A Doctor's Legal Duty—Erosion of the Curbside Consultant

Submitted by the author on behalf of the FDCC Medical Malpractice Section.

I. INTRODUCTION

Traditionally, medical malpractice liability has been predicated upon an established physician-patient relationship.[1] A physician-patient relationship is established as the result of a contract, express or implied, that the doctor will treat the patient with proper professional skill.[2] "Generally, the relationship is limited to physicians seen directly by the patient,"[3] and courts have been reluctant to extend liability to specialists consulted informally by the patient's primary physician. Such informal consultationsvariously called "curbside," "hallway," or "sidewalk" consultationstypically involve a "presentation of the patient's history, recitation of the diagnostic test results obtained to date and discussion of potential avenues of treatment for this patient and others with similar symptom[s] . . . ."[4] Usually, the specialist does not know the patient's identity, the patient is unaware of the consultation, and the specialist does not bill for his or her advice.[5] In the past, such informal consultations would not establish a physician-patient relationship as a matter of law.[6]

Increasingly, however, courts are allowing medical malpractice suits to proceed against specialists consulted informally by a patient's primary doctor, either to decide the preliminary question of whether a physician-patient relationship existed or, having made such a determination as a matter of law, to decide further whether the resulting duty of care was breached by the consultant physician. In that regard, several cases have turned on whether the consultant went beyond giving general advice to participating actually in the patient's care. Some results were premised on whether a preexisting contract between the consultant physician and the hospital created the requisite physician-patient relationship. Several others were based on whether the consultant's expertise made it "foreseeable" that the treating physician would subordinate his or her own medical judgment in reliance on the consultant's opinion. In review, these cases reveal a discernible shift away from the longstanding policy that favors physicians' expectations over those of patients when determining whether a particular physician owed a duty of care to a particular patient. Consequently, physicians who entertain what are otherwise informal discussions about the management of patient complaints and illnessesusually considered a protected professional domainmay be at greater risk for medical malpractice liability.

II. CONSTRUCT OF A PHYSICIAN-PATIENT RELATIONSHIP

"Medical malpractice developed as a theory of liability discrete from common- law negligence, imbued with both contract and tort principles."[7] Furthermore, "the duty to refrain from negligently injuring others [generally] requires no prior relationship."[8] "By contrast, professionals do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter in the course of the day."[9] Thus, "the duty to treat a patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice."[10]

1. Establishment of a Physician-Patient Relationship A physician-patient relationship is a consensual relationship whereby a patient "knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient."[11] If a physician diagnoses, treats, or prescribes for an ailment, the physician is obligated to possess and use skill and care, independent of an express agreement of employment or promise to pay for services. [12] Further, a physician may be held responsible for negligence or lack of skill when "any act is done, or advice given, that may reasonably be construed [as] indicating" that the physician actively entered employment.[13]

2. Standard of Care Necessary to Establish Medical Malpractice

   Under the rules of ordinary negligence, the prevailing standard of care is defined to encompass "what a reasonably prudent person would do under the same or similar circumstances;"[14] in other words, whether injury to another was reasonably foreseeable under the circumstances. In contrast, "[t]he standard of care demanded in medical malpractice cases requires skills not ordinarily possessed by lay persons."[15] Therefore, expert testimony by other physicians is required to prove such claims.

   In the past, courts explicitly have rejected the contention that the foreseeability of harm occasions a duty of care in medical malpractice cases. Rather, they have considered "foreseeability" as applicable only to measuring the scope or extent of the duty of care -- a duty that arises solely on the basis of an established physician-patient relationship.[16] This common law distinction between principles of ordinary negligence and medical malpractice thus holds major implications for determining whether a specialist consultant can be liable for medical malpractice in the absence of a physician-patient relationship, especially with respect to whose expectationsthose of the doctors or the patientsdetermine whether a particular physician owes a duty to a particular patient. Extending the concept of "foreseeability" to the issue of duty significantly increases the risk of consultant liability when it stems from discussions with another physician about a patient's medical management.

   III. HISTORICAL PERSPECTIVE OF HEALTH CARE CONSULTATIONS BETWEEN PHYSICIANS

   Courts traditionally have been unwilling to recognize the existence of a physician-patient relationship in the context of informal consultations between treating physicians and specialty consultants.[17] Two public policy arguments generally are advanced to support this posture: (1) the chilling effect such a finding would have on the free flow of information between professionals, and (2) the treating physician's ultimate control over the patient's care. This traditional approach clearly favors physicians' expectations over those of patients when determining whether a duty of care is owed in the context of informal consultations between physicians.

   In Rainer v. Grossman,[18] the court found both of these arguments persuasive in affirming summary judgment for the defendant. As support for the first argument, the court noted that the exchange of information between doctors contributed to their education, thereby providing "great social benefit." [19] The court further noted that the "case method" of instruction would "become unwieldy if the expert were required to personally examine the patient and in effect accept that patient as his own prior to embarking on any discussion of the case." [20] To support the second argument, the court found that the treating physicians were not under the defendant's direction or control, noting that the defendant was "entitled to assume that these doctors were cognizant of the circumstances under which the various cases were discussed, i.e., without defendant having personally examined the patient, and would themselves in dealing directly with their patients rely on their own ultimate opinions following proper medical procedures." [21] The court summarized its rationale a follows: "Imposition of liability under these circumstances would not be prophylactic but instead counter-productive by stifling efforts at improving medical knowledge." [22]

   Similarly, in Oliver v. Brock,[23] the court founded the non-existence of a physician-patient relationship on facts indicating that the defendant physician had never seen the plaintiff as a patient and had never been engaged or asked to serve as a consultant in her treatment.[24] One of the treating physicians stated that he had called the defendant physician on the telephone about "another of his patients and, during the course of conversation, described generally the injuries suffered by [the patient] and the type [of] treatment he was administering to her." [25] He further alleged that he never disclosed the patient's name, that the conversation was "completely gratuitous" on the defendant's part, and that he did not attempt to employ the defendant to care for or treat the patient.[26] On this basis, the court affirmed summary judgment in favor of the physician.[27] A concurring opinion justified that determination:

   The mere discussion between professional people of hypothetical situations cannot be viewed as a basis for liability. To hold otherwise would tend to adversely affect the quality of the services they offer to members of the public. Physicians, lawyers, dentists, engineers, and other professionals, by comparing problem-solving approaches with other members of their disciplines, have the opportunity to learn from one another. Possessing this freedom, they are better positioned to bring theory into practice for the benefit of those whom they serve. Our decision in this case preserves these essential learning situations for all professional people.[28] Likewise, the court in Hill v. Kokosky[29] found no physician-patient relationship where the defendant physicians gave their opinions about the patient's condition based on the case history the treating physician provided over the telephone, the treating physician did not refer the patient to either defendant, and neither defendant contacted the patient, examined her, or...