February 1998 Bulletin

Malpractice trap can be sneaky

If surgeons want to reduce their exposure to malpractice lawsuits, they must first understand when such exposure can begin, such as in an informal social setting

by David B. Mandell

It is extremely important for surgeons to understand when a doctor-patient relationship may be created. Under established legal principles, a doctor can be held liable for malpractice only if the patient first shows that a doctor-patient relationship existed between the two. Thus, if surgeons want to reduce their exposure to malpractice lawsuits, they must first understand when such exposure can begin (e.g., when the doctor-patient relationship commences).

Unfortunately for surgeons, the establishment of a doctor-patient relationship is much less formal than one would expect. Most physicians, in fact, are conditioned to believe that such a relationship starts when a doctor sees the patient in a formal consultation, on the operating table or in another face-to-face situation. The courts, however, have not followed such a narrow definition. In fact, the doctor-patient relationship has been implied (and significant liability imposed) in situations where the physician has neither seen the patient, nor even spoken to him. Consider the following issues surrounding the establishment of the doctor-patient relationship.


The first type of doctor-patient relationship that one should consider is one that has been established in an informal social setting. To use an example, let us take the case of an acquaintance (named Bill). Bill tells an orthopaedic surgeon (named Steve) about some mild back pain while they are both out on the golf course on a Saturday. Steve suggests that this is probably due to minor muscle strain and that Bill should give him a call on Monday morning if the pain persists.

In the interim, however, Bill becomes sicker and his wife urges him to go to the emergency room. Having spoken with Steve, Bill feels reassured and tells his wife that there is no need to do so. When conditions worsen, however, he ultimately winds up in the emergency room with an acute myocardial infarction, which has progressed to the point where serious complications ensue. Although he had never sought formal consultation from Steve, Bill may have relied upon Steveís advice that this was only a mild muscle strain. Relying on Steveís advice, possibly a reasonable course of action under the circumstances, Bill chose not to visit the hospital earlier.

If Bill can show that a doctor-patient relationship was created by their conversation, then the law will measure Steveís actions against a reasonable standard of care - what other physicians in Steveís medical community would have done under similar circumstances. Unfortunately, the other side will always be able to produce experts to testify that a physicianís behavior was not reasonable under the test. Here, they might suggest that "reasonable conduct" would have been for Steve to diagnose that Bill might suffer from a myocardial infarction, to tell Bill to go to the emergency room or to instruct Bill to call him later that day. Armed with these "what if" alternatives and pleading to a sympathetic jury, Bill could certainly win a substantial award here - as long as he can first establish the crucial doctor- patient relationship.


The emergence of managed care contracts has allowed courts to imply a doctor-patient relationship between a consulting doctor and an "invisible patient" - one that the physician has neither seen nor spoken to yet. According to one courtís rationale, stated in a now-famous case out of Texas, Hand v. Tavera and Humana Hospital, a managed care contract may actually create a doctor-patient relationship between a plan physician and every plan member the moment the doctor signs the managed care contract, regardless of whether the physician has met any particular patient.

In this way, a plan doctor, when called upon, may owe each plan enrollee a contractually articulated duty of care. Moreover, when performing utilization review or on-call coverage, the plan doctor may be viewed as acting within the scope of a doctor-patient relationship, even though the physician has never seen nor spoken to the patient.

Combine (1) the likelihood of misdiagnosis when consulting on a patientís case without the benefit of a physical examination and (2) the imposition of a doctor-patient relationship between the consulting doctor and the invisible patient and one gets a malpractice powder keg. To combat this potential liability, make sure you practice risk management techniques and think twice before giving medical advice informally or in a situation where you cannot examine the patient.

David B. Mandell, an attorney and lecturer in Beverly Hills, Calif., has developed The Doctorís Asset Protection Kit© which shows doctors how to shield their practice from lawsuits while saving taxes. The kit is available from Guardian Publishing at (800) 554-7233.

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