COMMENTARY

When Does a Person Become Your Patient? And Other Duty-of-Care Conundrums

Carolyn Buppert, MSN, JD

Disclosures

April 08, 2021

Carolyn Buppert, MSN, JD

Clinicians have a "duty" to their patients — to provide care within reasonable standards of quality, to be responsive, and to provide follow-up. 

It's clear that an individual who is admitted to the hospital where the clinician practices is a patient and therefore the clinician has a duty of care to that person. Likewise, if an individual is enrolled as a patient at a clinician's office practice, the clinician has a duty of care to that individual. However, a duty of care can be established outside of hospital admission or office visits if the clinician gives advice and the individual relies on that advice.

Clinicians sometimes find themselves in a situation where someone calls upon them to provide advice outside of an office appointment or hospital admission. It isn't clear to what extent the clinician is obligated to provide the advice and, if so, to follow up. This dilemma is especially worrisome when the patient has a problem that, if not followed up, could be a threat to life and limb. Clinicians wonder whether they could be sued for malpractice if they get involved. They also worry about the ethics of not getting involved.

'You Aren't My Doctor, But…'

Consider this scenario: You are a clinician in office practice. A stranger leaves a message on your personal voice mail saying that a mutual friend suggested they call you. The caller has abdominal pain and doesn't know what to do. Are you obligated to call them back? If you do call them back, are you obligated to follow up? If something goes wrong, are you on the hook for a malpractice lawsuit?

Duty of care is one of four elements that a plaintiff must prove in order to mount a successful lawsuit for malpractice. Duty of care is a clinician's obligation to provide the attention that a reasonable and prudent clinician would apply to protect the individual from unnecessary harm. It includes responsiveness, communication, and follow-up. Clinicians have a duty of care to their patients, but they have no duty to the general population.

When does a person become a patient? Some medical boards provide direction.

The Colorado Medical Board's policy 40-3 says:

"Clinician-Patient Relationship" [i]s the mutual understanding, between a clinician and patient, of the shared responsibility for the patient's healthcare. This relationship is established when:

A. The clinician agrees to undertake diagnosis and treatment of the patient, and the patient, or a medical proxy for the patient, agrees to be treated — whether or not there has been an in-person encounter between the patient and the clinician; and, 

B. The clinician:

i. Verifies and authenticates the patient's identity and location;

ii. Discloses his or her identity and applicable credential(s) to the patient; and,

iii. Obtains appropriate informed consent after any relevant disclosures regarding the delivery models and treatment methods or limitations, including any special informed consents regarding the use of telehealth technologies. 

A "Clinician-Patient Relationship" has not been established when either the identity of the clinician is unknown to the patient or the identity of the patient is not known to the clinician.

Using this definition, we can determine that the clinician need not return the phone call, in Colorado at least. The clinician decides when they will take on the care of a patient and that hasn't happened. A clinician doesn't have to take on all-comers. However, a clinician cannot discriminate on the basis of race, national origin, religion, and other protected classes. And a clinician who has contractually agreed, through a managed care contract, for example, to take on care of a designated population has a responsibility to take on a member of that population.

What if the clinician has empathy for the caller and returns the call? Is the clinician then obligated to continue to attend to the individual and provide follow-up? In that scenario, one could argue that there is a clinician-patient relationship. The clinician who returns the call can build in some protection by setting limits; that is, the clinician can state that the clinician isn't taking on the care of the patient but is willing to provide information about where to go to get medical attention.

Old Patient, New Problem

What about when the individual is a patient but the clinician isn't competent or willing to attend to a new problem? What are the clinician's responsibilities to follow up on the new problem?

Consider these scenarios:

  • You practice in an emergency department. A patient comes in after a fall. A chest x-ray shows broken ribs and also an infiltrate. This person is your patient, today, for the evaluation and management of the broken ribs, but what is your obligation to follow up on the infiltrate?

  • You practice gynecology/women's health. You are conducting an annual exam and notice a suspicious skin lesion on the patient's leg. What is your obligation to make sure the skin lesion is followed up?

The patient already is your patient, but is the patient your patient for the new problem? How far must you go to make sure the infiltrate and the skin lesion are followed up to a diagnosis or rule-out?

In very few cases has a specialist or emergency department clinician been held liable for failure to follow up on a problem which the clinician identified but which is outside the clinician's expertise. Under most circumstances, duty of care is fulfilled if the clinician informs the patient of the finding, recommends a course of action such as seeing an appropriate specialist, specifies a time frame, and identifies the worst-case scenario if the new finding is not followed up. This could be accomplished with this type of statement: "An abnormal lesion shows up on your chest x-ray. It may be serious, or not, but I recommend that you see a pulmonologist within 2 weeks. If you don't follow up on this, it is possible that the outcome could be very serious, including death." The clinician has then provided notice such that a reasonable person is informed of the problem and need for follow-up.

Additional risk-reducing practices are to document the finding and what you told the patient, and notify the patient's primary care provider of the finding.

Check your state's medical board or medical association's policies on when a patient becomes a patient. If your state doesn't have one, this resource from Texas may be helpful.

Carolyn Buppert is an attorney and former nurse practitioner who focuses on the legal issues affecting nurse practitioners.

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