In caring for patients in the Emergency Department (ED), the emergency physician (EP) will often utilize consulting specialists and pharmacists. In the event of an untoward patient outcome, disagreement may arise regarding the liability of each provider. Here, we review a series of malpractice cases involving consulting physicians and pharmacists to illustrate the legal principles of physician-patient relationships and physician duty. Determination of liability in the courts will rest, in part, on whether a physician-patient relationship was formed via an “affirmative act”. Consulting physicians may establish a relationship through an overt or implied agreement to participate in a patient’s care, or by reviewing specific tests and studies for the purpose of diagnosis and treatment. The courts have defined the duty of the pharmacist to safely dispense medication, and have ascribed the duty to warn of medication side effects to the prescribing physician.
In caring for patients in the Emergency Department (ED), the emergency physician will often utilize consulting specialists and pharmacists. In the event of an untoward patient outcome, subsequent disagreement may arise regarding which provider maintains liability. Determination of liability in the courts will rest, in part, on what particular duty the consultant or pharmacist has toward the patient. Also, the relationship of the professional to the patient is critically analyzed. A physician–patient relationship is broadly defined as an affiliation in which the patient seeks care, and the physician agrees to provide care. The patient, in essence, says directly or via a representative, “I want you to take care of me,” and the physician agrees via an “affirmative act.” This affirmative act is a clear expression of intent to participate in a patient’s care. When a physician takes an affirmative action to treat a patient, the physician’s consent to establish a physician–patient relationship can be implied. In essence, the professional is implying, “I agree to take care of you.”
The creation of the relationship is the physician’s agreement, to an overt or implied request, to become responsible for the patient’s care. In the ED setting, consultants may be involved peripherally or indirectly, and the circumstances by which a physician–patient relationship is established may be less clear. It may be difficult to determine whether the consulting specialist knowingly attempted to provide care for the patient or the patient knowingly sought care from the physician. It is important for providers to recognize their legal exposure in various professional relationships. The following malpractice cases, involving ED and other specialty physicians, demonstrate how liability is determined by the courts. The overriding key concept is whether a provider–patient relationship has been established. Similarly, we will also explore the relationship between pharmacists, patients, and physicians, using representative cases that clearly delineate respective responsibilities when prescribing medications.
Can a Physician Establish a Patient Relationship and Resultant Liability Without Seeing a Patient?
In Walters v Rinker, the court ruled that the examination of a culture or tumor establishes a physician–patient relationship. In this case, the patient had a mass excised, and the specimen was sent to a pathologist for examination. In his report, the pathologist stated, “conclusive evidence of malignancy was not present, and changes in the lymph node from the thigh area were of an active rather than a neoplastic nature”. Based on the pathologist’s report, the mass was determined to be benign. The patient’s health declined, and he was diagnosed with large cell lymphoma 2 years later.
The court ruled that the pathologist established a physician–patient relationship in this case. Although the pathologist never personally saw or treated the patient, he provided professional input for the patient’s care. The court stated that the tissue examination and diagnosis were clearly performed for the purpose of evaluating for possible treatment. In such instances, a physician–patient relationship can be created without direct patient contact.
This legal analytical approach was again applied in Diggs v Arizona Cardiologists, Ltd. Here, the court decided that the interpretation of test results by a specialist establishes a duty to the patient. The plaintiff presented to the St. Luke’s Medical Center ED with severe chest pain. The emergency physician ordered an electrocardiogram (ECG) and an echocardiogram. The computerized ECG interpretation indicated a myocardial infarction (MI), however, the emergency physician determined the clinical picture to be more consistent with pericarditis. The emergency physician asked Dr. Valdez (a cardiologist who was in the ED visiting a different patient and not on call) for an informal consultation aimed at better interpretation of the echocardiogram. Dr. Valdez reviewed the patient’s clinical history, physical examination results, and ECG. He did not choose to physically see the patient. Dr. Valdez agreed with the diagnosis of pericarditis and advised discharge with a prescription for antiinflammatory medications. Three hours later, the patient suffered a cardiac arrest and died. A second cardiologist reviewed the ECG and echocardiogram from earlier in the day and concluded that the results were consistent with an MI.
Dr. Valdez argued that his consultation with the emergency physician was informal and that he owed no duty of care to the patient. Multiple prior courts had ruled that no duty could exist without a contractual relationship and that an informal consultation did not establish a physician–patient relationship. Yet, in this case, the court ruled that a doctor providing consulting services has an implied contract of employment, which therefore establishes a duty to the patient. The court opined that the duty of care goes to the doctor most capable of preventing possible harm due to others’ negligence. Dr. Valdez was thus determined to be most qualified to make treatment decisions in this case, and his qualifications provided him with authority to do so. Therefore, he had a responsibility to recommend admission to the hospital so that the patient could receive proper care. This court ruled that the negligent care of Dr. Valdez resulted in the patient’s death.
In this case, Dr. Valdez took specific information on a particular patient, reviewed results, and provided definite recommendations for care. In the court’s view, this established a relationship with the patient and thus, liability for his actions. Again, a physician was held liable when they examined specific test information but did not see the patient.
Does Informal Contact by a Patient or a Physician Create a Physician–Patient Relationship?
Clanton v Von Haam demonstrated that answering a telephone call from a patient does not create a physician–patient relationship. The plaintiff presented to an ED complaining of back pain. During the visit she developed numbness in her legs. She was examined by an emergency physician, who prescribed pain medicine and released her. Upon arrival home, her pain worsened and she called the ED. The physician that had previously seen her was no longer on duty. The patient then called the answering service of Dr. Appellee and his partner, both of whom had previously treated her for unrelated issues. Dr. Appellee returned her call but refused to make a house call and told the patient that she would have to wait until the morning to see him. The patient’s condition worsened, and several hours later she was admitted to another hospital and suffered eventual paralysis. The patient alleged that Dr. Appellee should have known that her condition was serious and could result in paraplegia. She asserted that his failure to recognize the need for immediate treatment and advise her to return to the hospital directly resulted in her adverse outcome.
As with many such cases, contradicting testimony was presented. Dr. Appellee argued that no physician–patient relationship existed prior to or after the telephone call. His recommendation was for the patient to take the medicine that the emergency physician had prescribed and to contact him in the morning at his office. The patient, however, claimed that Dr. Appellee told her there was nothing he could do and did not suggest that she come see him in the morning.
The court sided with Dr. Appellee, ruling that no formal relationship was established because he had not previously treated the patient for the symptoms they discussed over the telephone. “One who has secured a medical license according to the statute is not liable for damages alleged to result from the refusal to take a case”. The courts consider a physician free to contract for care with whomever they chose.
In Reynolds v Decatur Memorial Hospital, the court ruled that an informal telephone consultation by an on-duty specialist does not create a physician–patient relationship. In this case, a 2 1/2-year-old boy was taken to Decatur Memorial Hospital’s ED, having been injured 2 h prior while jumping on a couch. On examination, it was noted that the patient had an abnormal breathing pattern. In addition to spinal x-ray studies, laboratory tests were performed to evaluate for infection or metabolic derangement. The spinal x-ray studies were interpreted as normal. The patient was admitted to the hospital, and the on-call pediatrician was consulted to evaluate the child. At that time, the patient was noted to be febrile. On further history-taking, it was revealed that the patient had jumped off the couch, landed on his arm, walked to his mother, and then gradually became limp. The pediatrician noted the patient to be flaccid below the neck, hypo-reflexive, and experiencing respiratory difficulty. The neck was nontender. Because fever was present, infection, rather than trauma, was determined to be the most likely etiology of the patient’s condition.
Dr. Fulbright, the on-call neurosurgeon, was then called at home. Dr. Fulbright was told of the findings and inquired as to whether the patient had a stiff neck. The pediatrician informed him that his neck was, in fact, stiff, and the neurosurgeon suggested that a lumbar puncture be performed. Dr. Fulbright was solely asked for his advice and was not asked to see the patient. No further contact with him was made.
The pediatrician subsequently made a diagnosis of Guillain-Barré syndrome and transferred the patient to another hospital, where a spinal cord injury was discovered. The court determined that Dr. Fulbright’s telephone conversation with the pediatrician had not established a physician–patient relationship. Therefore, there was no duty owed by Dr. Fulbright to the plaintiffs, and thus, no medical malpractice on his part. The patient must knowingly seek the physician’s assistance and the physician must knowingly accept the patient for there to exist a formal relationship. “A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed”.
When a Consultant Gives General Advice Over the Telephone to an Emergency Physician, Does That Establish a Physician–Patient Relationship and Liability?
In Bessenyei v Raiti, the court found that an off-duty specialist owes no obligation to a patient when offering informal consultation to the treating physician. The plaintiff presented to the ED with paint thinner injected into his left thumb. In the ED, the injury was treated with a Betadine (Purdue Products LP, Stamford, CT) soak. Dr. Raiti, the treating physician, suggested that the patient be seen at a hand clinic. The patient declined. The emergency physician then telephoned Dr. Birely, a plastic surgeon on staff who was not on call at that time. Dr. Birely advised treating the patient with antibiotics and pain medicine. He did not charge for the consultation. Dr. Raiti relayed the surgeon’s advice to the patient and then discharged him home with follow-up instructions. The patient’s condition worsened the following day and resulted in partial amputation of the thumb. Suit was brought against both physicians, alleging they failed to recognize the seriousness of the injury.
The court ruled that Dr. Birely, the consultant, was not responsible for the patient’s adverse outcome. Dr. Birely owed no legal obligation to the patient as his consultation was given off duty. Although Dr. Birely was on staff at the hospital, he did not have a duty to every patient admitted to that facility. Duty to patients is relinquished as soon as a doctor is not working or on call. Doctors are not determined to be on call simply because they accept a telephone call from another physician. The court emphasized that Dr. Raiti had the ultimate decision-making authority in this case due to his direct contact with the patient. Dr. Birely was not regarded as a joint provider of medical services. The court analysis stated that Dr. Birely had no duty to the patient, because he had not established a relationship and had no contractual obligation.
The court ruled similarly in Majzoub v Appling, reinforcing that a doctor must show “intent of care” or an “affirmative action” to create a physician–patient relationship. The plaintiff presented to the ED with exudative tonsillitis, hoarse voice, and stridor. A rapid strep test was positive. Dr. Humayun, the emergency physician, contacted the on-call otolaryngologist, Dr. Appling, to discuss the case. Prior to the call, Dr. Humayun had administered penicillin and a “breathing treatment.” Dr. Appling recommended administering ceftriaxone and dexamethasone and instructed Dr. Humayun to observe the patient for 30–60 min after the breathing treatment was given. Dr. Appling testified that he was told the patient was not in distress. Several hours later, the patient suffered respiratory arrest, and a cricothyrotomy was performed. Dr. Appling was then called in for assistance and the patient was admitted to the intensive care unit. A subsequent electroencephalogram showed no brain activity, and the patient died 3 days later.
The patient’s wife brought suit against the otolaryngologist, who argued that he had not established a relationship with the patient until after the respiratory arrest. The court agreed, determining that Dr. Appling’s initial conversation with Dr. Humayun was not sufficient to establish a physician–patient relationship. Dr. Humayun was responsible for the patient’s care and free to accept or decline Dr. Appling’s advice. A physician must show intent of care or some affirmative action to treat before a relationship can be created. Therefore, Dr. Appling held no legal responsibility to the patient. If no medical diagnosis or treatment decision is offered, a physician–patient relationship is not created, and no responsibility for the patient’s fate is transferred. Once again, the key component of establishing a patient–physician relationship is whether the physician clearly indicates “I will take care of you.”
Pharmacists and Physicians
There are distinct, separate duties when a physician prescribes and a pharmacist dispenses medication to a patient. Two non-ED cases clearly delineate the general respective responsibilities. In Morgan v Wal-Mart Stores, Inc., a 12-year-old boy was diagnosed by his physician with attention deficit hyperactivity disorder and prescribed desipramine (Norpramin; Sanofi-Aventis, Bridgewater, NJ). The physician testified that she showed the patient’s mother an entry for tricyclic antidepressants in the Physicians’ Desk Reference. The entry described common side effects associated with this class of medications, such as dry eyes and mouth and increased heart rate, and the physician explained that the child should be watched closely for rapid heart rate. Two years later, after multiple medical visits to a variety of providers, the child died from hypereosinophilic syndrome, which is a rare complication of desipramine therapy. The parents brought suit against Wal-Mart, alleging that it was negligent in the sale of desipramine “by failing to properly warn intended users of the hazards and harms associated with the use of the product.” The court ruled that the pharmacist had no duty to warn the patient of side effects. The physician was held liable for $1.012 million.
Thus, a pharmacist is not determined to have a duty to warn a patient of medication side effects. Multiple other state courts have reached the same conclusion: it is the physician’s duty to warn of potential side effects.
In Frye v Walgreen, the plaintiff contended that, in the act of placing warning labels on medication bottles, the pharmacist is obligated to warn of all potential drug side effects. The court ruled that imposing such a duty would discourage pharmacists from placing any warning labels on drug containers. The responsibility to warn was again ascribed to the physician: “Consumers should principally look to their prescribing physicians to convey the appropriate warning regarding drugs, and it is the prescribing physician’s duty to convey these warnings to the patients”.
Courts have held that pharmacists owe purchasers of prescription medication “the highest practicable degree of prudence, thoughtfulness and vigilance and the most exact and reliable safeguards consistent with the reasonable conduct of the business in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines”. A pharmacist who inaccurately fills a prescription is therefore liable to the customer for resulting harm. A pharmacist is bound to safely fill a medication.
A pharmacist may be held liable for adverse outcomes, particularly if a medication is knowingly dispensed in a way that the pharmacist judges to be harmful. In Brooks v Wal-Mart Stores, a patient was prescribed prednisone 80 mg QID (four times a day), an excessive dose. The pharmacist called the physician to confirm the dose and filled the prescription as written. The medication error was recognized 10 days later, however, the patient developed Nocardia pneumonia and cerebral aspergillosis. He underwent numerous hospitalizations and surgeries, and suffered renal failure. The court ruled, “A pharmacist must exercise his own judgment as to whether any dosage prescribed, even if confirmed by the prescriber, would be harmful to the patient. If he determines the dosage would be harmful, he has an obligation not to fill it.” The patient was awarded $2.5 million.
These cases should raise the physician’s awareness of the duties and obligations when prescribing medications. Practically, it is impossible to warn patients of every possible side effect of a given medication. However, common and anticipated side effects should be clearly communicated to patients. It cannot be assumed that the pharmacist will do this, as they are not legally obligated to do so. To minimize physician liability, patients should be encouraged to read package inserts, handouts, and ask any questions they may have about their medication.
Recommendations to Avoid Liability When Utilizing Consulting Specialists and Pharmacists
The preceding cases demonstrate several legal principles. First, if test results, cultures, pathology specimens, etc. are analyzed by a specialist, and advice specific to diagnosis and treatment is offered, a physician–patient relationship is created even if the specialist never sees the patient. Second, a telephone contact or consultation in which general advice is given does not place liability on the consulting physician, regardless of whether the consultant is officially on call. In general, courts are hesitant to declare consultants liable for providing advice and opinions. The courts recognize that if consultants are held strictly liable, they will ultimately refuse to provide advice, to the detriment of patient care. A similar legal philosophy is applied in Good Samaritan cases. The courts recognize that physicians have special skills and knowledge that are of benefit to society, and are thus hesitant to penalize consulting mistakes when the intent is noble and voluntary.
These cases serve to suggest actions that an emergency physician can take to establish a relationship between their patient and a consultant. The emergency physician must solicit an affirmative action by the consultant that demonstrates an agreement to participate in the patient’s care. Most directly, the emergency physician can request that the consultant see and examine the patient in person. In some situations, this may be necessary to minimize liability.
An affirmative act may also be solicited by requesting the consultant to review specific findings related to the patient’s visit. A chart may be thus documented, “I have reviewed the patient’s history, physical examination, and test information with Dr. X who recommends the following …” or, “Dr. X has reviewed the x-rays of the patient and recommends …” Here, a direct review of patient information is documented as the basis for specific advice.
If a relationship between the patient and consulting physician is sought, it is important to verbalize a formal request for advice or treatment recommendations. For example, “Dr. X, this is Dr. Y. I would like to formally ask you a question about a patient I’m taking care of in the ED.” Further, the consultant can be asked to accept a patient’s name and contact information in an agreement to provide further care. The chart should document such discussions specifically.
We have reviewed several key legal cases that illustrate how liability may be ascribed in ED lawsuits involving multiple providers. The emergency physician is responsible for the treatment and safe disposition of all ED patients. However, in cases involving consultants, the pivotal factor rests on the court’s determination as to whether a patient relationship was established. A physician–patient relationship is formed by an “affirmative act” in which the consultant demonstrates intent to be specifically involved in the care of the patient.
With respect to pharmacists, the responsibility to warn of possible adverse effects rests with the physician. The pharmacist’s duty is to safely dispense ordered medications and holds no legal duty to warn.
- Richards EP III. Tolling of the Statute of Limitations (continuing wrong) – Walters v Rinker, 520 N.E.2d 468 (Ind. Ct. App. 1988). The Law, Science, and Public Health Law site. Available at: http://biotech.law.lsu.edu/cases/sol/Walters_v_Rinker.htm. Accessed January 12, 2012.
- Walters v Rinker. (Ind. Ct. App. 1988), 520 N.E.2d 468.
- Diggs v Arizona Cardiologists, Ltd. No.1 CA-CV 99–0508, Aug. 8, 2000.
- Clanton v Von Haam. 340 S.E.2d 627 (Ga. Ct. App. 1986).
- Reynolds v Decatur Memorial Hospital. 660 N.E.2d 235 (Ill. App. 1996).
- Bessenyei v Raiti. No. JFM-01–1029, June 9, 2003.
- Majzoub v Appling. No. 01-00-00842-CV, Aug. 30, 2002.
- Morgan v Wal-Mart Stores, Inc. No. 03-99-00700-CV (Tex. App. Dist. 3 08/10/2000).
- Frye v Walgreen. 605 N.E.2d at 558.
- Dunlap v Cliff Pharmacy Co. Oak 288 S.W. 236, 237 (Tex. Civ. App. – Austin 1926).
- Brooks v Wal-Mart Stores. No. COA 99–430, Aug. 29, 2000.
J Emerg Med. 2014;46(5):612-616. © 2014 Elsevier Science, Inc.