Don't Make Assumptions
Law Feature – November 2012
By Andrea Schwab, JD
TMA Associate General Counsel
Tex Med. 2012;108(11):48-50.
At the heart of medical care is the unique relationship between a physician and patient. In most cases, physicians know when they have a physician-patient relationship, but there are times when its existence is unclear.
Does a physician have a duty to an individual he or she has never seen or treated, but for whom he or she altered care by consulting with a colleague? Does an on-call physician have a duty to a patient he or she declines to see? Does a physician who examines a patient for the benefit of an insurance carrier have an obligation to tell the patient about a medical condition he or she discovers?
The answers to such scenarios may be surprising to some physicians. It is important to know when a physician-patient relationship exists because it imposes a duty on the physician to exercise appropriate professional judgment and care.1
A physician-patient relationship exists because of a contract, express or implied, that the doctor will treat the patient with proper professional skill.2 A physician need not have physical contact or deal directly with a patient to create the relationship.3
Although the relationship is contract-based, the contract need not be formal – it can be implied in fact, which means it "arises from the acts and conduct of the parties … that there was a mutual intention to contract."4 For example, a court recently found there was a relationship based on conduct of the parties, even though the physician never saw the patient nor directly influenced the patient's care.5 In that case, an individual consented to a technician performing laser hair removal "under the supervision and control" of the physician. The physician signed and dated the technician's notes, having never seen the patient.6
A physician may also agree to a physician-patient relationship pursuant to a formal contract, and the patient need not be a party. The important fact in determining whether the relationship is a consensual one is not who contracted for the service but whether it was with the express or implied consent of the patient, or for his or her benefit.7
For example, a physician and hospital may agree to a physician-patient relationship that leaves the physician no discretion to decline treatment.8 Likewise, the relationship can arise under a patient's health care plan if the physician is the designated doctor.9
In one such case, a court found there was a physician-patient relationship in part because both the physician and the patient had a contract with Humana.10 The two contracts gave the patient a right to care from the doctor on call.11 The Humana doctor responsible for authorizing hospital admissions denied the patient admission, recommending outpatient treatment. The patient left the hospital and suffered a stroke. The court held that when a health plan's insured shows up at a participating hospital emergency department, and the plan's designated doctor is consulted, there is a physician-patient relationship, and the doctor owes the patient a duty of care.12
Additionally, hospital bylaws can impose a duty on a physician.13 In one such case, hospital bylaws said "an on-call physician is obligated to provide emergency medical care to a patient in the emergency room," and the court apparently considered the bylaws to be a contract.
The emergency physician had phoned the on-call neurologist the results of testing, and the neurologist opined that further treatment was unnecessary because the patient likely had a hemiplegic migraine. The court determined the neurologist made a medical decision concerning the need for treatment and admission; therefore, he committed "affirmative acts" toward the patient's treatment, even though he never examined the patient or reviewed tests. The neurologist failed to prove there was no physician-patient relationship because he was (1) under a contractual obligation with the hospital to assist the emergency physician in treating the patient, and (2) he actually consulted with and advised the emergency physician about the patient.
A consensual physician-patient relationship probably does not exist, however, when a doctor merely offers advice to a colleague.14 For example, a court found no physician-patient relationship when an obstetrician did no more than answer a treating physician's professional inquiry by telephone. The physician never contacted, examined, or treated the patient. The court noted there was no evidence the obstetrician contracted with the treating physician or anyone else to perform any services for the patient.15
The mere fact that a doctor is on call does not create a physician-patient relationship nor does it impose any duty on the doctor to treat the patient.16 The relationship is consensual, and when there is no prior relationship, the doctor must take some action to treat the patient before the relationship is established.17
The Texas Supreme Court found that an on-call physician had not formed a physician-patient relationship when he only expressed his opinion to the emergency physician by phone that the patient should be transferred elsewhere. The patient had presented with fever and back pain following recent back surgery, and the on-call physician stated that the patient should be transferred to a facility that had a neurosurgeon or to the patient's surgeon.18 The patient went home and ultimately suffered permanent disabilities from meningitis.19
Although the on-call physician listened to the emergency physician's description of the patient's symptoms and made a conclusion regarding the basis of the patient's condition, "he did so for the purpose of evaluating whether he should take the case, not as a diagnosis for a course of treatment."20 He never agreed to examine or treat the patient, and there was no evidence of an agreement requiring the on-call physician to treat the patient.21 A physician may decline treatment and thereby decline to create a physician-patient relationship, even on the basis of an erroneous conclusion that the patient's condition is beyond his or her ability to treat.22
A case with an apparently different result involved an eight-month pregnant patient who asked emergency medical technicians (EMTs) to transport her to a hospital 90 miles away.23 The EMTs first took her to the nearest hospital to determine whether she could safely travel the distance. Two nurses assessed the patient and telephoned their findings to an on-call general practitioner. The on-call physician approved the transport; during the trip, there was a breech delivery and the baby died.
In the lawsuit that followed, the court held that a physician-patient relationship existed because the physician was asked to evaluate information and make a medical decision, and he agreed to do so. In evaluating the status of the labor and approving the transport, he established a physician-patient relationship and accepted the duty to comply with the applicable standard of care.24 The court did not analyze the issue regarding whether the physician was contractually obligated to render services to the patient, but noted that the physician actually did render services to the patient.25
A doctor's examination of a person solely for the benefit of a third party, such as to determine the person's fitness for employment or extent of disability for a workers' compensation claim, does not create a physician-patient relationship because the examination is not performed for the individual's benefit or to treat the individual.26
For example, when a doctor examines a person for the sole purpose of a workers' compensation assessment, no physician-patient relationship likely exists and the doctor's only duty is to conduct the examination in a manner not to cause harm to the person he or she is examining.27
When a physician examines a nonpatient for the benefit of a third party, he or she might not have the duty that arises from the physician-patient relationship – the duty to exercise appropriate professional judgment and care. The physician, however, remains liable for any injury he or she may cause during the procedure. This is the "duty not to injure."28
Indeed, one court held that the physician's duty not to injure the examinee did not include a duty to inform her of a finding of a mass on her lung during an examination, because no physician-patient relationship existed.29 The court noted that the examinee, who later died of cancer, did not select the physician, did not submit to the examination to receive medical treatment, and did not ask the physician to inform her of his findings. The purpose of the examination, at the request of the Texas Rehabilitation Commission, was to determine her rehabilitative potential.
The existence of a physician-patient relationship depends on the facts of each particular case. Rather than relying on the precedent of Texas cases, which can always change in future holdings, a physician should take great care before assuming there is no physician-patient relationship. Physicians should consider the existence of a formal or implied contract, actions that may change the course of treatment for a patient, and bylaws or other agreements potentially requiring them to provide care in certain circumstances.
- St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995). Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex. App. – San Antonio 1988, no writ).
- Ortiz v. Shah, 905 S.W.2d 609, 611 (Tex. App. – Houston [14th Dist.] 1995, no writ).
- See St. John v. Pope, 901 S.W.2d at 423; Dougherty v. Gifford, 826 S.W.2d 668, 674 (Tex. App. – Texarkana 1992, no writ). (Physician-patient relationship existed between patient and doctors at laboratory who examined biopsy and misdiagnosed cancer.)
- St. John v. Pope, 901 S.W.2d at 424; Haws v. Gorbett. 480 S.W.2d 607, 609 (Tex. 1972).
- Stanford v. Cannon, 2011 WL 2518856 (Tex. App. – Texarkana 2011, no pet.).
- At the time this action arose, a laser hair removal device could be used without a physician or health care provider present and was not subject to state regulation.
- Dougherty v. Gifford, 826 S.W.2d at 675.
- St. John v. Pope, 901 S.W.2d at 423; Hand v. Tavera, 864 S.W.2d 678, 680 (Tex. App. – San Antonio 1993, no writ); Lection v. Dyll, 65 S.W.3d 696 (Tex. App. – Dallas 2001, pet. denied).
- Hand v. Tavera, 864 S.W.2d at 680.
- Id. at 620.
- Lection v. Dyll, 65 S.W.3d at 696.
- See Lopez v. Aziz, 852 S.W.2d at 306.
- Lopez v. Aziz, 852 S.W.2d at 306.
- See St. John v. Pope, 901 S.W.2d at 424; see also Day v. Harkins & Munoz, 961 S.W.2d at 281; Ortiz v. Shah, 905 S.W.2d at 611; Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 38 (Tex. App. – Houston [1st Dist.] 1993, no writ).
- Day v. Harkins & Munoz, 961 S.W.2d 278 (Tex. App. –Houston [1 Dist.] 1997, no pet.); Ortiz v. Shah, 905 S.W.2d at 611; Lopez v. Aziz, 852 S.W.2d at 306.
- St. John v. Pope, 901 S.W.2d at 424.
- Id. at 422.
- Id. at 424 (emphasis added).
- Id. at 423.
- Wheeler v. Yettie Kersting Memorial Hospital, 866 S.W.2d at 39.
- Id. at 39-40.
- Id. Distinguishing Fought v. Solce, 821 S.W.2d 218, 220 (Tex. App. – Houston [1st Dist.] 1991, writ denied) (no physician-patient relationship where physician on "voluntary" on-call status refuses to see the patient) and Childs v. Weis, 440 S.W.2d 104, 106-107 (Tex. Civ. App. – Dallas 1969, no writ).
- See Johnston v. Sibley, 558 S.W.2d 135, 137-38 (Tex. App. – Tyler 1977, writ ref'd n.r.e.); Ramirez v. Carreras, 10 S.W.3d 757 (Tex. App. – Corpus Christi 2000, pet. denied); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 709 (Tex. Civ. App. – Dallas 1963, writ ref'd n.r.e.); Ramirez v. Carreras, 10 S.W.3d at 762; Almaguer v. Jenkins, 9 S.W.3d 835, 838 (Tex. App. – San Antonio 1999, no pet.); Wilson v. Winsett, 828 S.W.2d 231, 232–33 (Tex. App. – Amarillo 1992, writ denied); Johnston v. Sibley, 558 S.W.2d at 138.
- Johnston v. Sibley, 558 S.W.2d at 135-36; Ramirez v. Carreras, 10 S.W.3d at 762.
- Ramirez v. Carreras, 10 S.W.3d at 762; Johnston v. Sibley, 558 S.W.2d at 135-36.
- Wilson v. Winsett, 828 S.W.2d at 231.
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