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.