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 consultations-variously called "curbside," "hallway," or "sidewalk" consultations-typically 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 illnesses-usually considered a protected professional domain-may 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] A. 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] B. 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 expectations-those of the doctors or the patients-determine 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 reviewed her chart.[30] The court further noted that the defendants' opinions were merely recommendations contributing to the "body of information available," much like a treatise or textbook, which the patient's treating physician could accept or reject as he saw fit.[31] As these cases demonstrate, courts traditionally have protected informal professional inquiries among physicians by refusing to find the existence of a physician-patient relationship. Thus, they are inclined to find no duty of care as a matter of law.

IV. THE EXPANDING SCOPE OF CONSULTANT LIABILITY

While recent cases have followed the traditional contract-oriented analysis described above, declining to find the existence of a physician-patient relationship,[32] a trend is developing that favors a more qualitative analysis of the facts and circumstances surrounding informal consults between physicians regarding patient care. As noted at the outset, this trend reflects a discernible shift away from policies that favor physicians' expectations toward policies that favor patients' expectations with respect to duty. This trend holds fast regardless of whether a court adheres to principles of contract formation or principles of ordinary negligence.

For instance, many courts have recognized that a physician may agree in advance to the creation of a physician-patient relationship by means of a preexisting contract between the physician and the hospital. Similarly, courts appear more willing to "imply" a contractual relationship between the consultant and the patient as a result of the consultant's actions in evaluating, treating, or caring for a patient, even in the absence of direct contact. Beyond these, at least one court has expressly rejected a contract-oriented approach, finding instead that a duty of reasonable care may exist where a treating physician foreseeably relies on the expert advice of a consultant.[33]

V. OVERVIEW OF RECENT CASES

Courts analyze the issue of duty using different approaches, each being quite fact specific. Where courts have declined to find that a consultant owed no duty of care to a patient as a matter of law, the decision has turned on a variety of factors. These include whether a physician-patient relationship was established as a result of the consultant's actions toward the patient, whether the consultant physician had a preexisting contractual obligation with a hospital or managed care plan to treat a particular patient, and whether it was reasonably foreseeable that the treating physician would suspend independent professional judgment in reliance on the consultant's expertise. Moreover, courts have considered these factors in isolation or in any combination.

A. Physician-Patient Relationship Based on Consultant's Actions

Case law makes clear that a specialist who has no actual contact with a patient is not shielded from liability. In several cases, courts have considered whether the consultant physicians actually participated in a patient's care through evaluation, diagnosis, or treatment. In Bovara v.St. Francis Hospital,[34] for example, the appellate court reversed the trial court's award of summary judgment to two specialist consultants on grounds that an issue of fact existed about whether they had provided services to the patient. In Bovara, a patient with previously-diagnosed heart disease consulted a cardiologist about the possibility of undergoing corrective coronary angioplasty.[35] Because the cardiologist was not qualified to read angiograms, he requested that two cardiac interventionists review the patient's film from a previous coronary angiogram. The cardiologist received a verbal message from the interventionists' office suggesting that, upon review of the angiogram, the patient was a candidate for coronary angioplasty. Neither of the cardiac interventionists reviewed any other records from the patient; neither took notes nor billed for their services. Both later testified that they had not been asked about the best treatment options for the patient; they had merely been asked whether angioplasty was technically feasible. After reviewing the film, the three doctors met to discuss the patient's history, and the decision was made to perform an angioplasty. The cardiologist transmitted this information to the patient, who then chose to undergo the procedure. The patient later suffered cardiac arrest and died during the angioplasty. The court held that there was a genuine issue of fact as to whether the two interventionists acted as the patient's physicians by reviewing and interpreting test results.[36]

Similarly, in Cogswell v. Chapman,[37] the appellate court reversed summary judgment for an ophthalmologist who had discussed the patient's eye injury with the treating physician, asked if the patient's eye pressure had been checked, and discussed treatment management, including minimal activity restrictions and follow- up visits that might include the ophthalmologist's office.[38] The court found it particularly significant that the patient's aunt testified she had received identical written instructions regarding eye drops, pain relievers, resting, and follow-up visits.[39] The court held that "whether the physician's giving of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship had arisen is ordinarily a question of fact for the jury." [40]

A triable issue of fact was also found in Campbell v. Haber, [41] where the appellate court reversed summary judgment favoring a cardiologist. On the basis of a telephone call from the patient's treating physician, the cardiologist had determined that a patient's test results were "not consistent with a cardiac event." [42] The court determined that "[a]n implied physician-patient relationship may arise when a physician gives advice to a patient, even if that advice is communicated through another health care professional." [43] In the same opinion, the court rejected a strongly-worded dissent, which argued that the cardiologist was at a "severe disadvantage" in rendering an opinion since he was limited by whatever information the treating physician may have provided. The court thus rejected the dissent's rationale that it was improper to equate a consultant's opinion communicated to a treating physician with treatment, diagnosis, instructions or advice provided to a patient.[44]

At least two courts have gone even further, finding as a matter of law that a physician-patient relationship existed where consultants provided services to patients they had never seen or spoken with directly. In Peterson v. St. Cloud Hospital, [45] the appellate court reversed summary judgment for a pathologist who had never met or spoken with the patient, holding that a physician-patient relationship existed as a matter of law where services were rendered on the patient's behalf. In that case, the pathologist evaluated slide smears from tumor cells removed from a patient's lung by needle biopsy.[46] On the basis of this evaluation and other factors, the treating physician diagnosed the patient as having small cell carcinoma, recommending treatment with chemotherapy and radiation. When the patient did not respond to this treatment, another biopsy was performed. The same pathologist evaluated the specimen, but this time diagnosed a bronchial carcinoid tumor for which surgery or monitoring was the recommended treatment. The appellate court explicitly rejected the trial court's conclusion that "'it is not reasonable for [a patient] to believe that someone he has never met, spoken with, nor personally consulted can be considered his physician.'"[47]

The court reached a similar determination in Wheeler v. Kersting Memorial Hospital. [48] The court there held, as a ma tter of law, that a physician who evaluated the status of a pregnant woman's labor and approved her transfer to another hospital for treatment on the basis of information received over the phone by a nurse was liable as a treating physician.[49]

B. Physician-Patient Relationship by Preexisting Contract

Courts have also considered whether a physician-patient relationship can be established by a preexisting contractual obligation between the consultant and the hospital. While a physician has no legal obligation to accept as a patient everyone who seeks medical services,[50] some courts have recognized that a physician may agree in advance to the creation of a physician-patient relationship, leaving no discretion to decline such treatment to prospective patients. For example, hospital-physician contracts may require the physician, while "on call," to treat all emergency room patients.[51] Hospital bylaws may impose similar requirements,[52] and HMO or other managed care agreements may do likewise. [53]

Whether or not a consultant who is a party to a preexisting contract with a hospital legally owes a duty to a particular patient depends upon a variety of factors. These include whether the consultant was paid to be on call or was merely a volunteer, the express terms of the contract, and the consultant's actions (or inaction) toward the patient. Some courts have declined to find a physician-patient relationship if the consultant took no affirmative action toward the patient's treatment even though the consultant was on call. For example, in Fought v. Solce,[54] the court held that a consultant's voluntary agreement to be on call did not impose any duty, since the consultant was under no such contractual obligation to the hospital, nor was he required to be on call to maintain staff privileges. The same court went even further in Ortiz v. Shah,[55] refusing to find that a contract between a consultant and the hospital to provide on-call services was sufficient to create a physician-patient relationship where the consultant did not see or talk to the patient and did not provide advice to anyone in the emergency room regarding how to treat the patient. Conversely, in Hand v. Tavera, [56] the same court recognized a physician-patient relationship between the doctor and the insured where a "health-care plan's insured show[ed] up at a participating hospital emergency room, and the plan's doctor on call [was] consulted about treatment or admission." [57] The court noted that "[i]n effect, [the patient] had paid in advance for the services of the [health] plan doctor on duty that night . . . and the physician-patient relationship existed." [58] Thus, although the defendant doctor and the patient had no prior relationship, a duty of care was owed to the patient when the insured went to the emergency room, and the defendant doctor discussed the patient's condition and treatment with emergency room personnel, recommending a pain reliever.

By contrast, other courts considering whether a physician-patient relationship exists pursuant to a preexisting contract between a consultant and a hospital have come to the opposite conclusion. Typically, these courts have found that the right to refuse to evaluate or treat a patient may be waived under the terms of the contract. In Hiser v. Randolph, [59] for example, the court acknowledged the general rule that "a medical practitioner is free to contract for his services as he sees fit and in the absence of prior contractual obligations, he can refuse to treat a patient, even under emergency situations." [60] However, the court ruled that where the defendant consultant had assented to the hospital's bylaws, rules, and regulations, and had accepted payment from the hospital to act as the emergency room doctor "on call," he became personally bound to "insure that all patients . . . treated in the Emergency Room receive the best possible care." [61] Under such circumstances, he also agreed to insure that "in the case of emergency the provisional diagnosis shall be stated as soon after admission as possible." [62] Moreover, according to the bylaws, "these services were to be performed for all persons whom the 'hospital shall admit . . . suffering from all types of disease.'" [63] Under the circumstances, the court found that the defendant had waived his right to refuse to attend or treat a patient in the emergency room while he was on call.

Similarly, in Schendel v. Hennepin County Medical Center, [64] the defendant consultants held a written contract with the hospital to provide direct patient care and "guidance and direction" to the hospital's residents and interns.[65] Refusing to overturn the trial court's denial of judgment notwithstanding the verdict, the appellate court determined that a jury could reasonably have concluded that, under the terms of the defendants' contract with the hospital, the defendants had a duty to evaluate patients being treated by the hospital's residents. [66]

One court, however, has explicitly rejected the notion that a patient can enforce a contract between a consultant and a hospital. In Oja v. Kin, [67] the plaintiff argued that "[the defendant consultant's] contractual relationship with the hospital, combined with the hospital by- laws, imposed a duty on [the consultant] to come to the hospital when he was called, or to arrange for coverage." [68] The court noted that while the consultant may have owed such a duty to the hospital, a contract between a consultant and the hospital does not necessarily create rights in third parties such as the plaintiff. Thus, the plaintiff would have to prove that he was an intended third-party beneficiary before he could enforce the contract against the defendant consultant. [69]

C. Foreseeable Reliance

In determining whether a consultant owed a duty to a patient, many of the courts stressed the issue of foreseeable reliance -- some to a greater degree than others. For example, in Cogswell v. Chapman, [70] the court held that the defendant consultant's level of participation in the plaintiff's treatment presented an issue of fact for the jury, "especially in light of defendant's expertise in ophthalmology." [71] Similarly, the court in Campbell v. Haber[72] noted that the treating physician had discharged a seriously ill patient "in reliance" on the defendant cardiolo gist's opinion that the patient's symptoms and test results were not consistent with a cardiac event.

Likewise, in Bovara v. St. Francis Hospital, [73] in addition to considering whether the consultant provided a service to the patient, the court expounded at some length about what the defendant consultants "knew or should have known." The court determined that a trier of fact could find that the defendant cardiac interventionists "knew or should have known" that: (1) the treating cardiologist was not trained to read angiograms, (2) their medical opinion would be transmitted to the patient, and (3) their medical opinion was "crucial" to the patient in deciding whether or not to undergo angioplasty.[74] Although in each of these three cases the courts were primarily concerned with whether the defendant consultants had actually participated in the plaintiffs' care, foreseeable reliance on the consultants' opinions by the treating physicians was clearly a factor.

Two courts have explicitly rejected the traditional contract-oriented approach when analyzing whether a physician-patient relationship was established, holding instead that "foreseeable reliance" may be the proper test for determining the issue of duty in certain circumstances. In Diggs v. Arizona Cardiologists, Ltd.,[75] the court held that a cardiologist, merely by virtue of professional expertise, could be found to have duty of care when it was foreseeable that the patient's treating physician would rely on his advice.

In Diggs, the defendant informally consulted with an emergency room physician about a patient who had presented with severe chest pain.[76] The two physicians discussed the patient's clinical history and the results of her physical examination. The cardiologist also reviewed the patient's electrocardiogram ("EKG").[77] Following the cardiologist's diagnosis of pericarditis, they agreed that the patient should be given a nonsteroidal anti- inflammatory medication and discharged, with the instruction to "follow up with her family practice physician immediately."[78] Three hours after her discharge, the patient died of cardiopulmonary arrest. The court noted that the defendant cardiologist was in a "unique position" to prevent future harm to the patient because the emergency room doctor was not fully qualified to interpret the EKG, relying on the cardiologist's interpretation and curbside diagnosis of pericarditis. Under these circumstances, the court concluded that the absence of a contractual relationship between the patient and the defendant cardiologist did not preclude liability.[79]

Finally, in Gilinsky v. Indelicato,[80] the court not only rejected the traditional contract-oriented approach to analyzing whether a physician-patient relationship was established, it also allowed an ordinary negligence claim based on the same circumstances giving rise to the medical malpractice claim. In Gilinsky, the court held that "the better approach eschews a bright- line rule in favor of a qualitative analysis of the consultative physician's actions in relation to the [patient], that considers, among other things, the extent to which the consultative physician has exercised independent professional judgment."[81] In that case, the consultation between the physicians consisted of seven phone calls-three of which were placed by the defendant-that lasted approximately thirty-eight minutes in the aggregate.[82] The court noted that the nature of the consultation was "continuous and substantial" rather than "fleeting and informal."[83] Recognizing the importance of allowing a free flow of information between medical professionals, the court also held that foreseeable reliance, standing alone, was insufficient to establish a physician-patient relationship; "actual direction of the treating physician is required."[84]

Notwithstanding that determination, however, the Gilinsky court refused to dismiss the plaintiff's claim of ordinary negligence with respect to the same seven phone calls between the treating physician and the consultant.[85] The court noted that a reasonable jury could find that the defendant had "crossed the boundary that divides mere advice from actual direction." By doing so, the defendant had subjected the plaintiff to a "foreseeable risk of harm."[86] Unlike a medical malpractice claim, the theory of simple negligence would not require the existence of a physician-patient relationship.[87] The court justified its refusal to dismiss the ordinary negligence claim as follows:

Even without the aid of expert testimony, a reasonable jury, drawing upon their common, everyday experiences, could conclude that the defendant, by attempting to diagnose and direct the treatment of the plaintiff over the telephone, failed to act as a reasonably prudent person under like circumstances, and that such conduct was a substantial contributing factor in bringing about the plaintiff's injuries.[88]

As Diggs and Gilinsky demonstrate, when extending a duty beyond the physician-patient relationship, foreseeability is key to the analysis.

VI. MEDICAL SUB-SPECIALIZATION AND TELEMEDICINE 

As noted earlier, claims against consultant physicians who have never seen or communicated with the patient are more likely to proceed to trial now than in the past. In addition, with the proliferation of specialists and even subspecialists, continuing advancements in medical and telecommunication technologies only serve to increase the risk of liability associated with discussions among colleagues.

Telephone consultations likely will give way to teleradiology and other tele-imaging diagnostics, video and Internet/e- mail conferencing, and transmission of electrocardiographic and other physiological data by telephone.[89] The enhanced ability to transmit records and diagnostic images and to engage in interactive videoconferencing facilitates the easy transmission of more and more information to consultants, stimulating greater involvement by the consultant in the patient's care.[90] As these technologies become more widespread, the opportunity for consultations will increase exponentially-as will the legal risks to consultants.[91]

VII. CONCLUSION AND Recommendations for avoiding liability

While physicians may continue to informally discuss patient care and treatment options without incurring medical malpractice liability, a review of recent cases discloses certain situations where the risk of liability is undeniably greater. Clearly, physicians who are parties to managed care or other insurance contracts, who are employees of HMOs, or participate in various "on call" schemes must be especially aware that they could be legally obligated to treat all comers. It is also clear that all consultants should be wary of participating in a particular patient's care when a physician-patient relationship could be claimed or when it is reasonably foreseeable that a treating physician will rely on the consultant's expertise.

Unfortunately, however, the concept of "foreseeable reliance" is illusive at best. Nevertheless, by following a few simple recommendations, consultants will be able to better protect themselves against medical malpractice liability occasioned by a casual inquiry from another physician:

Read all on-call agreements and contracts with hospitals or other healthcare organizations, including ancillary documents such as hospital bylaws, rules, and regulations.

When consulted by other physicians, (a) frame responses in very general terms; (b) suggest several possible answers, noting that all are dependent on the specific circumstances of a particular case; and (c) include disclaimer statements to emphasize that there is no formal consulting relationship (e.g., "As you describe it, I believe . . . , but without a more in-depth evaluation, I can't be sure.").

Beware of evaluating test results of any kind and rendering a specific diagnosis.

Keep all such conversations/communications short.

Keep the number of such conversations/communications regarding a particular patient to a bare minimum. If contacted by a treating physician a second time, consider suggesting a formal consultation.

Document any such consultations with the date of the inquiry, the inquiring physician's name, the nature of the inquiry, and any advice given. Physicians who seek an informal consult are most likely documenting that they sought and followed the advice of an "expert" regarding treatment. If the treating physician is sued, the consultant may be impleaded. Without a record of the advice given, the consultant will be defenseless.

If a treating physician presses for more specific guidance, remember that the boundary dividing an informal consult from a formal one is a moving target. Suggest to the treating physician that a more comprehensive evaluation might be appropriate.

Medical specialists will always be consulted by other physicians-both formally and informally-precisely because they are experts. Curbside consultations can be advantageous to both the treating physician and the consultant. For the treating physician, a curbside consult can be "more efficient than searching the literature, it imposes no costs on patient or physician, it can minimize the number of additional consultants in a complicated case, and it can help physicians keep current with medical information."[92] For the consultant, a curbside consult "can also be efficient (and in a salaried setting not result in a financial loss), it may be intellectually stimulating, it may facilitate future formal consultations, and it may disseminate knowledge of local experts."[93]

Unfortunately, curbside consults are not without attendant risks. Communication is a critical problem in curbside consultations because all of the consultant's advice is based on how well the requesting physician gathered information and on the way that information is conveyed. Therefore, any doubts that a curbside consult is evolving into a formal consulting relationship should be resolved in favor of the latter so that a more reliable and complete exchange of information can occur. The advantage is obvious -it will decrease the consultant's risk of medical malpractice liability and simultaneously optimize the patient's care.

ENDNOTES

[1] James L. Rigelhaupt, Jr., J.D., Annotation, What Constitutes Physician-Patient Relationship for Malpractice Purposes, 17 A.L.R. 132 (2001). See, e.g., St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995); Reynolds v. Decatur Mem'l Hosp., 660 N.E.2d 235, 239 (Ill. App. Ct. 1996).

[2] Rigelhaupt, supra, note 1. See, e.g., St. John, 901 S.W.2d at 423.

[3] Corbet v. McKinney, 980 S.W. 2d 166, 169 (Mo. Ct. App. 1997) (citation omitted). See also Oliver v. Brock, 342 So. 2d 1, 4 (Ala. 1976); Rainer v. Grossman, 107 Cal. Rptr. 469, 472 (Ct. App. 1973); Reynolds, 660 N.E.2d at 238; NBD Bank v. Barry, 566 N.W.2d 47, 49 (Mich. Ct. App. 1997).

[4] Patricia C. Kuszler, Telemedicine and Integrated Health Care Delivery: Compounding Malpractice Liability, 25 Am. J.L. & Med. 297, 313 (1999).

[5] Id.

[6] See, e.g., Oliver, 342 So. 2d at 4 (patient's doctor discussed case with second doctor); Rainer, 107 Cal. Rptr. at 472 (professor of medicine recommended surgery for patient during discussion with patient's personal physician); Reynolds, 680 N.E.2d at 238 (defendant gave informal opinion over phone to plaintiff's doctor); NBD Bank, 566 N.W.2d at 49 (defendant consulted with plaintiff's doctor and interpreted EKG); Corbet, 980 S.W.2d at 169 (no evidence that defendant contracted to provide medical services to plaintiff; defendant never examined plaintiff and he did not make diagnosis; defendant only offered recommendation for treatment, which was communicated directly to treating physician and not indirectly to patient).

[7] St. John, 901 S.W.2d at 423 (citing 1 Louisell & Williams, Medical Malpractice s. 8.01 at 8-2, 8-18 to 8-19 (1990) (noting that "medical malpractice developed under the theory of 'public calling' prior to the time negligence emerged as a separate tort")).

[8] St. John, 901 S.W.2d at 423.

[9] Id.

[10] Id. See also Buttersworth v. Swint, 186 S.E. 770 (Ga. Ct. App. 1936); Peterson v. Phelps, 143 N.W. 793 (Minn. 1913); Young v. Crescente, 39 A.2d 449 (N.J. 1944); Miller v. Dumon, 64 P. 804 (Wash. 1901).

[11] Buttersworth, 186 S.E. at 772 (citation omitted).

[12] Peterson, 143 N.W. at 794.

[13] Miller, 64 P. at 806. See also Bienz v. Cent. Suffolk Hosp., 557 N.Y.S.2d 139 (1990) (telephone call to physician's office for the purpose of initiating treatment may be sufficient to create physician-patient relationship; whether defendant physician's advice over the telephone furnished sufficient basis upon which to conc lude that implied physician-patient relationship had arisen was question of fact for jury in malpractice action to recover damages for wrongful death).

[14] See St. John, 901 S.W.2d at 423.

[15] Id.

[16] See, e.g., Sullenger v. Setco, 702 P.2d 1139 (Or. Ct. App. 1985).

[17] See, e.g., Ingber v. Kandler, 112 N.Y.S. 929 (App. Div. 1987) (de minimis consultative communication with a treating physician is insufficient to support finding a physician-patient relationship where defendant physician had no contact with the patient, never saw any of the patient's records, and did not know the patient's name).

[18] 107 Cal. Rptr. 469, 471 (Ct. App. 1973) (treating physician presented patient's history and x-rays to defe ndant, a lecturing physician; defendant gave an opinion that surgery was indicated; treating physician subsequently recommended surgery to patient; patient underwent surgery and brought suit against defendant).

[19] Id. at 472.

[20] Id.

[21] Id.

[22] Id.

[23] 342 So. 2d 1 (Ala. 1976).

[24] Id. at 4.

[25] Id.

[26] Id.

[27] Id. at 5.

[28] Id.

[29] 463 N.W.2d 265 (Mich. Ct. App. 1990).

[30] Id. at 267.

[31] Id.

[32] See, e.g., Reynolds v. Decatur Mem'l Hosp., 660 N.E.2d 235, 239-40 (Ill. App. Ct. 1996) (a "physician's duty is limited to those situations in which a direct physician-patient relationship exists;" to hold otherwise would have a "chilling effect" upon the practice of medicine by "stifl[ing] communication, education and professional association, all to the detriment of the patient"); NBD Bank v. Barry, 566 N.W.2d 47 (Mich. Ct. App. 1997) (following Hill, 463 N.W.2d at 265); Corbet v. McKinney, 980 S.W.2d 166 (Mo. Ct. App. 1998) (following Hill); Lopez v. Aziz, 852 S.W.2d 303 (Tex. Ct. App. 1993) (following Hill).

[33] See Diggs v. Ariz. Cardiologists, Ltd., 8 P.3d 386, 389 (Ariz. Ct. App. 2000).

[34] 700 N.E.2d 143 (Ill. App. Ct. 1998).

[35] Id. at 145.

[36] Id. at 149.

[37] 672 N.Y.S.2d 460 (App. Div. 1998).

[38] Id. at 462.

[39] Id.

[40] Id. (citation omitted).

[41] 710 N.Y.S.2d 495 (App. Div. 2000).

[42] Id. at 496.

[43] Id. (citing Cogswell, 672 N.Y.S.2d at 460).

[44] Id. at 497.

[45] 460 N.W.2d 635, 638 (Minn. Ct. App. 1990).

[46] Id. at 637.

[47] Id. at 638.

[48] Wheeler v. Kersting Mem'l Hosp., 866 S.W.2d 32 (Tex. Ct. App. 1993).

[49] Id. at 39-40.

[50] St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995). See also Oliver v. Brock, 342 So. 2d 1, 3 (Ala. 1976); Hiser v. Randolph, 617 P.2d 774 (Ariz. Ct. App. 1990); Childers v. Frye, 158 S.E. 744 (N.C. 1931); Ricks v. Budge, 64 P.2d 208 (Utah 1937); Lyons v. Grether, 239 S.E.2d 103 (Va. 1977).

[51] See Hiser, 617 P.2d at 774.

[52] See Dillon v. Silver, 520 N.Y.S.2d 751 (App. Div. 1987).

[53] See Hand v. Tavera, 864 S.W.2d 678 (Tex. Ct. App. 1993).

[54] Fought v. Solce, 821 S.W.2d 218 (Tex. Ct. App. 1991).

[55] 905 S.W.2d 609 (Tex. Ct. App. 1995).

[56] Hand, 864 S.W.2d at 679.

[57] Id.

[58] Id.

[59] 617 P.2d 774 (Ariz. Ct. App. 1980).

[60] Id. at 776 (emphasis added).

[61] Id. at 777.

[62] Id.

[63] Id.

[64] 484 N.W.2d 803 (Minn. Ct. App. 1992).

[65] Id. at 808.

[66] Id.

[67] 581 N.W.2d 739 (Mich. Ct. App. 1997).

[68] Id. at 743-44.

[69] Id. at 744.

[70] 672 N.Y.S.2d 460 (App. Div. 1998).

[71] Id. at 462.

[72] 710 N.Y.S.2d 495 (App. Div. 2000).

[73] 700 N.E.2d 143 (Ill. App. Ct. 1998).

[74] Id. at 147.

[75] 8 P.3d 386 (Ariz. Ct. App. 2000).

[76] Id. at 387.

[77] Id. at 388.

[78] Id.

79] Id. at 391.

[80] 894 F. Supp. 86 (E.D.N.Y. 1995).

[81] Id. at 92.

[82] Id. at 88.

[83] Id. at 93.

[84] Id.

[85] Id. at 94.

[86] Id.

87] Id.

[88] Id.

[89] See generally Kuszler, supra note 4.

[90] Id. at 314.

[91] For example, Internet discussions and telemedical conferencing provide records that are discoverable in hard copy form in the event of litigation. Barbara J. Tyler, Cyberdoctors: The Virtual Housecall-The Actual Practice of Medicine on the Internet is Here; Is It a Telemedical Accident Waiting to Happen?, 31 Ind. L. Rev. 259, 282 (1998). [92] Robert M. Golub, M.D., Editorial, Curbside Consultations and the Viaduct Effect, 280 J. Am. Med. Ass'n 929 (1998).

[93] Id.

AUTHOR'S BIOGRAPHY

Ms. Baker co-authored this paper with Kelly Thomas, a summer associate at Williams Kastner & Gibbs, PLLC. Ms. Baker would like to thank Ms. Thomas for her valued contributions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Ms Kim Baker

Williams, Kastner & Gibbs PLLC

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