asked to evaluate information and make a medical decision, and he agreed to do so. In evaluating the status of the labor and approving the transport, he estab- lished a physician-patient relationship and accepted the duty to comply with the applicable standard of care.24
The
court did not analyze the issue regarding whether the physician was contractually obligated to render services to the pa- tient, but noted that the physician actu- ally did render services to the patient.25
Third party A doctor’s examination of a person sole- ly for the benefit of a third party, such as to determine the person’s fitness for employment or extent of disability for a workers’ compensation claim, does not create a physician-patient relation- ship because the examination is not per- formed for the individual’s benefit or to treat the individual.26 For example, when a doctor exam- ines a person for the sole purpose of a workers’ compensation assessment, no physician-patient relationship likely ex- ists and the doctor’s only duty is to con- duct the examination in a manner not to cause harm to the person he or she is examining.27
When a physician examines a nonpa- tient for the benefit of a third party, he or she might not have the duty that arises from the physician-patient relationship — the duty to exercise appropriate pro- fessional judgment and care. The phy- sician, however, remains liable for any injury he or she may cause during the procedure. This is the “duty not to in- jure.”28
Indeed, one court held that the phy-
sician’s duty not to injure the examinee did not include a duty to inform her of a finding of a mass on her lung during an examination, because no physician- patient relationship existed.29
The court
noted that the examinee, who later died of cancer, did not select the physician, did not submit to the examination to re- ceive medical treatment, and did not ask the physician to inform her of his find- ings. The purpose of the examination, at the request of the Texas Rehabilitation Commission, was to determine her reha- bilitative potential.
50 TEXAS MEDICINE November 2012
Summary
The existence of a physician-patient re- lationship depends on the facts of each particular case. Rather than relying on the precedent of Texas cases, which can always change in future holdings, a physician should take great care before assuming there is no physician-patient relationship. Physicians should consider the existence of a formal or implied con- tract, actions that may change the course of treatment for a patient, and bylaws or other agreements potentially requiring them to provide care in certain circum- stances. n
References 1. St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995). Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex. App. — San Antonio 1988, no writ).
2. Ortiz v. Shah, 905 S.W.2d 609, 611 (Tex. App. — Houston [14th Dist.] 1995, no writ).
3. See St. John v. Pope, 901 S.W.2d at 423; Dough- erty v. Gifford, 826 S.W.2d 668, 674 (Tex. App. — Texarkana 1992, no writ). (Physician-patient relationship existed between patient and doc- tors at laboratory who examined biopsy and misdiagnosed cancer.)
4. St. John v. Pope, 901 S.W.2d at 424; Haws v. Gorbett. 480 S.W.2d 607, 609 (Tex. 1972).
5. Stanford v. Cannon, 2011 WL 2518856 (Tex. App. —Texarkana 2011, no pet.).
6. At the time this action arose, a laser hair re- moval device could be used without a physician or health care provider present and was not sub- ject to state regulation.
7. Dougherty v. Gifford, 826 S.W.2d at 675. 8. St. John v. Pope, 901 S.W.2d at 423; Hand v. Tavera, 864 S.W.2d 678, 680 (Tex. App. — San Antonio 1993, no writ); Lection v. Dyll, 65 S.W.3d 696 (Tex. App. — Dallas 2001, pet. de- nied).
9. Hand v. Tavera, 864 S. W. 2d at 680. 10. Id. 11. Id. 12. Id. at 620. 13. Lection v. Dyll, 65 S.W.3d at 696. 14. See Lopez v. Aziz, 852 S.W.2d at 306. 15. Lopez v. Aziz, 852 S.W.2d at 306. 16. See St. John v. Pope, 901 S.W.2d at 424; see also Day v. Harkins & Munoz, 961 S.W.2d at 281; Ortiz v. Shah, 905 S.W.2d at 611; Wheeler v. Yet- tie Kersting Memorial Hosp., 866 S.W.2d 32, 38 (Tex. App. — Houston [1st Dist.] 1993, no writ).
17. Day v. Harkins & Munoz, 961 S.W.2d 278 (Tex. App. — Houston [1 Dist.] 1997, no pet.); Ortiz
v. Shah, 905 S.W.2d at 611; Lopez v. Aziz, 852 S.W.2d at 306.
18. St. John v. Pope, 901 S.W.2d at 424. 19. Id. at 422. 20. Id. at 424 (emphasis added). 21. Id. 22. Id. at 423. 23. Wheeler v. Yettie Kersting Memorial Hospital, 866 S.W.2d at 39.
24. Id. at 39-40. 25. Id. Distinguishing Fought v. Solce, 821 S.W.2d 218, 220 (Tex. App. — Houston [1st Dist.] 1991, writ denied) (no physician-patient rela- tionship where physician on “voluntary” on-call status refuses to see the patient) and Childs v. Weis, 440 S.W.2d 104, 106-107 (Tex. Civ. App. — Dallas 1969, no writ).
26. See Johnston v. Sibley, 558 S.W.2d 135, 137- 38 (Tex. App. — Tyler 1977, writ ref’d n.r.e.); Ramirez v. Carreras, 10 S.W.3d 757 (Tex. App. — Corpus Christi 2000, pet. denied); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 709 (Tex. Civ. App. — Dallas 1963, writ ref’d n.r.e.); Ramirez v. Carreras, 10 S.W.3d at 762; Alma- guer v. Jenkins, 9 S.W.3d 835, 838 (Tex. App. — San Antonio 1999, no pet.); Wilson v. Winsett, 828 S.W.2d 231, 232–33 (Tex. App. — Ama- rillo 1992, writ denied); Johnston v. Sibley, 558 S.W.2d at 138.
27.Johnston v. Sibley, 558 S.W.2d at 135-36; Ramirez v. Carreras, 10 S.W.3d at 762.
28.Ramirez v. Carreras, 10 S.W.3d at 762; Johnston v. Sibley, 558 S.W.2d at 135-36.
29.Wilson v. Winsett, 828 S.W.2d at 231.
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