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Not your patient? You can still be sued for malpractice


"It is prudent for providers to know the law of the jurisdiction where they practice and any applicable policies surrounding consult and documentation," advises Brianne Goodwin, JD, RN.

A recent state Supreme Court decision in Minnesota has cast a broad definition of when a legal duty applies to a provider, and therefore, perhaps broadened the range of circumstances under which a physician who has no patient-physician relationship might be sued.

In Warren v. Dinter, the patient sought medical care for abdominal pain, fever, and chills, among other symptoms. She was evaluated by a nurse practitioner (NP). Her lab results demonstrated an elevated white blood cell count, and the NP suspected an infectious process. The NP placed a call to the local hospital to discuss admission with the admitting hospitalist.

During this conversation, which lasted approximately 10 minutes and during which the admitting hospitalist was unable to view the patient’s medical record, the decision was made by the hospitalist to not admit the patient. Her symptoms were attributed to her diabetic condition and outpatient follow-up was recommended. The patient died 3 days later of an untreated staph infection (bit.ly/mmaarticle; bit.ly/gislasonhunterarticle).


Suit brought against NP, hospitalist

The patient’s son brought a medical malpractice action against both the NP and the hospitalist. The trial court granted summary judgment to the defendants, and the Minnesota Court of Appeals affirmed the decision, holding there was no duty of care owed by the hospitalist because there was no physician-patient relationship. The hospitalist had only spoken to the NP by phone and had not seen the patient. The Minnesota Supreme Court overturned the lower court rulings, stating in part that it had “never held that such a relationship is necessary to maintain a malpractice action under Minnesota law” (bit.ly/gislasonhunterarticle) and applying a foreseeability standard.

Also by Brianne Goodwin, JD, RN: Why physician testimony is so important

As it pertains to foreseeability, the Court stated: “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” (bit.ly/warrenvdinter).

In fact, the first line of the decision reads: “A physician-patient relationship is not a necessary element of a claim for professional negligence. 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” (bit.ly/warrenvdinter).

The Court highlighted a few points in coming to its conclusion (bit.ly/gislasonhunterarticle):

  • The NP did not have admitting privileges, and it was the hospitalist’s sole duty to make decisions around patient admission.

  • The hospitalist knew or should have known that the decision to admit or not would have been relied upon by the NP and her patient.

  • The hospitalist knew or should have known that breach of the standard of care could result in harm.

  • The Court repeatedly referred to the hospitalist in this case as the “gatekeeper,” distinguishing him from a “curbside consult” in that the hospitalist was the individual with the sole authority to make a decision around hospital admission (bit.ly/warrenvdinter).

Although this case pertains in detail to primary care and internal medicine, it can easily be extrapolated to other areas of medicine, urology included, and offers a good opportunity to revisit issues surrounding curbside consults, documentation, applicable hospital and insurance carrier policies and guidance, and legal differences between jurisdictions.

Next: ‘Curbside’ vs. formal consults‘Curbside’ vs. formal consults

For example, a small study from 2013 looked at the accuracy and completeness of curbside consults versus formal consults (J Hosp Med 2013; 8:31-5). With a sample size of 47 patients getting both curbside and formal consults, information was either inaccurate or incomplete in 24 of 47 of the curbside consultations. Management advice after formal consultation differed from that given in the curbside consultation for 28 of 47 patients. Lastly, when inaccurate or incomplete information was received, the advice provided in the formal versus the curbside consultation differed in 22 of 24 patients, a statistically significant result.

Many hospital and insurance carriers have either policies or guidance around curbside and formal consults, and documentation of these. Given that jurisdictions differ in how the physician-patient relationship arises, it is prudent for providers to know the law of the jurisdiction where they practice and any applicable policies surrounding consult and documentation.

Read: Diagnostic errors still top driver of claims

Minnesota and a handful for other states fall into the “minority view,” in that a physician’s duty is not tied to personal contact with the patient. Despite that, and given the ever-changing communication landscape and the use of technology in medicine, close introspection of personal practice may be worthwhile to ensure your practices align with what your state and medical facility or organization permit.

Between text messaging, emails, phone calls, and electronic medical record portal messaging, plenty of communication about patients occurs outside of the exam room. Protect yourself by knowing the law in the state where you practice and what your insurer or counsel’s office recommends when it comes to your duty as a consultant, whether formal or informal.

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