patient had a contract with Humana.10 The two contracts gave the patient a right to care from the doctor on call.11 The Humana doctor responsible for au- thorizing hospital admissions denied the patient admission, recommending out- patient treatment. The patient left the hospital and suffered a stroke. The court held that when a health plan’s insured shows up at a participating hospital emergency department, and the plan’s designated doctor is consulted, there is a physician-patient relationship, and the doctor owes the patient a duty of care.12 Additionally, hospital bylaws can impose a duty on a physician.13
In one
such case, hospital bylaws said “an on- call physician is obligated to provide emergency medical care to a patient in the emergency room,” and the court ap- parently considered the bylaws to be a contract.
The emergency physician had phoned the on-call neurologist the results of test- ing, and the neurologist opined that fur- ther treatment was unnecessary because the patient likely had a hemiplegic mi- graine. The court determined the neurol- ogist made a medical decision concerning the need for treatment and admission; therefore, he committed “affirmative acts” toward the patient’s treatment, even though he never examined the pa- tient or reviewed tests. The neurologist failed to prove there was no physician- patient relationship because he was (1) under a contractual obligation with the hospital to assist the emergency physi- cian in treating the patient, and (2) he actually consulted with and advised the emergency physician about the patient. A consensual physician-patient rela-
tionship probably does not exist, how- ever, when a doctor merely offers advice to a colleague.14
For example, a court
found no physician-patient relationship when an obstetrician did no more than answer a treating physician’s profession- al inquiry by telephone. The physician never contacted, examined, or treated the patient. The court noted there was no evidence the obstetrician contracted with the treating physician or anyone else to perform any services for the patient.15
On-call physician The mere fact that a doctor is on call does not create a physician-patient rela- tionship nor does it impose any duty on the doctor to treat the patient.16
The re-
lationship is consensual, and when there is no prior relationship, the doctor must take some action to treat the patient be- fore the relationship is established.17 The Texas Supreme Court found that an on-call physician had not formed a physician-patient relationship when he only expressed his opinion to the emer- gency physician by phone that the pa- tient should be transferred elsewhere. The patient had presented with fever and back pain following recent back surgery, and the on-call physician stated that the patient should be transferred to a facility that had a neurosurgeon or to the patient’s surgeon.18
The patient went
home and ultimately suffered permanent disabilities from meningitis.19 Although the on-call physician lis- tened to the emergency physician’s de- scription of the patient’s symptoms and made a conclusion regarding the basis of the patient’s condition, “he did so for the purpose of evaluating whether he should take the case, not as a diagnosis for a course of treatment.”20
He never agreed
to examine or treat the patient, and there was no evidence of an agreement requiring the on-call physician to treat the patient.21
A physician may decline
treatment and thereby decline to create a physician-patient relationship, even on the basis of an erroneous conclusion that the patient’s condition is beyond his or her ability to treat.22 A case with an apparently different
result involved an eight-month pregnant patient who asked emergency medical technicians (EMTs) to transport her to a hospital 90 miles away.23
The EMTs first
took her to the nearest hospital to deter- mine whether she could safely travel the distance. Two nurses assessed the pa- tient and telephoned their findings to an on-call general practitioner. The on-call physician approved the transport; dur- ing the trip, there was a breech delivery and the baby died.
In the lawsuit that followed, the court held that a physician-patient relation- ship existed because the physician was
November 2012 TEXAS MEDICINE 49
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