How many times have you been asked a medical question outside the hospital? Undoubtedly, it happens too many times to count.
An acquaintance asks about a strange pain; you look at a rash on your neighbor’s son; you guide a nurse when she can’t reach a patient’s physician; a colleague asks for a curbside consult; or you provide medical advice over the phone to another provider while on-call at the hospital. When do any of the people in these situations become your patient?
Unfortunately, there is no easy answer. Legally, the question of whether a physician-patient relationship is created is determined on a case-by-case basis. As a general rule, if a physician undertakes to treat or provide medical care, a physician-patient relationship exists and the physician contracts to exercise reasonable skill in providing the care.
Absent an express agreement to enter a physician-patient relationship, the law may imply a relationship based on conduct that demonstrates consent to a relationship. A patient demonstrates consent by seeking medical services. Consent may also be implied when, for example, a patient needs emergency care, services are provided at the request of a treating physician, or treatment is mandated by a court.
Physicians consent to a relationship by diagnosing, treating, or otherwise providing care. A physician can also consent simply because of a working arrangement with a hospital or other entity—such as an agreement to accept assignment of patients.
In determining whether a physician-patient relationship has been created, consider the absence or existence of affirmative acts by a physician. For example, when a physician receives a call from a patient’s treating physician and the two physicians discuss the patient, the conversation might not create a physician-patient relationship if the consulting physician does not expressly provide an opinion. This is because there is no affirmative action upon which a court can imply a duty. Likewise, an on-call doctor does not create a physician-patient relationship simply by being on-call when she does not see, treat, or participate in the care of a patient.
Conversely, acts sufficient to create a physician-patient relationship exist when an on-call or consulting physician offers advice, provides treatment, or discharges a patient. Notably, an implied duty can be inferred even if the physician has not had direct contact with a patient if the court determines the physician’s conduct has interfered with a patient’s interests—thereby entitling the patient to legal protection.
Duties of Physicians
Even absent a physician-patient relationship, the law can impose general duties on physicians. Physicians have a duty to use reasonable care in regard to affirmative conduct when it is foreseeable that another might be injured.
For example, the Colorado Supreme Court found that an anesthesiologist owed a general duty to hospital patients who were not his patients when the physician’s failure to properly dispose of medication exposed patients to a foreseeable risk of harm.
The court has also found that a physician retained by defendants in a personal injury lawsuit owed a duty of reasonable care when subjecting the plaintiff to medical examinations. Similarly, the court concluded that an independent medical examiner could be liable for any injury the examiner causes during an examination, even though the examiner does not owe a duty to accurately diagnose the patient.
Is That Your Patient?
Ultimately, a physician-patient relationship and its corresponding duties arise when reasonable people would recognize a duty and agree that it exists. You must analyze your conduct and interactions, including your:
- Communication with patients or nonpatients (including e-mail or conversations in passing);
- On-call status;
- Agreements with facilities, a service, or other providers to accept patients;
- Degree of responsibility for a given patient’s care;
- Charges or fee discussion;
- Affirmative acts of care or treatment as distinguished from examination solely for the benefit of a third party;
- Initiation of contact with the patient or patient’s family;
- Referral from another physician or non-physician; and
- Consultations with other physicians, either formal or informal and whether different areas of expertise are involved or specific care or advise is given.
Ultimate determination of whether a physician-patient relationship exists is fact-specific—and no single fact is definitive. The above factors may guide you in assessing the nature of your interactions with patients and your attendant responsibilities. TH
Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.