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 knew 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.
A simple CT scan
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 (CAC) 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 coronary 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.
“John, you’re at risk for a heart attack. This is serious. Your CAC 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. He died on the spot.
His distraught widow went 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.
“I think we may have a case,” the attorney told the widow.
A few months after Mr. Q’s death, Mr. Z was stunned when served with papers alleging malpractice. The attorney for Mr. Q’s widow filed a lawsuit claiming 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.
Mr. Z’s defense attorney advised him 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 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 take this to trial if that’s what they want to do.”
So, a year later, Mr. Z found himself in court. Initial depositions had been conducted and discovery was complete; the case against him was ready for trial. Just before jury selection, 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.”