EMAIL TO A FRIEND COMMENT

 

On-Call Doctor’s Phone Conversation Does Not Establish Physician-Patient Relationship


A woman presented at an emergency room complaining of back pain. A resident in the emergency room called the defendant neurologist on-call. The defendant neurologist understood this conversation to be a request for advice, not a request to see the patient or otherwise become involved in the patient’s care. The defendant advised the resident to admit the patient to the hospital for pain management. The patient was admitted to the hospital by her primary care doctor. The primary care doctor consulted a different neurologist, who had previously treated the patient.

 

Five days after the patient was admitted to the hospital the patient had still not been diagnosed, so the primary care doctor called the defendant neurologist. The defendant neurologist examined the patient that day, diagnosed her with cauda equina syndrome, and immediately operated to remove pressure on her nerves. The surgery was successful, but the delay between the onset of the pressure and its removal resulted in substantial damage to the nerves controlling her legs and her bladder and bowel functions.

 

The woman sued the hospital, the defendant neurologist, and the neurologist with whom her primary care doctor consulted initially. Her claims against the hospital and the neurologist with whom her primary care doctor consulted initially were settled. The only remaining claim was against the defendant neurologist.

 

The plaintiff claimed that a physician-patient relationship existed between the patient and the on-call neurologist, based on the emergency room resident's telephone consultation with the defendant neurologist and the defendant’s advice to admit the plaintiff for pain management. The plaintiff filed a motion for a directed verdict on the issue of whether the defendant entered into a physician-patient relationship with the plaintiff at the time of the telephone consultation with the ER resident. The trial court declined to direct a verdict in plaintiff’s favor on this issue. The jury instruction included the phrase, “showing an intent to participate in the diagnosis, care or treatment of the patient.” The plaintiff objected to this jury instruction. The court overruled this objection and submitted the instruction to the jury. The jury found in favor of defendants.

 

The Court of Appeals reversed, holding that the only conclusion that the jury could have reached on this record was that a physician-patient relationship existed at the time of the telephone consultation with the ER resident. The Court of Appeals found that the defendant impliedly consented to enter into a physician-patient relationship when he advised the resident to admit the plaintiff for pain management and the defendant was acting in his capacity as an on-call physician, so his advice was a diagnosis directed to a specific patient. The Court of Appeals concluded that because the defendant had formally undertaken to diagnose the plaintiff, he had entered into a physician-patient relationship with her.

 

The Supreme Court of Oregon reversed the court of appeals and affirmed the trial court’s decision to decline to direct a verdict in plaintiff's favor on the question of whether defendant entered into a physician-patient relationship with plaintiff at the time of the telephone consultation with the ER resident finding that this was a question for the jury. To determine whether a physician who has not personally seen a patient has a physician-patient relationship with that patient the standard is whether the physician either knew or reasonably should have known that he or she is diagnosing a patient's condition or treating the patient.  However, the court held that the jury instruction stated a higher level of intent than was necessary, which is not harmless error. The court reversed the trial court’s determination on the issue of the jury instructions and remanded for a new trial.

 

See: Mead v. Legacy Health System, 2012 WL 3039124 (Or., July 26, 2012) (not designated for publication).

 

 

REPRINTS & PERMISSIONS COMMENT