Mr. W, 38, was referred to Dr. R, a practicing urologist of nearly 30 years. The patient, who had learning disabilities, had three young children with various birth defects. Mr. W had been advised to get a vasectomy due to the high risk that any other child he fathered would also have birth defects.

Dr. R described the procedure to the couple, made sure that they understood that this was a permanent decision, and asked whether they had any questions. Then he had them schedule an appointment for the procedure.

An outpatient procedure

Three weeks later the patient returned, unaccompanied, for the outpatient procedure—a no-scalpel vasectomy—which went smoothly and uneventfully. Afterwards, Dr. R gave Mr. W papers explaining the need to return at least twice for sperm tests, advising that until the tests were negative he should continue to use birth control to avoid any unwanted pregnancy.

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Dr. R also verbally instructed the patient about this, as well as telling him about the healing process and to be aware of signs of infection. The office staff scheduled a follow-up appointment, and Mr. W went home. Over the next eight weeks, Mr. W returned twice for sperm-count tests.

When the second test showed the continued presence of active sperm, Dr. R had his office call Mr. W to come in for further testing. The office manager spoke to Mr. W on the phone and conveyed the message, but the patient did not make an appointment. Over the next few weeks, the office manager called twice more and Dr. R also called, leaving messages on Mr. W’s answering machine. He did not respond. The calls, messages, and lack of response were noted in the patient’s file.

Almost two years later, Dr. R was served with papers notifying him that Mr. W was suing him for malpractice. The papers stated that Mr. W’s wife became pregnant after the vasectomy and that, despite the procedure, she had given birth to a baby boy with birth defects. Mr. W claimed that the operation was improperly performed and that he was never notified that active sperm could still exist after a vasectomy.

Dr. R immediately contacted a defense attorney, explained the situation, and showed the attorney records clearly stating that Mr. W had been contacted and told both orally and in writing that he needed to continue to use birth control until all sperm tests were negative. The attorney believed they had a strong case for trial.

At the trial, Dr. R could not believe what he was hearing. Mr. W took the stand and told the jury that the doctor had not explained things to him, that the doctor had only handed him a sheet of paper and, since he has learning disabilities, he was unable to read what was written. He stated that he had been told that the test results were okay, and he did not believe he had to return to the physician anymore.

He told the jury how hard it had been raising three children with birth defects before this new baby came along, and the new child made life even harder. His wife took the stand and testified similarly, telling the jury about her shock at discovering that she was pregnant, but that their beliefs prohibited terminating the pregnancy.

An expert urologist testified that it is extremely rare for the vas deferens to rejoin, and that it was likely that the operation had been faulty from the beginning.

When it was finally his turn to take the stand, Dr. R related in great detail each step he had taken with the patient and his records were introduced as evidence. He told the jury that he had warned Mr. W that sperm could be active for several months post-vasectomy, and that re-growth of the vas deferens is a known risk of the procedure. He explained how both he and his office manager had called the patient to inform him of his test results, and that the patient had failed to respond.

After an hour and a half of deliberations, the jury came back with a verdict in favor of Dr. R.