Is This a Real Doctor-Patient Relationship?

Anthony Francis, MD, JD

Disclosures

March 01, 2012

In This Article

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. Robert 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.

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