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Medicolegal Sidebar: Getting Sued By Someone Else’s Patient—When Does a Curbside Consultation Carry Medicolegal Jeopardy?

Bal, B. Sonny MD, JD, MBA, PhD; Teo, Wendy BA(Cantab), BM BCh (Oxon), LLM; Brenner, Lawrence H. JD

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Clinical Orthopaedics and Related Research: October 2019 - Volume 477 - Issue 10 - p 2204-2206
doi: 10.1097/CORR.0000000000000941
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Introduction

Surgeons know that staying current on surgical techniques is important; they may not realize that medicolegal principles evolve just as quickly. In 2018, it was reasonable to believe that one might be sued for malpractice by a patient; in 2019, a Minnesota Supreme Court decision found that a physician-patient relationship is not a necessary element in a medical malpractice claim [8]. In the ruling, the Court ruled that during the time that a physician acts in a professional capacity, if it is reasonably foreseeable that a third-party will rely on the physician’s medical decision-making that may ultimately harm the patient, then a physician duty of care toward that patient arises, even absent a physician-patient relationship [8].

Modern medical practice is increasingly democratized by team-based approaches to medical care, information disclosure and dissemination, and shared decision-making. But the Minnesota court ruling is a reminder that courts still hold a traditional view that the physician is ultimately responsible for the patient, even for medical advice and decision-making done without establishing a physician-patient relationship.

Facts of the Case

Fifty-four year old plaintiff Susan Warren was seen by a nurse practitioner for abdominal pain, fever, chills, and other symptoms. Lab tests showed an elevated white blood cell count, and other abnormalities. Believing that Warren had an infection that needed hospitalization, the nurse practitioner consulted Dr. Richard Dinter, a hospitalist. Dr. Dinter and the nurse practitioner worked in different healthcare systems, but it was customary for nurse practitioners to call hospitalists and present details of a case in order to get a patient admitted, or to come up with another plan.

Anticipating a hospital stay, the nurse practitioner completed paperwork for Warren’s employer for time off work. While Dr. Dinter and the nurse practitioner disagreed about what was said during a 10-minute telephone consultation, the doctor was convinced that Warren’s symptoms and lab abnormalities were caused by her underlying diabetes, rather than infection.

The nurse practitioner followed up with another telephone call, this time to a physician with whom she had a collaborative practice agreement, with the hopes that the physician might be able to get Warren hospitalized. Instead, the physician agreed with Dr. Dinter’s thinking.

“I had two physicians that changed my mind,” the nurse practitioner later testified [8].

The nurse practitioner conferred with Warren, who was still waiting in the clinic, updating her about the communications with the two physicians. Warren was sent home from the clinic with changes in her diabetes and pain medications. Three days later, Warren’s son found her dead at home; an autopsy showed that the cause of death was sepsis from an untreated Staphylococcus aureus infection.

The medical malpractice action charged that Dr. Dinter and his employer hospital had negligently caused Warren’s death by advising the nurse practitioner that hospitalization was not needed. The defendants claimed that Dr. Dinter was merely offering his thoughts as a professional courtesy, and that no doctor-patient relationship had been established between Dr. Dinter and Warren. The district court agreed as much, and in a subsequent unpublished opinion, a divided appeals court affirmed the district court ruling. The Minnesota Supreme Court then reviewed the decision and overturned the lower courts’ decisions.

Supreme Court Ruling

The Minnesota Supreme Court’s decision was surprising because it construed the concept of a physician’s duty to patients in a much broader way than had been understood by earlier court rulings and established law. The ruling was not based on the presence or absence of a physician-patient relationship between a physician and a patient (s)he had agreed to care for, but rather on whether in a specific set of circumstances harm might reasonably be foreseen or anticipated, regardless of whether the patient in question is under the care of the physician being sued. Citing earlier Minnesota law, the Supreme Court acknowledged that in all negligence actions, “the existence of a duty running [from the defendant] to the plaintiff is a prerequisite to a finding of medical liability” [8]. But the Court took the analysis concerning the existence of a duty further. Absent a physician-patient relationship in Warren, the Court leaned on the traditional standard of whether or not a tort duty can arise from the foreseeability of harm, which they defined as the “risk to another or to others within the range of apprehension” [8].

To support this view, the Court turned to its own century-old ruling, Skillings v Allen, in which a doctor advised the parents of a girl that her scarlet fever had resolved, and that she was no longer contagious [6]. Relying on this advice, the parents removed their daughter from isolation and took her home, but both parents soon became ill with scarlet fever. The Skillings Court held the doctor liable for damages to the parents, even though no patient-physician relationship existed with regard to the parents.

In relying on Skillings to support its ruling in Warren, the Court was abiding by legal precedent, and clarifying that under Minnesota law, a physician’s legal duty to a patient can arise from the foreseeability of harm, even absent a physician-patient relationship. This view is not limited to Minnesota; it is the also the law in a minority of other jurisdictions, including Arizona, Oregon, Iowa, and South Carolina, all of which have had case law holding that a doctor-patient relationship is not required in every legal action against a medical provider [8].

Curbside Consultations

The Warren ruling was opposed by the American Medical Association (AMA), and the Minnesota Medical Association (MMA) who joined in filing an amicus brief in support of Dr. Dinter and his hospital [1]. In that brief, the AMA and MMA argued that the conversation between the nurse practitioner and Dr. Dinter was a curbside consultation, a common and useful medical tradition that encourages the informal exchange of information between professionals, and improves patient care. The medical associations further warned of a chilling effect on the beneficial interaction among medical professionals, as a result of the Court’s finding in favor of Warren.

The Court was not persuaded by this line of reasoning. It acknowledged that physicians solicit one another’s opinion during informal curbside consultations, and that many states exempt third-party doctors from malpractice liability when their colleagues engage them in such conversations [2]. The Court cited Irvin v Smith, a Kansas ruling that had said “A physician who gives an ‘informal opinion,’ however, at the request of a treating physician, does not owe a duty to the patient because no physician-patient relationship is created” [3].

Importantly, though, the Minnesota Court distinguished curbside consultations from the case at hand, noting that the nurse practitioner had not called Dr. Dinter simply to “pick a colleague’s brain about a diagnosis” [8]. Instead, the nurse practitioner believed that the patient had an infection, had anticipated hospitalization of her patient, and had even generated a form letter to Warren’s employer requesting time off work for her patient. The call to Dr. Dinter entailed medical decision-making on Dr. Dinter’s part, rather than an informal, cursory discussion to provide advice as a courtesy, according to the Court. Dr. Dinter exercised his medical authority, according to the Court, on behalf of his employer hospital, as a gatekeeper; in doing so, he made what the Court found was a negligent decision not to admit Warren.

Regardless of whether this was or wasn’t a curbside consultation, the Court made it clear that personal contact is not needed for a physician-patient relationship to exist; instead, a physician duty can also arise from the foreseeability of harm. The Court rejected dissenting arguments that a single phone call, with telephone exchange of limited information, could not possibly have given Dr. Dinter a reasonable opportunity to foresee risk. The Court also rejected arguments that the nurse and her supervising physician could have found another pathway to getting Warren hospitalized, and that they were also negligent in sending Warren home.

Key Messages

While the actual outcome in Warren is as-yet unknown, the key holding of the Minnesota Supreme Court ruling is likely to stand as well as influence cases in Minnesota (and perhaps elsewhere) for years to come. A physician can be held accountable for his or her medical recommendations, even if they are made about a patient with whom the physician has no doctor-patient relationship. The standard is not whether such a relationship exists, but rather whether harm from the physician’s suggestion is foreseeable [8].

Shinal v Toms, a legal ruling we recently addressed in this space [7], further clarified the scope of physician responsibility. The Pennsylvania Supreme Court held that a patient’s informed consent for a procedure cannot be delegated to a nurse practitioner or physician assistant [5]. In that column, we agreed with one legal scholar who noted that the Shinal ruling reflects judicial conservatism and unease at the modern, changing medical landscape that is driven by information technology, collaborative care platforms, shared decision-making, and involvement of third parties such as insurance companies and hospitals in medical decision-making [4, 5]. Indeed, both the Shinal and Warren rulings, in our opinion, appear to reflect a judicial desire to hold physicians responsible, for tasks that courts think should belong expressly to physicians (regardless of whether physicians feel these tasks could be delegated to others, as in Shinal), and perhaps even to expand the scope of physician responsibility in new ways (as in Warren). In other words, regardless of the evolution of healthcare delivery facilitated by information technology and other reasons, the judicial system still views the physician role as ultimately dispositive.

The facts in the Warren case are all-too familiar to medical professionals. In an era when medical information is conveyed by telephone, text message, telemedicine, and other information aids, without actual patient interaction, physicians should realize that their recommendations may be judged by a new standard, that of reasonable foreseeability of harm. Whether this standard will be adopted by other jurisdictions remains to be seen. But at least in Minnesota, the prudent course of physician action may be to examine the patient, or refer to an emergency room, if a serious, life-threatening condition cannot be excluded during a telephone consultation. And outside of Minnesota, the Warren ruling is a reminder that physician communications with colleagues and ancillary care providers may affect patients with whom the physician has no professional relationship, thereby creating liability risk.

References

1. Brief of amicus curiae Minnesota Hospital Association, Minnesota Medical Association, and American Medical Association. Available at: https://www.mnmed.org/getattachment/advocacy/protecting-the-medical-legal-environment/MMA-in-the-Courts/Warren-v-Dinter-Brief.pdf.aspx?lang=en-US. Accessed August 5, 2019
2. Cotton VR. Legal risks of “curbside” consults. Am J Cardiology. 2010;106:135-136.
3. Irvin v Smith, 31 P.3d 934, 941 (Kan. 2001).
4. Koch VG. Delegating informed consent. Hastings Cent Rep. 2017;47:5–6.
5. Shinal v Toms, 162 A.3d 429 (Pa. 2017).
6. Skillings v Allen, 173 N.W. 663 (Minn 1919).
7. Teo WZW, Brenner LH, Bal BS. Medicolegal Sidebar: Who should obtain informed consent? Clin Orthop Relat Res. 2018;476:1566-1568.
8. Warren v Dinter, No. A17-0555 (Minn. Apr. 17, 2019).
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