Is This a Real Doctor-Patient Relationship?

[Guest guest]

There was discussion a while back about

DCs doing ‘consultations’ via the Web. FYI.

s. fuchs dc

Telephone

and Internet Consultations

It is

becoming more common in some areas for physicians to do telephone and

videoconference consults. If a physician gives advice online or over the phone,

the same rules apply. The court will look at the individual facts to determine

whether a doctor-patient relationship was formed. If the doctor phones an

established patient, the relationship is presumed to be established. Similarly,

if a doctor discusses a case with a patient via videoconferencing (through

Skype, for example), a doctor-patient relationship has been established.

For

example, if a university physician holds a videoconference with a remote doctor

who presents a patient, and the university physician asks questions and gives

treatment advice, a doctor-patient relationship has been established.

Discussing

cases in a general manner with people online is a trickier situation. Giving

generic information about diseases or treatments probably isn't enough to

establish a doctor-patient relationship.

However,

there are times when drawing the line is questionable. For example, a physician

gives generic information about a disease to an anonymous poster on a blog.

No

relationship has been established. If the physician recommends that the patient

schedule an appointment with that physician's office, a relationship has been

formed. If a patient schedules an appointment with a doctor's office, a

relationship has been formed.

What

courts seem to use as the determining factor is whether the physician has taken

some affirmative action to be involved in a patient's medical care.

Is

This a Real Doctor-Patient Relationship?

Francis, MD, JD

Posted: 03/01/2012

Introduction

You know

you're responsible for your patient's care -- at least as far as malpractice is

concerned -- but sometimes physicians can be sued and held liable even when

they thought that they did not have a relationship with the patient.

Determining

whether a doctor-patient relationship exists is an important issue in medical

malpractice cases. If there is no relationship, there can be no malpractice.

The

existence of the relationship is a question of fact specific to each individual

case. Courts traditionally look at many factors, including: Was there a

contract between the doctor and patient; was a history and physical examination

done; was a note generated; was there a bill for services; was a specific

opinion rendered; was there any positive action taken by the physician to

provide care for the patient; and was the case discussed in general or

hypothetical terms, or in specifics?

Although most

cases are clear-cut, here are some situations in which the territory is more

nebulous.

Third-Party

Opinions

A doctor

is often hired by a third party to give an independent opinion about a patient.

Examples would be preemployment physical examinations; insurance examinations;

and independent evaluations for lawyers in personal injury and worker's

compensation cases, and for various state and federal agencies.

No

doctor-patient relationship is formed in these situations. However, if a

serious or life-threatening condition is discovered, the physician has a legal

duty to report it to the patient -- even if the employer doesn't require it.

Failure to report a life-threatening condition can be considered gross

negligence.

In an Arizona case, Dr.

McCarver, a radiologist, was held liable for failing to notify a patient of the

presence of a suspicious lesion on a preemployment chest radiograph. McCarver

was screening for tuberculosis. He recorded the finding of the lung lesion in

his report to the company but did not notify the patient directly. The patient

was diagnosed with lung cancer 10 months later and successfully sued McCarver.

Telephone

and Internet Consultations

It is

becoming more common in some areas for physicians to do telephone and

videoconference consults. If a physician gives advice online or over the phone,

the same rules apply. The court will look at the individual facts to determine

whether a doctor-patient relationship was formed. If the doctor phones an

established patient, the relationship is presumed to be established. Similarly,

if a doctor discusses a case with a patient via videoconferencing (through

Skype, for example), a doctor-patient relationship has been established.

For

example, if a university physician holds a videoconference with a remote doctor

who presents a patient, and the university physician asks questions and gives

treatment advice, a doctor-patient relationship has been established.

Discussing

cases in a general manner with people online is a trickier situation. Giving

generic information about diseases or treatments probably isn't enough to

establish a doctor-patient relationship.

However,

there are times when drawing the line is questionable. For example, a physician

gives generic information about a disease to an anonymous poster on a blog.

No

relationship has been established. If the physician recommends that the patient

schedule an appointment with that physician's office, a relationship has been

formed. If a patient schedules an appointment with a doctor's office, a

relationship has been formed.

What

courts seem to use as the determining factor is whether the physician has taken

some affirmative action to be involved in a patient's medical care.

Situations

That Create a Relationship

Taking

Call for a Partner

A physician

who takes call for a colleague assumes full responsibility for all the covered

physician's doctor-patient relationships. As a result, the covered patients now

belong to the covering physician and are legally indistinguishable from the

physician's own patients. The covering physician may have never seen, examined,

or treated any of the patients being covered. The physician is nonetheless in a

doctor-patient relationship with them.

It can be

argued that no relationship exists if the patient is new to the practice or has

not been seen for a long time. However, the use of the telephone to conduct a

history or give medical advice establishes the relationship.

A

physician covering for residents and medical students likewise has a

doctor-patient relationship with the patients involved, whether or not there

has been any contact with the patient. The same can be said for doctors

sponsoring nurse practitioners and physician assistants.

Physician

Curbside Consult

Under

traditional medical malpractice theories, liability would not be imposed for

so-called " curbside consultations. " Curbside consultations are

informal, generally hypothetical, consultations about patient care between

physicians during routine conversation in a hallway or doctor's lounge. Such

consultations can also occur in social settings, in academic conferences, or on

grand rounds. In general, the patient does not know that the consultation has

occurred, nor does the consulting physician know of the actual existence of the

patient.

These

consultations occur between physicians who regularly consult with one another

and who use one another as a medical resource like a textbook or treatise. In

those cases, the argument against imposing a duty based on a physician-patient

relationship is that it would chill the exchange of medical information between

medical professionals and do more harm than good for patients.

The Oklahoma case of Dr.

Schlinke, an obstetrician/gynecologist, typifies the curbside consult.

A doctor asked Dr. Schlinke for an opinion about induction of labor for a

patient. Schlinke was later named as a defendant in a malpractice suit on the

basis of the conversation. There had been no request for a formal consult, and

Dr. Schlinke never talked to or examined the patient, did not charge, and did

not provide or attempt to provide medical care or treatment. Finally, he did

not look at the medical chart. The case against him was dismissed because no

doctor-patient relationship had been formed.

Patient

Curbside Consult

Most

doctors have at some point been waylaid in the supermarket, at a neighborhood

barbecue, or at the movie theater by an acquaintance and asked a medical

question.

What is

your liability for answering the question? In general, a doctor-patient

relationship is formed if a partial history is taken and medical advice has

been given. However, in order to be successfully sued, the advice has to be

deemed substandard by expert testimony later on. So, while this scenario may

seem -- and could potentially be -- dangerous, it usually isn't.

Situations

in Which You Won't Be Held Liable

Good

Samaritan Statutes

Many

states have enacted Good Samaritan statues. These do not address the question

of the formation of a doctor-patient relationship. Rather, they provide an

element of immunity from acts of ordinary, but not gross, negligence. A

physician who acts in good faith has formed a doctor-patient relationship but

is most often immune from liability.

Emergency

Department Coverage

The act

of being on call for an emergency department (ED) brings the Emergency Medical

Treatment and Active Labor Act (EMTALA) into effect and adds a legal

obligation. Under EMTALA, an ED and its on-call physicians owe a duty of care

to any person who presents with an emergency. Because of EMTALA, an interaction

between an ED physician and an on-call physician regarding a patient who is in

the ED is not considered a curbside consult.

However,

not all ED phone calls result in the formation of a doctor-patient

relationship. In the Texas

case of Dr. Holland St. who was an internal medicine specialist on call

for the ED, the court found that no doctor-patient relationship had been formed

on the basis of a phone consultation.

A patient

who had recently undergone spinal surgery and epidural injections presented

with a high leukocyte count and delirium. The ED physician diagnosed lower back

pain and acute psychosis. Dr. St. was called and informed of the

situation. He recommended transfer to the hospital where the surgery had been performed.

The next day, meningitis was diagnosed, and the patient had permanent

impairment. The subsequent malpractice lawsuit against Dr. St. was

dismissed because no doctor-patient relationship had been established.

Visiting

Professor

Many

physicians will on occasion lecture at another institution. Physician audience

members present cases for discussion. The visiting professor gives an opinion.

Has a

doctor-patient relationship been formed? The answer is no. However, if the

visiting professor examines a patient, orders tests or writes a note, there is

the appearance of the creation of a doctor-patient relationship. Still, a

lawsuit in such a case is extremely rare.

The California case of UCLA Medical

School gastroenterologist

Dr. Morton I. Grossman is illustrative. He was invited to lecture to a group of

physicians. Various cases were presented for discussion, including one of

ulcerative colitis. Dr. Grossman gave an opinion that in such a case, surgery

was indicated. The treating physician made his recommendation to the plaintiff,

and surgery followed. Later, the patient sued Dr. Grossman for negligence.

However, the court ruled that no doctor-patient relationship had been

established and dismissed the case.

Conclusion

The rules

concerning the establishment of a doctor-patient relationship are based on

common sense. If there is some positive action toward furthering the diagnosis

and treatment of the patient, the relationship probably exists. If the case is

discussed in a generic or hypothetical way, there is probably no relationship.

Also, the

advice has to be shown to be substandard on the basis of expert testimony at a

later time in order for there to be a successful suit. In general, there is

usually little to fear in these situations.

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