Physician-patient relationship: What to know to better protect yourself from liability

Today physicians and other healthcare providers are always on the guard against malpractice suits. Whether it is patient falls, botched surgeries or failure to diagnose, physicians must accept the reality of an increasingly litigious society.

However, many physicians today are finding themselves on the wrong side of lawsuits for patients that they never even saw or treated. This can happen when a plaintiff claims that a physician was providing healthcare to them by virtue of assisting another physician or performing some other menial task that results in their name in the plaintiff’s medical records.

So how can you know when you have officially entered into a physician-patient relationship?

Establishing the physician-patient relationship

A physician’s liability for malpractice is predicated upon a finding that a consensual agreement exists between the patient and the physician, which establishes a relationship under which the physician owes the patient a duty of care. (See Harris v. Kreutzer, 271 Va. 188, 198 (Va. 2006).) A physician-patient relationship between the provider and the patient is necessary for a medical provider to owe that patient a duty of care. (Id.) The consensual nature of the physician-patient relationship may be express or implied, meaning it can be actually stated orally and/or written, or it could be implied from the surrounding circumstances (Id. At 199.)

The general test for determining whether a physician-patient relationship exists is whether a physician provided health care to the patient. (See Jacobs v. Harris, 89 Va. Cir. 236 (2014).) Virginia Code § 8.01-581.1 defines “patient” as “any natural person who receives or should have received health care from a licensed health care provider.” The Virginia Code defines “health care” as “any act … or treatment performed or furnished … by any health care provider on behalf of a patient during the patient’s medical diagnosis, care, treatment, or confinement. (Id.)

Whether a physician-patient relationship is created is a question of fact, turning upon a determination of whether the patient entrusted his treatment to the physician and the physician accepted the case. (Id.)

Notably, if a physician undertakes to diagnose, treat, or prescribe for a patient’s ailment, then he or she can be responsible for failure to adhere to the applicable standard of care. (Id. at 237.)

Again, there need not be a formal agreement or contract in order for a physician-patient relationship to be established. In fact, no face-to-face contact between the patient and physician is required. (See Monahan v. Obici Med. Mgmt. Servs., 59 Va. Cir. 307 (2002).) A doctor who assumes to act, even if gratuitously, may thereby become subject to the standard of care even if that doctor owed no duty to the patient prior to this undertaking. (See Jacobs v. Harris, 89 Va. Cir. 236, 237 (2014).)

What constitutes action on behalf of the physician?

For the standard of care to arise, a physician must personally engage in some affirmative act amounting to a rendering of services to another. (See Fruiterman v. Granata, 276 Va. 629, 645 (2008).) The bar for what constitutes an act is considerably low and may arise when a physician diagnoses, treats or prescribes for a patient during the patient’s medical diagnosis, care, treatment, or confinement.

Virginia courts have held that Rule 4:10 examinations, reading X-rays, reviewing pathology slides and rendering a diagnostic opinion to another physician on behalf of his patient, all amount to actions that are sufficient to establish a physician-patient relationship. (See generally Harris v. Kreutzer, 271, VA. 188 (Va. 2006); Monahan v. Obici Med. Mgmt. Servs., 59 Va. Cir 307 (2002); Jacobs v. Harris, 89 Va. Cir. 148 (2011); Fruiterman v. Granata, 276 Va. 629 (2008).)

Ultimately, if a court finds that an act is sufficient and that it occurred during the patient’s medical diagnosis, care, treatment, or confinement, then a physician can be on the hook and subject to the standard of care. (See Jacobs v. Harris, 89 Va. Cir. 236 (2014).)

When does the physician-patient relationship end?

The practitioner or the patient may terminate the relationship. In either case, the practitioner shall make a copy of the patient record available, unless otherwise prohibited access by law. A practitioner shall not terminate the relationship or make his services unavailable without documented notice to the patient that allows for a reasonable time to obtain the services of another practitioner. (Title 18 of the Virginia Administrative Code § 85-20-28(B)(1)-(2).)

An exception to this is that any physician-patient relationship that may be created by virtue of an on-call physician or his agent evaluating or treating a patient in the emergency department of a corporation, facility, or institution licensed or owned or operated by the Commonwealth to provide health care, shall be deemed terminated without further notice upon the discharge of the patient. (Va. Code Ann. § 54.1-2962.2.)

Essentially, the physician-patient relationship continues indefinitely during the course of treatment and does not terminate until (a) the physician and patient mutually agree to conclude the relationship, (b) the patient unilaterally concludes the relationship, (c) care and treatment is no longer necessary, or (d) the physician explicitly withdraws from providing care so long as the patient is afforded a reasonable opportunity to acquire the services she needs from another physician.

Key takeaways to avoid liability

A healthcare provider must be cautious in what services it is offering to certain people. When a health care provider offers advice that can be construed as a diagnosis, treatment, or prescription services for a patient, then the provider may have established a physician-patient relationship. This relationship can be established even if a separate doctor is consulting you about that doctor’s patient. These facts could potentially implicate several doctors that could be named in a suit for malpractice.

What physicians can do is be very intentional and aware of what cases they are involved in, no matter how small. This could include being more reluctant to perform consultations for other providers, provide only certain recommendations, or at the very least to make sure that any advice given is sound and within the applicable standard of care.

Physicians should be careful in any advice they give or diagnoses that they make as this may open them up to liability. Additionally, if a consulting physician agrees to give advice regarding another doctor’s patient, then the consulting physician needs to be sure that they are giving good advice that can be held up against the scrutiny of the standard of care. Anything less than this may open up a healthcare provider to unwanted liability, even if they never saw the patient. If a physician is already seeing a patient then they will need to make sure they wrap things up appropriately, either by ending the need for care to be provided, the patient ending the relationship, or the physician ending it and giving proper notice of their termination and opportunity for the patient to find a new physician.

In conclusion physicians do not need to give medical advice to patients who are not under their care, even if doing it gratuitously or in passing. Make sure at the end of each patient relationship that it is properly terminated and that the patient either requires no more health care, you have mutually agreed to end the relationship, or you have notified the patient of abandonment in writing and have given them the proper notice to find a new healthcare provider in your place. Implementing these habits into your practice should lessen your exposure to liability for medical malpractice.

Joseph Matherly is an attorney in the Johnson City, Tennessee, office of Hancock Daniel & Johnson. He practices in the area of medical malpractice defense.