Chapter 2.B.1  Forming a Patient-Physician Relationship

Included here are an additional case, Adams v. Via Christi, to insert before Clanton v. Von Hamm, and updates for Creating the Patient-Physician Relationship, note 2, Creating the Patient-Physician Relationship, note 3, and Creating the Patient-Physician Relationship, note 4.

Creating the Patient-Physician Relationship, note 2

For a case in accord with Reynolds (p.144), see a decision by the Kansas Supreme Court, Irvin v. Smith, 31 P.3d 934 (Kan. 2001) (finding no patient-physician relationship with a pediatric neurologist who discussed a patient over the telephone with a pediatric intensivist responsible for the patient's care.

In addressing when a physician-patient relationship is created with a specialist on-call to an emergency department, the Tennessee Supreme Court observed that "it is simply unrealistic to apply a narrow definition of the physician-patient relationship" in a health care system in which patients are routinely diagnosed by "consulting physicians who might not ever see the patient face-to-face."  Accordingly, wrote the Court, "a physician-patient relationship may be implied when a physician affirmatively undertakes to diagnose and/or treat a person, or affirmatively participates in such diagnosis or treatment."  Kelley v. Middle Tennessee Emergency Physicians, 133 S.W.3d 587 (Tenn. 2004) (finding a patient-physician relationship when a cardiologist discussed a patient's medical condition over the phone with an emergency physician who was seeing the patient at a hospital's emergency department).

In a case from Georgia, the patient claimed that a doctor-patient relationship was triggered by the physician's involvement in the patient's care before the physician and patient actually met.  The patient had suffered a work-related injury and was seen by a physician retained by the employer for work-related injuries.  The physician examined the patient and ordered an MRI scan, but the physician was not on the workers' compensation panel of physicians authorized to order a scan and so discussed the case with a colleague who ordered the scan the next day, four days before first meeting and examining the patient.  The court remanded the case to the trial court, concluding that there were sufficient facts for the jury to conclude that a doctor-patient relationship was created when the physician ordered the scan.  Crisp Regional Hospital v. Oliver, 621 S.E.2d 554 (Ga. 2005).

Creating the Patient-Physician Relationship, note 3

For doctors performing pre-employment examinations, the Arizona Supreme Court also has imposed a duty of care to the applicant when the physician finds evidence of serious illness. In that case, a radiologist identified abnormalities on the applicant's chest x-ray ten months before the applicant was diagnosed with lung cancer. The court did not decide whether the radiologist should have contacted the applicant directly, holding instead that what actions are required to fulfill the physician's duty of care would depend on a number of factors.  Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004) (e.g., whether a treating or referring physician was involved in the matter)..

Creating the Patient-Physician Relationship, note 4

Like the Welke and Cram courts, an intermediate court of appeals in Kentucky has found a duty to third parties when injury was reasonably foreseeable. Schrand v. Grant, 1999 Ky. App. LEXIS 76 (July 2, 1999) (case in which the patient was driving while under the influence of Demerol when she collided with another vehicle and killed an occupant of the other vehicle). When the Kentucky Supreme Court denied review, it withdrew the decision from publication.  In South Carolina, the state supreme court held that physicians could be liable to third parties injured when physicians fail to meet their duty to warn their patients.  In that case, a dialysis patient caused an automobile accident shortly after leaving the dialysis center following treatment.  The court concluded that the physician had a duty to warn the patient of the risks of driving following treatment, and failure to so warn could trigger liability to third parties injured by the patient-driver.  Hardee v. Biomedical Applications of South Carolina, 636 S.E.2d 629 (S.C. 2006).

The question of duties to third parties also arises in cases involving genetic risks of disease.  If a physician fails to diagnose a genetic disorder in a couple's child (who is the actual patient), the couple may not be aware of the risk that future children will inherit the same disorder.  Courts in Minnesota and New Jersey have found a duty of care to the parents in such situations.  See Molloy v. Meier, 679 N.W.2d 711 (Minn. 2004) (finding a duty to parents when physicians failed to test child with Fragile X syndrome and second child was also born with the syndrome); Schroeder v. Perkel, 432 A.2d 834 (N.J. 1981) (finding a duty to parents on grounds of negligent diagnosis when physicians failed to identify cystic fibrosis in a child, and the parents became pregnant with a second child with cystic fibrosis); .

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