By Dr. JD, a plaintiff’s attorney, practicing in the Northeast
We continue our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
You are relaxing at your town’s July 4th barbecue, waiting for the fireworks. As you doze in your lawn chair, your neighbor taps you on the shoulder. “Doc, can I show you a spot on my arm that’s got me a little worried?” he asks.
You are at the PTA bake sale. The class dad next to you leans over and whispers, “Can I ask a favor? I was laid off and I can’t afford to go to the doctor just to get my Nexium prescription renewed. I feel like there’s lump in my stomach with all this stress. Could you just write me a prescription to tide me over?”
You are at your family reunion. Your cousin pulls you aside and takes out a copy of her lab report from an executive health service. She points to where elevated liver enzymes have been flagged. “What does this mean?” she asks.
You have been asked to offer a diagnosis, to prescribe and to evaluate clinical findings, all by people who are not your patients but are connected to you as friend or family, a setting usually referred to as “casual care”.
What do you do?
The simple answer is “Act like a doctor, not like a pal.”
But, really, you say, what can go wrong when no one is asking for opiates or for a surgical procedure to be done on the spot? Why not just help someone I like?
Actually, it is the “low risk” situations such as these that often drag physicians into liability that they could have avoided.
Let’s look at each example to see where the liability traps lie.
You look at your neighbor’s arm. You do not see obviously worrisome signs but are not sure that it is benign. You therefore tell him, “It is likely nothing serious but you should probably make an appointment with a dermatologist to have it looked at to make sure that it is OK”. Your neighbor interprets that to mean that you believe that it is unimportant and that follow-up is optional. You record nothing. He does nothing. Several months later, when it has worsened, he is diagnosed with invasive melanoma. He sues you, claiming that you, acting as a physician, told him that it was not dangerous. There is, of course, no documentation to show that you actually recommended follow-up with a specialist.
You write the prescription for your friend. You interpret “a lump in my stomach” to mean a sense of tension, aggravating his reflux. You are not aware that a mass is actually present, a mass that his doctor has missed. When, several months later, he is diagnosed with gastric cancer, he sues his family physician for delay of the diagnosis. Your friend does not sue you but the defendant brings you into the case, claiming that if he is liable, so are you. The fact that you actually wrote a prescription for your friend is taken as strong evidence of your intention to act as his physician, and so your motion to be released from the case is denied. At trial, you have no defense because while if your friend had come to your office you would have done a physical examination and would have made the finding. Instead you rubber-stamped another physician’s judgment, a judgment that turned out to be seriously in error.
You discuss a few conditions that can cause elevated liver enzymes with your cousin but you do not ask what you would ask any other patient: “How many drinks a day do you have?” You actually refrain from mentioning alcoholism because you do not want to offend her and potentially cause a rift in the family. You are unaware that your cousin, a very successful corporate manager, is actually a secret alcoholic who binge drinks at home every night. Several months later, she suffers hepatic failure. She sues you, claiming that you, acting as a physician, failed to warn her of her developing alcoholic liver damage. (Yes, I know, she should have known better.) You selectively never did so precisely because she was your cousin. You have no defense. She also brings a disciplinary complaint against you with your state medical board, claiming that you violated her rights to confidentiality when you told your husband, who asked where she had disappeared, that she was asking about her liver enzyme results, a comment that several other family members also overheard.
So, in a world in which no good deeds go unpunished, how can you limit your liability when “casual care” is sought?
Since it will not usually socially possible to flatly refuse, the answer is that you must modify the situation.
1. Remember that under legal standards there is no such thing as “casual care” – there is just “care”.
Never assume that a later lawsuit will be laughed out of court because, well, how could anyone claim that a glance at an arm or a prescription for a common drug or some general discussion was really “medical care”.
Bear in mind that the law looks to the reasonability of the “patient’s” belief you acted as their doctor in determining if a physician-patient relationship was established.
Asking you about potentially serious matters like a worrisome skin lesion or abnormal test results or asking you to take on a role of prescriber will all likely be held to evince the trust and dependence that characterizes the patient’s role. Your willingness to give medical advice, and certainly your willingness to actually prescribe, will then be seen as your assent to be their doctor in that particular setting.
That the relationship was not meant to be ongoing by either party is legally irrelevant. You will still be bound by the full duty of care as to medical conduct that you actually engaged in, and will therefore be subject to claims of medical negligence for it.
You will also be fully bound by confidentiality regulations, including HIPAA, with regard to any information that you come by as a result of the encounter.
Therefore, treat any situation in which you are only being asked for help because you are a doctor as one in which you will later likely be judged to have been actually acting as a doctor.
Your first step should therefore be to route the matter to your office and, once it is there, to treat it as a standard encounter with a patient. Or treat the encounter with the same deference. Do what you would otherwise do for a patient in your office. Record the visit.
2. Bear in mind that your own professional judgment may be compromised when you are dealing with family and friends.
In a social setting you are seen as more approachable than when you are in your white coat, and you will also probably be more relaxed, but you will still be held to the standards of medical care delivered under the strictest of professional settings.
If you cannot be objective, just say so at the outset.
3. Be aware of, and follow, your state’s regulations.
While no state specifically prohibits the care of friends and family members in all situations, most discourage it, particularly with regard to prescribing.
Some states, like Montana, note that prescribing for family members is held to “arguably…not meet the general accepted standards of practice, and is therefore unprofessional conduct [that] may subject the physician to license discipline”.
What all states emphasize is that any diagnosis, treatment or prescribing must proceed from what California describes as “the same practice protocol for any patient” “including a ‘good faith exam’ and documentation” and what Virginia characterizes as “a bona fide practitioner-patient relationship” that includes “a medical or drug history…information about risks, benefits, and side effects…[and]an exam.”
4. Stay within your area of expertise.
Before you offer an opinion ask yourself whether the issue is one which you would feel confident to deal with if a patient presented with it in your office.
When doing so bear in mind that when you leave your specialty you will be bound to the duty of care of a practitioner in the specialty that you have taken on.
5. Do not prescribe within the “casual care” setting.
Obviously, this applies to controlled substances. However, as noted above, writing any prescription is held by courts to be strong evidence of your agreement to the formation of a doctor-patient relationship. So, be careful about casually prescribing unless you are willing to serve as that person’s “doctor” even if for just the single encounter.
6. Treat anything revealed in the course of the “casual care” as fully confidential and subject to HIPAA.
Your steps are therefore to:
(i) make sure you are treating the casual encounter as a bona fide encounter with an actual patient
(ii) within that setting – and even if you are not charging them – document the encounter just as you would for any other patient, including records of any prescriptions, referrals or recommendations for follow-up
(iii) treat it all as fully confidential.
At that point, if you have determined that it is not advisable for you to continue as the treating physician, make a clear statement of that point and document it.
Returning to the three situations at the beginning, we now get very different outcomes:
– You tell your neighbor that you are not equipped to make a proper assessment of the lesion there at the park and then either offer him an appointment or a recommendation to a dermatologist.
– You tell your friend that you cannot write a prescription blindly but that if he wants to come in to see you that payment will not be an issue.
– You tell your cousin that discussion of her lab findings should be done in detail and in confidence. Offer her the option to see you in your office and then take the same history that you would on a patient who is a stranger to you. Of course, keep anything that you have learned about her private.
In every case you will have been the helpful person that you want to be but will have also protected yourself against liability.
Finally, the flip side of the coin….you can describe these issues to your friends / family and reference these points as a graceful way to avoid complicating their relationship with professional issues. Many doctors just want to remain friends or family with their friends or family.
In summary: “Casual care” – non-emergency medical involvement by a physician with friends or family – creates serious liability pitfalls because it is likely to invoke the full scope of the physician-patient relationship. It should be avoided if possible and, if necessary, should be routed into standard office-based care.
Medical Justice’s thoughts: The key is to treat the casual encounter seriously. If you are diagnosing or treating, be sure to document. The more challenging question is what to do if you tell your cousin the symptom she’s asking about is probably nothing and she should see her primary care doctor. If you are essentially stating you do not want to play doctor, make a note of it somewhere. Everyone’s memory will fade. Though unlikely to ever be needed, having that piece of paper available later may save you a lot of grief.
I would view such a social encounter as an opportunity to educate my friends (and “friends”) about the risks they’re asking me to take, so well described above. My stock answer would be, with an edge of alarm and concern, “See your doctor as soon as possible.” Let them deal with the anxiety in the meantime.
Burned in California
I enjoy and take to heart the information on your site.
But what about the doctor, who when asked about a medical issue at a party said OK get undressed so I can examine you. Of course he meant in the room with all the guests.
Of course, anything is possible, but I can’t imagine being sued by a family member or friend. Also, if you don’t charge for an encounter, I would think that good samaritan laws would apply. I’m not going to get paranoid when trying to help out a friend or family member. Yes, sometimes I really have to tell them that they need to discuss the matter with their doctor. But I don’t think I’m putting myself at any significant legal risk in providing a 2nd opinion. Anything can happen, but if I were to get worried over every conceivable possible bad occurrence, I wouldn’t drive to work because I might succumb to a fatal accident.
Dr. Desoer:
Thanks for your note. Good Samaritan laws would likely not apply because most encounters are elective and not urgent or emergent.
Next, we like to think friends or family won’t sue. And most of the time they will not. But, friends don’t always stay friends. People get divorced. And the list goes on.
If your advice is associated with a horrific outcome and the friend or family member has fallen on hard times, your risk goes up.
Analogously we all drive, but it’s best not to drive after you’ve been awake for 48 hours.
The point is that giving advice is a medical encounter with a duty of care. Often the advice will be spot on. But, it’s easy to take short cuts and not treat the friend / family member with the formality a true medical encounter deserves. So, I’m not sure the message is don’t ever do a curbside consult for friends / family. The message is be careful of the ramifications of getting it wrong. It’s as simple as saying (and documenting) if your symptoms are not better in 1 week, you must follow up with your family doctor.
Almost no one asks me about a neurointerventional surgical problem, so I have pretty much the ultimate in plausible deniability for curbside consult requests. I can always plead ignorance–and I do just that most of the time. The rest of the time, I side with Dr. Cali above and tell people to see a specialist in what’s worrying them.
Skin lesions? I can diagnose, with some certainty and confidence, uncomplicated acne in a teenager with a greasy complexion. And Oxy-10 is great for that. Anything else for me is a crapshoot. I rarely reassure people with “it’s probably nothing, but…” since I don’t know ~what~ it probably is, other than outside my sphere of expertise. All of which goes to Mr. Plaintiff’s lawyer’s advice to stay within the bounds of what I know. Maybe I’m not typical, but the definition of a “specialist,” i.e., someone who knows more and more about less and less until he eventually knows everything about nothing, definitely applies to me. Maybe it should apply to everyone.*
Good advice, this.
*Of course, the converse also applies, and with the same degree of deniability: a generalist knows less and less about more and more until he finally knows nothing about everything. Each case presents its own division by zero errors, and so needs to be confined to more and more tightly controlled office situations.
I would never have thought it possible that I could be sued by a patient for causing his peritonitis–by doing an uncomplicated nasal septoplasty a couple of weeks before. But I was. And I was forced by my insurer to settle the case, against my previously stated wishes.
That episode taught me that if I have an opportunity to avoid liability, i.e., if it’s not part of my job, I should avoid it like the plague it is. I have only myself to blame if I get involved and then get sued because of my involvement.
I recently had a close friend, a pharmacist, call and ask for a prescription of Tamiflu. She could not get in to her primary and timely treatment was of the essence (must start within 48 hours). The situation was uncomfortable for me for the reasons noted in this post. What I did was to create a chart in my EHR even as I spoke with her, I asked her medical history questions and ascertained that she did have a legitimate exposure and she had typical symptoms. I also ascertained she did not have alarming signs or symptoms necessitating immediate evaluation. I documented this then I prescribed the Tamiflu.
My question is this, was my liability increased because I did not insist on an in person exam? Actually, I did not want her to come in and infect all my immunosuppressed patients. So, could you clarify regarding phone visits (even with patients), is it safe to prescribe or is it best we insist on a visit even in so called low risk situations?
SLNMon:
It depends. Odds are in your favor that all would be well. Now, let’s change a one or two facts. The pharmacist still has flu symptoms – headache. fever, chills, photophobia.
Add one sign: a purpuric rash – that would have been seen on exam in the office.
The pharmacist might not have noticed – or, given the fact she was ill, not described it as significant.
So, now we’ve gone from like influenza to meningococcus – where in treatment, time is of the essence.
Low risk on the phone isn’t always low risk in person. Does that mean all patients need to be examined in the office? No, of course not. That is where judgment plays such an important role.
“Good judgment comes from experience…and a lot of that comes from bad judgment.” Will Rogers
How sad! Once again we allow the big law machine to dictate how we will practice.Defensive medicine is costing billions of dollars. Ambulance chasers rule the airways. Noone ever mentions the legal system as part of the ginormous problem that limits our desire to do anything in this country today.
I have been the “go to” doc since I started practicing some 15 years ago.If I get sued for trying to help Big Al, who would be without his essential blood pressure medicine for the weekend because he couldn’t get in to see his doctor for 5 days, and that doctor refused to call in the prescription without an office visit so that he could get paid, shame on us all!! “Sorry big Al, I can’t call in your BP medicine, go to urgent care or the ER, they will charge you an arm and a leg.” I’ll teach him not to let his BP med run out again without that office visit. Oh, Big Al, our hardest working tech on second floor had a stroke over the weekend? Not my problem?????
I want to help my friends and family and colleagues.That’s the main reason I went into medicine. I must confess that I like them more than many of the dirt bags that I am forced to care for, the “entitled ones”. I am not afraid to give medical advice that is free to my loved ones. I usually know more about their history than the poor family doc that has to see 70 patients a day to survive and has only 7 minutes to spend with my loved one.
Big Med, Big Pharma, Big Law.The system is driven by money and we have lost all common sense.I am ashamed that I have stood by and done little to try to correct the atrocities that go on in medicine today. We are letting the legal system tell us how to do our job. We have not policed ourselves and now someone else is doing that for us. Once again, shame on us.
I’m still laughing at all of the “casual” antibiotic prescriptions I’ve called in for many of my wife’s friends, none of whom are patients of mine. Many thanks for bringing this all too common scenario to our attention.
With the significant turmoil in American medicine, along with many difficulties patients are having seeing physicians, the “casual” requests for curb-side consults will certainly be on the rise.
Eric
Nice article. This is a frequent problem for doctors here in Texas, and I am frankly surprised at how many times it shows up int the State board of Medical Examiners “perp” report. One would think that we would learn by now. So for those who haven’t heard the word, thank you.
I have a question for you. As a resident in general surgery, a mentor once told me, “get paranoid, and stay that way, they really are trying to get you”. Having been in practice for 20 years, and having been gotten before, I see he was very right. Regarding your article, my question, do we have to be paranoid enough to document that we told the friend to come to the office? I have found that people and especially lawyers will lie shamelessly to affix blame to others, in order to not be accountable for their own actions, and especially when they can get money.
Your response is appreciated.
Thanks.
sek
We were traveling in Europe with a group of people I did not know. At the welcome dinner, a lady complained that she was suffering from an allergy and wondered if there was a doctor at the table. As it happened there were two, me and a semi-retired GP. He was about to give her a prescription for the generic combination of a Medrol Dose Pack. The red lights went on in my head like an ambulance chasing attorney.
I politely went over to him and whispered into his ear: “I wonder if this lady has a history of a stomach ulcer or esophageal varices? The cortisone could erode the sides of the ulcer and cause a GI bleed that might mean the end of her.”
He noticeably blushed and asked her a couple of questions about her GI tract. He didn’t ask her if she was an alcoholic (we were at a dinner table of 12 people). He eventually gave her the prescription (He had pads in his pocket, to my surprise). It turned out OK. He seemed very friendly to me during the rest of the trip.
I have treated people on vacations. These usually involved people who had injured their lower legs (in one case seriously), or had previously developed ulcerations and new infections. I helped them purchase dressing materials from local pharmacies and changed the dressings for them, which I am expert at doing. I also prescribed antibiotics. I am now older and wiser. Even though the patients deeply appreciated my treatment, I would never do that again.
Travelers need to purchase travel/health insurance. It is NOT my job to take care of a serious lower extremity infection that could escalate into an osteomyelitis or even worse, while on a trip. These experiences also took (considerable) time away from our vacation activities. I refused any compensation of any kind. I doubt that if a life-threatening infection would occur that I would be “free” of risk of a very nasty lawsuit.
Michael M. Rosenblatt, DPM
Dr. Kasden:
Great question. “…do we have to be paranoid enough to document that we told the friend to come to the office?”
It’s either a good idea to document you asked the patient to come to the office – of, if appropriate, patient agreed to follow-up with the family doctor for this problem (or less optimal, but still common, follow-up with the family doctor if no improvement in symptoms).
I totally agree with the warnings about giving a “curbside” consultation. Many years ago, an emergency room doctor was cleaning his ear with a Q-tip when someone opened a door hitting his elbow and forced the Q-tip through his eardrum. Since he used to call me all the time for advice on patients he was seeing, he naturally came to me for a casual evaluation. He had a perforated eardrum in an area overlying the stapes. He was not vertiginous and a tuning fork exam suggested a conductive hearing loss. Amazingly, he did not have medical insurance, but I told him that he still needed a formal hearing test and an evaluation by an otolaryngologist. I was subsequently sued for “missing” the diagnosis of a perilymph fistula with a resultant neuro-sensory hearing loss. And their expert even said that it was my “responsibility” to make sure that he had the hearing test performed.
I have since become an Expert Reviewer for the Medical Board of California and know that their policy is exactly what has been stated above. One shouldn’t be lulled into thinking that a friend, family member or even an employee won’t sue you. That is totally naive! All of that friendship melts away, and you’d be surprise to see how hostile and “out of character” they can become. On the rare occasion I write an Rx, I have them come to my office for an H&P. In fact, most recently, my hairdresser wanted me to write a “innocent” prescription for Propecia for her brother. I told her that I would have no trouble seeing him in my office and that he would first have to get liver function studies and a PSA. I told her that the medicine can lower one’s PSA and therefore mask prostate cancer. He never showed up!
This happens ALL THE TIME.I can not tell you over twenty years how often,(10-15years ago),I foolishly gave advice,and wrote “scripts”.I WOULD NEVER DO THAT UNDER TODAYS SITUATION.I simply say that THEY ARE WAY TOO IMPORTANT TO ME TO JUST TAKE A GUESS,AND THAT I SIMPLY MUST SEE THEM IN THE OFFICE TO GIVE THEM THE FULL CARE THEY DESERVE.Often,I feel terrible,especially when it is a nurse,but I would not advise anything short of a scheduled visit.
Some malpractice policies will NOT cover you if there is not a chart generated. I actually know a couple doctors who were sued for curbside advice, one by family. If asked it helps to act awkward. If at social event serving alcohol you could say you have already had a couple drinks.
Twice in the past 6 years I have received mail from Health insurance companies about patients receiving presriptions under my name recommending I change my prescribing practice or be awre of poly pharmacy issues. The lists had names of patients I do not see and medicines I generally do not prescribe, pretty easy to figure out as I am a Child Psychiatrist and I do not treat people over 21 very often and do not presribe outside of my field of meds very often. In both incidents I lerned that pharmacies were running scripts under my name when they could not read the handwriting though I always print my full name out and write DEA and NPI number on the script. When I took this up to the state medical and Pharmacy board i was informed that since nothing untoward happened to the patients there was nothing I couuld do about it. The puzzle for me is that there are patients out there with prescription bottles with my name on them as the prescribing physician who I do not see and did not treat and insurance compoanies that believe I am the treating provider and have me on a list of providers they are advising to alter prescribing practice and my own Board and the Pharamcy board does nothing to address this but if I really prescribe without documenting it they will come after me in a heartbeat.
I cannot tell from your post whether these are patients who are using your name to obtain prescriptions or whether the pharmacy is misreading the prescribing doctor’s name as yours.
If patients are writing prescriptions using your name, you can report this to the police. They will take action.
Dr. Staeheli: There are one of two or perhaps both of these situations occurring to you:
1. A local pharmacy is “crediting” your name as a prescriber without verifying if you actually wrote the prescription.
2. Patients are obtaining medications (most likely narcotics) without your permission under your name.
Neither is tolerable. Both situations suggest the need for you to hire an attorney to help you deal with this. The reason for this is that if a death/serious disability occurs with YOUR name on the bottle, YOU are fully responsible.
Your healthcare attorney will help you through the process of “disavowal” of those prescriptions that you are aware of, as well as obtaining a full list of those prescriptions that have been issued under your name, with and without your permission. A subpoena may be necessary and your attorney can draft one for you.
Medical Justice is correct by suggesting you contact the authorities. However, your situation has gone FAR beyond that requirement by now.
Believe me when I tell you that entire careers have collapsed and vast legal bills have resulted from far less egregious situations.
Michael M. Rosenblatt, DPM
As a plastic surgeon, i can’t go anywhere without being asked for advice.
Fortunately for me, it is usually a hypothetical question about a cosmetic procedure rather than about an issue that requires true medical advice.
But just about every family member, friend, and acquaintance thinks my singular purpose in life is to get them a Z-pak for any cough, Ambiens for a long plane trip, Bactrim for a UTI, or Viagra for a much anticipated rendez-vous with a young paramour (in residency it was for Zovirax or Erythromycin following an unfortunate encounter…but i guess it shows how my friends are aging…)
In every case, I pivot and say about the same thing: “I am a plastic surgeon and i have no idea what is now best for that. Just because you’re my friend doesn’t mean you should get lower quality care than someone who doesn’t know a doctor and goes to urgent care.”
That usually quiets them up.
There usually is a “Come on, dude” from the Viagra guys, but i just tell them that i don’t want to be responsible for a heart attack. Or being called a week later to get them a shot of Ceftriaxone.