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Medical bulletin boards and blogging sites caught fire about a recently decided case in Minnesota, Warren v. Dinter.
This glaring headline noted that the essential law underpinning a medical negligence claim – that a doctor-patient relationship must exist for a plaintiff to prevail – was overturned. Generally, a physician owes no duty to a patient without a physician-patient relationship. Without a physician patient relationship, with no duty owed, there is no liability for “breach” of that nonexistent duty. Medical bulletin boards and blogging sites concluded that now a doctor can be held liable for malpractice even if there is no physician-patient relationship at all.
Doctors are understandably very concerned over this. The implications for medical practice if that were true would be devastating – any doctor could actually be liable to any patient for, well, anything.
However, that is not what the case said.
Let’s therefore take a look at this and get the legal issues straight because, in actuality, nothing changed at all and the bedrock requirement of a physician-patient relationship in a malpractice action is unchanged.
Dinter is a case that shows just how important it is to know how that relationship can still form when you never see the patient.
In this case, a patient saw a nurse practitioner for abdominal pain, fever and chills. The NP found that the patient had a high white count and so suspected an infection. The patient also had an elevated blood glucose. The NP tried to get the patient admitted to the hospital, a process which required vetting the case with a hospitalist. The hospitalist attributed the patient’s symptoms to diabetes and refused hospitalization. The patient subsequently died from sepsis caused by an untreated staph infection. Her family sued both the nurse practitioner and the physician for medical malpractice.
The hospitalist sought Summary Judgment to be released from the case and a lower court granted it. Summary Judgment is a type of judicial relief that is based on the evaluating court holding that a trial need not go forward because there are no issues to be tried. In this case, although the hospitalist blocked the admission, the lower court nevertheless considered that he was only giving his “thoughts”, treating his interaction with the NP as a mere informal curbside consult provided as an act of professional courtesy. It therefore determined that no physician-patient relationship existed, and no duty of care accrued. Accordingly, the case could not be maintained against the hospitalist.
The appellate court, though, applied what is the black letter law correctly:
“To be sure, most medical malpractice cases involve an express physician-patient relationship. And a physician-patient relationship is a necessary element of malpractice claims in many states. But we have never held that such a relationship is necessary to maintain a malpractice action under Minnesota law. To the contrary: when there is no express physician-patient relationship, we have turned to the traditional inquiry of whether a tort duty has been created by foreseeability of harm.”
The key word here is “express.” It is not that there was no relationship – there was not an express relationship created by a direct agreement between the doctor and the patient; however, the relationship could still be found in an implied fashion.
This, then is the critical holding:
“A physician owes a duty of care to a third party when the physician acts in a professional capacity and it is reasonably foreseeable that the third party will rely on the physician’s acts and be harmed by a breach of the standard of care.”
In this case the patient was reliant on the hospitalist’s decision. A failure by the hospitalist to adhere to the Standard of Care in carrying out his assessment inevitably harmed the patient.
The distinction from a curbside consult was also made:
“Our decision today should not be misinterpreted as being about informal advice from one medical professional to another. This case is about a formal medical decision – whether a patient would have access to hospital care – made by a hospital employee pursuant to hospital protocol. We decide only that hospitalists, when they make such hospital admission decisions, have a duty to abide by the applicable standard of care.”
For your own protection, the critical element is therefore knowing if what you say will be relied on in determining the patient’s care.
A good example of this principle is a case from New York. There, an ER physician who was treating a patient with chest pain and elevated cardiac enzymes spoke with a cardiologist who concluded the patient could be released. The patient had an MI three hours later at home. In that case the cardiologist was denied dismissal from the lawsuit because the court found that an implied physician-patient relationship arose in this setting. The cardiologist knew that the ER physician was relying specifically on his advice.
In Dinter, the notation of “hospital protocol” is also one to keep in mind. The hospitalist had a contract to accept calls from off-site practitioners and to make evaluations on admission. This is analogous to the situation of being on-call for your specialty for the ER under your privileges agreement – you may never see the patient but your contractual obligation to cover for all comers during the on-call interval creates the relationship, which then gives rise to the duty of care.
The holding that denied Summary Judgment – so the hospitalist continued as a defendant- was therefore not new law at all. The Court noted that an implied relationship underpinning a duty of care had a 100-year history in Minnesota’s jurisprudence and that this was only a case of first impression as to hospitalists and was otherwise “not in the least novel.“
So, in summary, don’t get upset that a judge just made you responsible for any random patient because that is not what happened. The analysis of whether a physician-patient relationship exists – creating a duty owed to a patient – followed a long-standing legal tradition. Keep in mind when a patient or practitioner foreseeably relies upon your wisdom in a consult you may incur liability. Also, if you are doing contractual call in an ER, you owe a duty to the patient, even if you never meet them…just as you always have.
Medical Justice Notes: [The key in determining whether another practitioner may be putting you in the crosshairs is whether that individual is foreseeably relying on your words. Think about it. They are calling you for a reason. It’s not an academic discussion. It’s a discussion about a particular patient. So, be careful with curbside consults. You have to divine whether the person seeking your advice will put your thoughts into action. And by the way, even if there’s a small chance someone will rely on your words in a curbside consult, document your version somewhere. The other provider is documenting his version.
Next, and related to the Dinter case, if you rely on a protocol to deny admission, and the protocol as applied to the case is wrong – meaning the patient is injured – your application of the protocol may not afford a great defense. In some cases, following a protocol applied correctly – with a bad outcome – will help you. Here, a diabetes protocol applied to sepsis was not helpful to the hospitalist. A sepsis protocol applied to this patient might have worked, though. Let us know your thoughts below.]
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“A call from the ER is a call to see the patient.” This is what our residency Chairman advised (demanded). A call from the NP is a call to see the patient. The NP should have advised the patient to disregard advice and go to the ER. Thank you.
If anything was in writing, this is a o-brainer. If nothing is in writing, it can become he said/she said. In the immortal words of Samuel Goldwyn, “an oral contract isn’t worth the paper it’s printed on.”
In this case, it seems that Dr. Hospitalist isn’t saying that he didn’t advise against admission, so it’s a bit different. To paraphrase a slightly different issue, he seems to have been “economical with” due diligence: fever, chills, increased WBCs, and a hard abdomen? Go home? Really?? And a court said, that’s OK? Bad court. Good lawyer, though, who probably won’t be sending his family to see that doc.
Any gatekeeper who stands in the way of an emergency hospital admission should be aware of their responsibility.
If I were evaluating this case, based upon a system of chart audit I invented called Digital Chart Audit(TM), I would add up the “points” in the chart notes that ascribed to “risk of fulminating illness”.
I never saw this chart. But based upon the lab/diagnoses factors and risk factors exacerbated by non-admission, it looks like there is some real EXPOSURE to the hospitalist.
You can talk about protocol until the cows come back from pasture, but as soon as you add factors of, say expense or trying to reduce non-paying hospital admissions, you are on dangerous ground.
We don’t know about these factors, but if I were a betting man, I would put odds on the patient being on Medicaid.
Michael M Rosenblatt, DPM
I have a similar reaction when HMO reviewers try to take discussions about refusals of care for patients “off the chart” in private e-mails not attached to the patient’s chart. I tell the reviewers (be they physicians or RN’s) that while I appreciate why they don’t want their words in the patient’s chart, their actions affect the patient’s care, so I will cut and paste their “private” notes regarding denying patient care into the patient’s chart. Just because you don’t see a patient doesn’t mean that your decisions can’t harm a patient. Anyone who has the power to make decisions affecting patient care needs to take responsibility for those decisions. Even though they feel removed from the patient, their decisions can have substantial effects on patients’ lives.
Despite all the legal obfuscation this is a pretty simple case. I made a diagnosis of an acute abdomen with secondary diabetes out of control by reading the presentation. We all know the only reason the hospitalist did not admit the patient is because he was not in the mood to take care of the patient. Either he was overworked, or too tired, or whatever, that’s the only reason. As mentioned above I have been told many many times taking ER call create an implied doctor patient relationship. I agree this is a similar scenario. I love the above comments by Dr. Desoer. I am going to do the same thing with my reviewers.
I used to teach residents that if a nurse (nurse practitioner or not) called about a patient there was one and only one rule to follow based on the old TV show 1 Adam 12.
1 Adam 12, 1 Adam 12 SEE THE MAN!
There will be physicians that disagree. But what I taught the residents is that by not seeing the patient they were substituting the nurses judgement for their own. Then as now, nurses do not have the same level of education training and experience that a physician has. Therefore the physician by not personally evaluating a patient was denying that patient their superior knowledge and ability. They went to school and residency to apply that knowledge to do so. Even if it was 3AM, better to see the patient and forestall a mess, then let a mess unfurl that would come back to bite them.
One other caveat. Physicians never read nurses notes. But the nurses notes will sink a malpractice case when it is documented that they called the physician and the physician never even bothered to see the patient.
Laziness in not seeing a patient for 15 minutes even if at 3AM in the morning can lead to 3 -5 years of misery with a malpractice case.
Retired makes an interesting point about physicians who REFUSE to come to see a patient, even though they have a contract with the hospital for coverage. It happened to me.
My mother had severe dementia over many years and when she was in a nursing home, she was forced to leave because she was assaulting other residents physically. I got a call from them demanding I come and pick her up immediately.
I asked that she be transferred to the local hospital ER for psychiatric evaluation and to be appropriately medicated. I hired an ambulance for this and she was transferred. She was put into a locked room and she started screaming and hitting the door.
The hospital ER doc called the psychiatrist on duty to come to evaluate her. He refused. A social worker (bless his soul) took on the responsibility and did see her. But he was unable to prescribe for her. I don’t know why the ER doc did not.
I called up one of my surgical center employees, a master’s level RN who had eldercare experience, and she “stepped up” to take over. She had Mom transferred to a psychiatric hospital for 3 weeks. She advised me NOT to visit my mother.
She was eventually transferred to another nursing home. Finding one was not easy. Elderly people who pose a threat are not usually accepted.
I assume that the psychiatrist who refused to see her did not want to be assaulted. I don’t fault him for that. I never issued a complaint to the medical association/hospital, although I could have.
To this day I treasure this nurse who took over for me and the wonderful social worker. I had professional people who were my “resources.” Most people do not.
This was obviously a difficult time for me and my family. We depended on physicians and the one I most needed turned his back.
Michael M. Rosenblatt, DPM
Well you can beat a dead horse all you want, but the state of Physicians in this country aside from some specialists is deplorable, psychologically, and many times financially. The problem is a system problem.
This was a Nurse Practitioner, not a nurse. And Physicians should read nurses’ notes, it would have saved a morbidity and mortality review if the ED physician had read a nurse’s note in a case at my facility.
First, Dr. Rosenblatt, I am so sorry for the experience your mom, and, therefore, you and your family went through. In my mind that is inexcusable. If the on-call psychiatrist didn’t want to see a patient, IMHO, he’s in the wrong field.
On a slightly different note, regarding curb-side consults: This also applies to “dinner-consults,” “party-consults,” and any other consults relatives and strangers wish to subject us to. We all need to bear in mind that as soon as someone says to us (no matter where we might be), “Doc, what do you think of this?” we’ve got us a doctor-patient relationship and are liable for anything that might arise if we are foolish enough to offer any advice – other than, “You should really see someone (else) about that.”