Shared Liability? Consultants, Pharmacists, and the Emergency Physician

Legal Cases and Caveats

Joshua J. Moore, BA; Aaron G. Matlock, MD

Disclosures

J Emerg Med. 2014;46(5):612-616. 

In This Article

Abstract and Introduction

Abstract

In caring for patients in the Emergency Department (ED), the emergency physician (EP) will often utilize consulting specialists and pharmacists. In the event of an untoward patient outcome, disagreement may arise regarding the liability of each provider. Here, we review a series of malpractice cases involving consulting physicians and pharmacists to illustrate the legal principles of physician-patient relationships and physician duty. Determination of liability in the courts will rest, in part, on whether a physician-patient relationship was formed via an "affirmative act". Consulting physicians may establish a relationship through an overt or implied agreement to participate in a patient's care, or by reviewing specific tests and studies for the purpose of diagnosis and treatment. The courts have defined the duty of the pharmacist to safely dispense medication, and have ascribed the duty to warn of medication side effects to the prescribing physician.

Introduction

In caring for patients in the Emergency Department (ED), the emergency physician will often utilize consulting specialists and pharmacists. In the event of an untoward patient outcome, subsequent disagreement may arise regarding which provider maintains liability. Determination of liability in the courts will rest, in part, on what particular duty the consultant or pharmacist has toward the patient. Also, the relationship of the professional to the patient is critically analyzed. A physician–patient relationship is broadly defined as an affiliation in which the patient seeks care, and the physician agrees to provide care. The patient, in essence, says directly or via a representative, "I want you to take care of me," and the physician agrees via an "affirmative act." This affirmative act is a clear expression of intent to participate in a patient's care. When a physician takes an affirmative action to treat a patient, the physician's consent to establish a physician–patient relationship can be implied. In essence, the professional is implying, "I agree to take care of you."

The creation of the relationship is the physician's agreement, to an overt or implied request, to become responsible for the patient's care. In the ED setting, consultants may be involved peripherally or indirectly, and the circumstances by which a physician–patient relationship is established may be less clear. It may be difficult to determine whether the consulting specialist knowingly attempted to provide care for the patient or the patient knowingly sought care from the physician. It is important for providers to recognize their legal exposure in various professional relationships. The following malpractice cases, involving ED and other specialty physicians, demonstrate how liability is determined by the courts. The overriding key concept is whether a provider–patient relationship has been established. Similarly, we will also explore the relationship between pharmacists, patients, and physicians, using representative cases that clearly delineate respective responsibilities when prescribing medications.

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