Notes from a Plaintiff Attorney: When is a patient my patient? … The formation of the physician-patient relationship

by “Dr. J.D.” – a physician and plaintiff’s attorney, practicing in the Northeast

The point at which the physician-patient relationship forms is fundamental to all medicolegal liability.

It is the point at which the physician’s duties to treat the patient according to the standard of care, to obtain informed consent and to provide continuity of care all attach.

It is therefore also the point at which liability for medical negligence, medical battery, and abandonment can also attach.

“When is a patient my patient?” is therefore a critical question.

It has a deceptively simple answer: The physician-patient relationship begins when the physician accepts, agrees to accept, or undertakes to render care to the patient.

Of course, in real life the points at which those events have actually taken place are often not clear-cut at all.

Courts and medical boards have evaluated the situation in two ways – a contract-based approach and a tort-based approach.

Under the contract approach, there should be evidence of mutual consent. The patient demonstrates consent to the relationship by seeking medical services from the doctor and the doctor demonstrates consent to it by diagnosing, treating, or otherwise providing care to the patient.

Under the tort approach, the physician-patient relationship is seen as a special relationship arising out of the responsibility of one person – the doctor – to act on behalf of, and in the best interests of, another – the patient.

However, when the two approaches are looked at a bit more deeply they are seen to be fundamentally the same because an implicit aspect of a special relationship is that it is consensual. In other words, the party to whom the duty is owed – in this case, the patient – authorizes the party who owes that duty to act on their behalf, and the party who owes the duty – in this case, the doctor – voluntarily assumes that responsibility.

The real issue therefore comes down to what acts by the doctor or patient convey such an agreement that the relationship be formed.

In the case of the patient, it is seeking care directly or entering a system in which care will be provided.

In the case of the physician, the situation is, as noted above, more complicated because of the varying ways that a doctor can become involved in a given case.

Further, because the patient is regarded as the inherently vulnerable party, courts and medical boards will give great weight to the reasonability of the patient believing, based on the doctor’s conduct, that he or she was, in fact, their doctor.

Let’s therefore look at practical situations to see how they would be analyzed, with an eye both to the consent elements and what a patient may rely upon.

 

I. The first situation is the one in which you never meet the patient.

1. If I formally render an opinion on a patient but never meet them, have I established a physician-patient relationship with them?

Yes.

This would typically apply to consulting physicians such as radiologists and pathologists who never meet the patient personally.

It would also apply to any physicians who consult via tele-medicine as well as to on-call and covering physicians who render an opinion on a patient over the phone without examining them.

The predicates for the relationship are :

– that the patient will be aware that you are involved in their care, even if they never meet you and even if they do not know you by name, through the actions of their primary physician who orders testing or seeks consultation on their case or engages a covering doctor for his or her practice, and they show consent to that by agreeing to enter those situations

and

– that you, as the doctor, have accepted to become actively involved in the care of the patient.

Consent to the relationship is therefore evinced by both sides.

 

2. If I informally consult on a patient whom I have never met, have I established a physician-patient relationship with them?

Generally, no.

“Curbside consults” do not actually bring you into the scope of the patient’s care as a participating physician. They therefore do not establish the relationship because your consent to it is lacking.

However, you need to be careful how far you go in these matters.

For example, extensive phone discussions with a colleague about a case or that colleague documenting in their notes that your ideas were solicited, and may even have been determinative in the ultimate medical decisions, can bring you into what a court or medical board will view as a physician-patient relationship.

You will be seen as consenting to render care – albeit indirectly – to the patient, and your role will be seen as the same as that of a formal consultant.

Therefore, the patient would be viewed as giving consent to the relationship because they know that their primary doctor may be soliciting help with their care, and you would be seen as giving consent through a degree of involvement that had ceased to be casual.

That you did not personally bill the patient, and were actually not paid at all for your contributions to the patient’s care, would be irrelevant to that analysis.

Therefore, if an informal request from a colleague turns into an increasingly serious involvement in the case, you must instead request that a formal consultation be set up under which you can fully examine the patient and have access to the records and can enter your conclusions and recommendations into the chart in your own words. If you are going to be held liable as a de facto treating physician then you need to be able to conduct your involvement as an actual treating physician.

 

II. Now let’s look at the situation where the patient is dealing with you directly:

1. If I deal with the patient personally in my capacity as a physician but do not render medical care to them, have I formed a physician-patient relationship?

It depends on what the nature of the contact was.

Administrative facilitation of services by another physician is not enough to form a physician-patient relationship.

This would apply in situations such as an ER physician who is told by a patient that they have a private physician who will be coming in to care for them, and who then merely makes a call to that doctor to let them know that their patient has arrived at the ER.

In that case, neither you nor the patient shows any consent to a physician-patient relationship forming.

On the other hand, even if an examination is not performed, a physician who undertakes to fill out a medical form for a patient so that they can access services from another practitioner or from an agency or from an insurer will be seen to have acted as their physician.

In this case the patient showed consent that you act in the capacity of a physician for them by filling out a form that only a physician may complete, and then you consented to take that role on by doing so for them.

 

2. Is it possible for a physician-patient relationship to be created with someone who is entering my practice, but whom I have not seen yet?

Possibly.

A court or medical board will look at how far the person actually entered your practice if they did not actually reach you in determining whether they could reasonably rely on having become your patient.

The person’s consent to becoming your patient would be demonstrated by arriving for the appointment and signing in.

That alone, however, is not enough. In an illustrative case, a blind woman who arrived for her first appointment and signed in but was then asked to leave because of her guide dog was deemed to have not yet formed a physician-patient relationship when she later sued for malpractice due to the worsening of the illness that had brought her to the doctor.

Beyond that initial step, the relevant issue would be the extent to which their contact with your office became less generic and routine and more intrinsically linked to medical care.

Therefore, filling out their own history/chief complaint form for your staff might be enough and being examined by your nurse or PA would definitely be sufficient. The conduct of your staff in accepting the medical form or in doing the examination would serve as evidence of consent that the person continue forward in their interactions with the office in the role of a patient, evidence that that person could then reasonably rely upon.

There are also two other specific factors that can create the physician-patient relationship before you actually meet the patient:

– Whether the patient is in need of critical care.

An example of this would be a new patient with an appointment for a routine intake but who arrives having increasing chest pain.

In this type of situation, you are bound to all duties of due care until the situation is resolved or alternate care is obtained for the patient.

This is a situation that is outside the consent / reasonable reliance analysis that we are using elsewhere. It is based on the need of the patient and goes back to the law seeing the patient as inherently vulnerable.

– Whether you accepted to see the patient on referral.

In this type of situation your acceptance of the referral from your colleague is your consent to the relationship. That it was delivered to your colleague and not directly to the patient is irrelevant.

Note, however, that these two situations only mean that you cannot summarily turn the patient away and that in what care you do render you are bound to appropriate duties. It does not mean that you must retain them permanently. You can still discharge them from your practice under standard termination procedures.

 

3. Once I have dealt with someone medically, has a physician-patient relationship formed?

Yes, if that person can reasonably conclude that your actions were ones that showed that you were willing to be their doctor.

They have obviously already consented to the relationship by their acceptance of you diagnosing or treating them and the fact that you did engage in such diagnosis or treatment will be presumptively held to be your consent.

It is therefore essential that if you do not want a physician-patient relationship to be automatically created whenever you provide medical advice or care that you take specific steps to prevent your actions from being seen as evidence of your consent to the relationship forming.

(i) Ensure that your office makes it clear in the first contact (phone call or e-mail) with the prospective patient that the initial visit – specifically including being seen by you – is for the purpose of evaluation only.

The prospective patient should then sign a form to that effect when they arrive for the appointment.

This precaution will also deal with the situation described above in which contact with members of your staff could underpin the relationship.

(ii) Do not prescribe for anyone whom you have not seen yet.

If someone asks for a prescription “to tide me over until I see you the first time” they should be told that they must contact their prior physician for any such.

This is particularly important because great weight is given by courts and medical boards to prescribing as proof of an intention by the doctor that the relationship should continue.

(iii) If you do limited examinations like insurance physicals or school screenings, or if you volunteer at health fairs, participate only under an explicit disclaimer that such conduct does not create an ongoing physician-patient relationship.

(iv) If you participate in web-site discussions in which you provide medical expertise, limit that involvement to sites that have an explicit disclaimer that such conduct does not establish a physician-patient relationship.

Note: One critical caveat to remember in all of these situations is that even if the physician-patient relationship does not form, your duty of confidentiality under both common law and HIPAA still applies. Therefore, the fact that you saw the patient at all and any facts that they may have revealed to you about their health are to be appropriately shielded. You should therefore make sure that your staff treats information about patients who did not enter your practice with the same care as they do comparable information about active patients.

It is also essential that you avoid ambiguous situations in which you act informally as a physician.

(i) Do not permit anyone who is not actually your patient to use your name as a convenience if they seek care elsewhere, such as at an ER.

(ii) Do not fill out medical forms as a courtesy for non-patients.

(iii) Do not examine non-patients or prescribe for them.

 

III. Finally, let’s look at situations in which an agreement separate from the one directly between you and the patient is involved – your contract with a group or with a payor.

1. If I am employed by a group, do I have an immediate a physician-patient relationship with all the patients in the group?

No.

You would have to have actual medical contact with the patient for the relationship to be created as to you personally.

You could be subject to vicarious liability for misconduct relative to a group patient whom you have not treated personally if you are a partner or have some other liability-sharing agreement with your group, but that would not arise from the physician-patient relationship. It would be based on your relationship with the group.

 

2. If I am an independent contractor to a hospital or medical office, do I have a physician-patient relationship with patients I deal with there?

Yes.

The patient has obviously consented to medical care by presenting at the facility, and the fact that they have no choice in your assignment as their physician means that they do not have to expressly consent to you personally serving in that role. For your part, you have provided medical care, which is evidence of your consent to act as their physician.

The patient may therefore reasonably believe that you are their doctor, and that you actually are employed by an outside source does not alter that. In fact, the patient has no responsibility to inquire about the technicalities of your employment at all.

 

3. If the patient is enrolled in a managed care plan that I accept, does that itself create a physician-patient relationship?

No.

Your mere presence in a physician pool available to the patient does not establish a relationship with that patient.

 

4. If the patient selects me as their physician and I begin receiving capitated payments based on that, does that create a physician-patient relationship even if I have not yet seen the patient?

Possibly.

Courts are increasingly finding such conduct to be a basis for a relationship to have been created.

It is therefore essential for you to review the contractual terms for any managed care payors that you are considered associating with to see what duties you will be held to under them.

In summary: The physician-patient relationship is the foundation of your duties as a doctor, and therefore of your potential medicolegal liabilities as well. In determining if a physician-patient relationship is present, the law will look to such factors as the extent of a patient’s involvement with your office and the extent of your own provision of medical care to them, as well as any relevant payor involvement. You can take practical steps to avoid being inadvertently brought into such a relationship.