When the Patient Seeks a 'Favor'

This month, we feature an article from the archives written by CAP’s former General Counsel Gordon Ownby

Asking one’s physician for a “favor” generally means asking for something outside of what the physician would normally and customarily do. When that favor also involves asking the physician to step outside his or her specialty, the warning bells should start ringing. Pealing, actually.

A 34-year-old construction manager with a history of Klippel-Feil syndrome and scoliosis visited Dr. NS, a neurosurgeon, for a checkup on his original diagnosis and to check on a lump on his lower back. Upon examination and an MRI, Dr. NS noted a congenital fusion of C2, C3, and C4 and a small hemangioma.

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During the initial visit, however, the gentleman told Dr. NS that he and his wife, a nurse at the hospital where Dr. NS was on staff, wanted to have a child and, because his wife was cystic fibrosis positive, he wanted to be screened himself. After that discussion, blood was drawn for a “CFTR Intron Poly T” analysis. The results of that test stated: “DNA testing indicates that this individual is negative for the 5T allele in the cystic fibrosis (CF) gene. This assay analyzes only the poly T tract of the CF gene. It does not analyze any mutations commonly associated with a clinical diagnosis of CF.”

When the patient returned to Dr. NS five weeks later, Dr. NS advised him of the MRI findings, discussed some increased risk of adjacent level disease at C5-C6, and recommended that he follow up as needed. Though Dr. NS recalls telling the gentleman of the negative cystic fibrosis test result and advising him to follow up with his primary care physician and his wife’s OB/Gyn, Dr. NS’s records contain no reference to that discussion.

The next year, the patient’s wife suffered a miscarriage. Her medical records with her OB/Gyn showed no discussion of cystic fibrosis. When the wife, age 35, was seen for another pregnancy five months later, she indicated on her obstetric questionnaire that she was a cystic fibrosis carrier. An “OB intake” note created two weeks later states the wife was a cystic fibrosis carrier and that her husband’s CF screening was negative. Prenatal chromosome screening was requested, but not screening for cystic fibrosis. The family history for genetic conditions on the order form was marked “no” and no referral to a genetic counselor was noted.

A note at 19 weeks by the wife’s perinatologist describes the patient as a cystic fibrosis carrier while the husband was not. When an ultrasound revealed an echogenic bowel, the perinatologist recommended amniocentesis, which the wife declined. The perinatologist documented that his patient “may consider genetic counseling and fetal testing.” That same day, the genetics center documented the declined amniocentesis and also the offer and declination of cystic fibrosis DNA testing for the husband. Nevertheless, subsequent medical records indicate both parents learned at about this time that they were both carriers for cystic fibrosis. The parents nevertheless did not undertake in utero testing.

Three weeks prior to delivery, an ultrasound revealed an echogenic bowel fetal abnormality, excessive fetal growth, and fetal myocardial hypertrophy. The newborn’s diagnosis of cystic fibrosis was made through the newborn screening health program.

In a lawsuit for wrongful life and negligent infliction of emotional distress, the family sued Dr. NS, claiming that he was negligent in performing prenatal genetic testing on the husband, resulting in being erroneously told that he was not a cystic fibrosis carrier and leading to the baby’s ultimate condition. The plaintiffs claimed that Dr. NS ordered the wrong test and that the husband did not receive a copy of that initial report. Further, the parents denied that Dr. NS made any referral and claimed that his report to the husband on the negative test was stated definitively.

At his deposition, Dr. NS testified that he agreed to the add-on testing for his patient out of professional courtesy to a hospital colleague, even though he did not recall actually knowing his patient’s wife. Dr. NS testified that he did not know how “CFTR” appeared on his prescription order, as he said he left the specific test to be performed up to the lab. Also at his deposition, Dr. NS said he did not recall reading the narrative on the report stating the test results’ qualifications.

The family and Dr. NS resolved the litigation informally.

While Dr. NS’s ordering a cystic fibrosis test in such circumstances could itself be defensible, the absence of any documented referral or even a discussion on the stated limitations of that test created a significant burden for the neurosurgeon.

Physicians put in similar situations should think hard about whether the best “favor” they can give their patients is to tell them they need to see a different treater.  

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.