialists look after their own postoperative patients, there is an increasing trend to discharge patients early to the care of their primary-care providers (PCPs).

Providers not familiar with specific postoperative needs should ask the specialist for information, such as a patient education booklet or a set of written orders. Overall, if the PCP is willing to provide postoperative care, this arrangement can work as long as the specialist is readily available for questions and to take care of problems that may develop.

On the first follow-up visit with a returning patient, it is prudent to call the specialist’s office and ask the office nurse what type of problems to look for. Because they already know the patient, PCPs are in a good position to recommend nutrition and activity levels that best suit the individual situation as recovery progresses.