The question of how and when “duty” is created may be problematic in medical liability cases.
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Published 1/1/2012
David H. Sohn, JD, MD; S. Jay Jayasankar, MD

You Be the Judge

When does a physician’s “duty” begin?

Medical liability cases are based on state tort law. To prevail, a plaintiff must prove the following four elements: duty, breach of duty, causation, and damages.

The questions of how and when “duty” is created may be problematic at times, as the illustrative court cases in this article indicate.

When a physician agrees to become the treating doctor for a patient, a fiduciary duty is created between the physician and patient. In the purest terms, a fiduciary relationship arises whenever one person places trusts in or relies upon the judgment and advice of another. As stated in the AAOS Code of Ethics and Professionalism for the Orthopaedic Surgeon, Section I.B., the physician-patient relationship “has a contractual basis and is based on confidentiality, trust, and honesty.”

Once a physician-patient relationship exists, the patient’s care is the physician’s primary focus. Should a breach of duty injure or otherwise cause the patient to sustain damages, he or she may have an actionable claim against the physician.

What remains unclear is when exactly the duty between physician and patient is created, especially in the area of consults. In a consult situation, a physician may or may not have the duty of a treating physician, depending on the formality of the consult. Consider the following situations, and ask yourself whether you would find that duty existed if you were the jury.

An on-call consult
A 20-month-old child was brought to the hospital with complaints of fever, weakness, and vomiting. The patient was admitted to the hospital by the general surgery service. After 2 days, the patient had not improved, and the admitting general surgeon requested a pediatric consult. The pediatrician explained that he was not on call, and was unavailable to accept the consult. The next day, the child died from cardiorespiratory arrest. An autopsy later showed a bowel obstruction.

The parents brought suit against the pediatrician, alleging that if he had come in when consulted, the bowel obstruction would have been diagnosed in time to save the child’s life. The pediatrician argued that he owed no duty to the patient, and, as a matter of law, the case should be dismissed.

How would you rule? At issue is when the duty is created.

A late-night phone call
A 2-year-old boy was seen in the emergency department after an awkward fall while jumping on the family room couch. A pediatrician saw the child, admitted him, and ordered radiographs. While trying to form a differential diagnosis, she called a neurosurgeon at home at 2 a.m. She did not ask for a formal consult, only his thoughts. The neurosurgeon suggested a lumbar spinal tap to rule out meningitis.

Two hours later, the pediatrician wrote an order in the chart to formally consult the neurosurgeon. The following morning, the neurosurgeon was operating and never received the call. Hours later, the child was transferred to another hospital where a spinal cord injury was diagnosed.

The child’s parents later sued the neurosurgeon for a negligent consult. The neurosurgeon defended by arguing that the telephone call was an informal courtesy service, not a true consult, and that he therefore owed no duty to the patient.

How would you rule? At issue is how formal a consult needs to be to establish a duty. If a consulting physician examines the patient, examines the records, performs a procedure, and bills for his time and effort, a duty is created between the patient and physician.

An informal opinion
The patient saw a hospital cardiologist, and asked him to interpret the results of an angiogram which the patient had previously undergone. The hospital cardiologist informally asked the opinion of two interventional cardiologists, both of whom stated that the patient was a candidate for angioplasty.

The patient was scheduled for angioplasty by the second interventional cardiologist, who intended to perform the procedure but was delayed. The procedure was performed by his partner. When the patient died during the procedure, the partner and the second interventional cardiologist attempted to resuscitate him.

In the lawsuit, everyone was sued. Both interventional cardiologists defended themselves by saying that they were only informally consulted, and owed no duty to the patient because they did not perform official consults or bill for the services.

How would you rule? Here the “informal” consult is perhaps not so informal. The second interventional cardiologist went so far as to schedule a procedure for the patient.

What it means for you
Whether a physician-patient relationship exists is not always clear, particularly in cases where the physician is providing a consult. A request for a consult does not automatically establish a duty to the patient; the consult must be accepted. Informal consults, where specific patient data is not reviewed, and where physicians do not bill for time or services, generally will not be construed to impose a duty. More formal consults, however, likely will result in such a determination. These facts should be kept in mind the next time a colleague asks, “Hey, can I show you an X-ray?”

These cases were decided under Illinois law; state case laws govern physician-patient relationships and may vary from one state to another. If you have questions about the applicable fiduciary duties in your state, contact your hospital administrator or risk manager, your medical liability insurance carrier, or your attorney for more information.

David H. Sohn, JD, MD, and S. Jay Jayasankar, MD, are members of the AAOS Medical Liability Committee.

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor S. Jay Jayasankar, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.