By Clifford Warren Lober, MD, JD, February 01, 2013
This series will present common, practical situations you may encounter in your everyday practice of dermatology. By considering the legal implications of these scenarios in advance, you will be prepared should a similar situation arise in your office. If you have any suggestions for topics to be discussed in this column, please email them to me at firstname.lastname@example.org. Enjoy!
Disclaimers: (1) The information presented is for educational purposes only. It is not intended as a substitute for competent legal counsel in your own jurisdiction. (2) Each legal situation is unique. You are advised to seek personal counsel should an adverse incident arise. (3) The details of any specific situation may significantly alter the suggested responses. (4) The opinions and advice expressed are solely those of the author and are not necessarily those of the American Academy of Dermatology or the American Academy of Dermatology Association. (5) Any similarities between persons described or named and those living or dead is purely coincidental. (6)The author has no financial or other conflict of interest.
Bryan was sipping his second cup of coffee one morning in the plush law offices of James, Williston, and Hand, when the telephone rang. It was Bryan’s client, a dermatologist named Neal, who was worried about a patient he had referred. Neal explained to Bryan that a month ago he had seen Sam at his office, but quickly referred him to Marie, the dermatologist with the office down the street. Sam has been calling his practice ever since and threatening to sue him for abandonment because he didn’t like the care he had received from the physician assistant who he had seen at Marie’s office. Neal was concerned about any liability he might have. After listening to Neal’s story, Bryan started the discussion. [pagebreak]
Bryan: Well, Neal, let’s start with the basics. How long were you in the room with Sam, how extensive a history did you take, how thoroughly did you examine him, and did you charge him?
Neal: I went into the room and was with Sam for less than five minutes. As you know, I only treat skin cancer. I looked at Sam’s rash and told him that Marie would be the best physician in the area to treat him. I had my nurse give him their phone number and we didn’t charge him a dime. Aren’t medical services like any other contract? Don’t I have to offer my services and doesn’t the patient have to accept them for me to be his physician?
Bryan: That’s basically correct. Traditionally courts have viewed providing medical services like any other contractual situation and required offer, acceptance, and a promise to pay (consideration). Courts look closely at the interaction that doctors have with the person. Did the doctor’s conduct show that he voluntarily accepted the individual as a patient? If you had charged Sam that would almost certainly have established a doctor-patient relationship, but the fact that you didn’t charge him is immaterial. [pagebreak]
Neal: I was only in the room for five minutes, and all I did was take a look at his arm and tell him that Marie would be a better doctor for him.
Bryan: In most states there is no explicit bright-line test to determine how much time or the extent of involvement needed to establish a doctor-patient relationship. A court will look at not only how long you were with the patient but, most critically, the extent of your interaction. Courts tend to look at doctors as being in a relatively authoritative position and patients, or prospective patients, as being in a more vulnerable position. What it boils down to is this: did your conduct indicate that you were willing to accept Sam as a patient? It sounds like you may be in the clear here, but you know lawyers these days.
Neal: With my malpractice premiums, I sure do! So what can I do to protect myself in the future?
Bryan: Some of my other clients limit their dermatology practices to specific areas, such as dermatologic surgery, psoriasis, or pediatric dermatology, and have screening procedures to make sure that only qualified patients get into the examination room with the doctor. Any medical practice with particular limitations on new patients can benefit from having those patients sign an intake form acknowledging the restrictions prior to seeing the physician. Although this isn’t iron-clad, it goes a long way with the courts to show that the doctor did not intend to enter into a doctor-patient relationship unless the patient met the restrictions of the practice. [pagebreak]
Also, when referring someone you do not wish to accept as a patient, consider providing the names of a few physicians or sending the patient to a local physician referral service. Sending that person to one specific medical specialist can be seen as having evaluated the patient’s needs and the referral itself might be viewed as a treatment recommendation. Although this is not a particularly strong legal argument, it is easily avoided by following my suggestion.
Neal: What about the fact that Sam was seen by Marie’s PA? Can I be liable for anything her assistant may have done wrong?
Bryan: Relax, Neal. In virtually all situations the supervision of the assistant is Marie’s responsibility. Unless you had a prior basis for knowing that Marie’s assistant was incompetent, an accusation of negligent referral would be hard to prove.
Neal: That sounds pretty good, but now I have another question. I have a patient who has a melanoma on his face and who makes it clear that he will not tolerate a visible scar. What should I do?
Bryan: Great question, but we’ll talk about that next time.