The viability of any negligence claim, including a medical negligence claim, is predicated on the defendant's duty to exercise reasonable care. In a medical negligence claim, this duty arises out of the physician-patient relationship. Two circumstances, however, test the limits of this duty: the conduct necessary to establish a physician-patient relationship and the potential liability of physicians to individuals who are not patients.
DUTY AND THE PHYSICIAN-PATIENT RELATIONSHIP
Four elements are essential to a medical negligence cause of action:
A legal cognizable duty that requires the health care provider to conform to a certain standard of conduct to protect an individual from an unreasonable risk (adherence to the applicable standard of care)
The health care provider's failure to discharge the duty to exercise reasonable care
Resulting actual injury to the claimant
A reasonably close causal connection between the health care provider's conduct and the resulting actual injury (1) The first element, the duty to exercise reasonable care, is predicated on the existence of a health care provider–patient relationship. Most often, this is a physician-patient relationship. If no such relationship exists, the health care provider cannot be negligent (2). In Texas, whether or not a physician-patient relationship exists has been held to be a question of law that is determined by the court, not the jury (3).
There is, however, a jury instruction on the physician-patient relationship in the Texas Pattern Jury Charges, a set of uniform instructions or questions used to guide the courts and litigants on how issues should be submitted to juries for resolution. Thus, there may be unique circumstances under which a court may rule that the question of a physician-patient relationship is to be decided by the jury. The instruction about the physician-patient relationship states, “A physician-patient relationship exists only if the physician has agreed, expressly or impliedly, to render medical services of a specified or general nature to the person claiming such a relationship” (4).
The creation of a physician-patient relationship does not require the formalities of a contract and does not necessarily require direct dealings between the physician and the patient (5). However, for a relationship to be established, there must be evidence that the parties consensually entered into the relationship. For example, if an on-call physician receives information about a patient's symptoms and complaints from the emergency department physician and comes to a conclusion about the patient's condition and what should be done to evaluate or treat that condition, a relationship can be established (6). In contrast, if an on-call physician does not agree to examine or treat a patient and receives information about the patient only to decide whether or not to take the case, there is no evidence of a physician-patient relationship. The physician cannot be liable for any failure to diagnose or treat in this situation, because there is no duty to act under the circumstances (5).
Importantly, the mere fact that a physician is on call at a health care facility is not sufficient to establish a physician patient relationship with any patient who presents to the health care facility and needs the specific services of that on-call physician, unless the on-call physician agrees to accept that individual as a patient (7). In addition, if a physician merely responds to the professional inquiry of a colleague about a patient's condition or treatment, with no evidence that the physician consulted was going to care for the patient, no physician-patient relationship exists (8). In fact, even if a physician agrees to come to the hospital to see a patient with whom no prior physician patient relationship exists, this agreement cannot establish a physician-patient relationship (9). In this situation, a physicianpatient relationship does not exist until the physician actually takes affirmative action to treat the patient.
As with almost every other facet of health care, interplay with managed care entities can complicate this analysis. If a health care provider is a member of a specific health care plan and a patient on that plan presents to the provider for care and treatment, a health care liability claim can be asserted against the physician, even though he or she may not have consented to care for that specific patient at that time (10). Here, the physician's consent to enter a physician-patient relationship is implied due to the contractual relationship between the health care provider and the patient's health care plan.
An issue that the courts have not yet addressed in this circumstance centers on physicians who have “closed” practices under the applicable plan. In situations involving new patients, one cannot find implied consent, since the physician has closed the practice to new patients. The physician has only agreed to see individuals with whom there is already a physician-patient relationship. Thus, there is no support for the rationale utilized above to imply consent.
These cases show that creation of a physician-patient relationship requires an affirmative act by the physician to provide care and treatment to the patient in question. The affirmative act must be something more than basic information gathering and apparently must entail some affirmative measure to diagnose or treat the patient (9). While consent may be implied by virtue of a physician's contractual agreement with a managed care plan (10), it appears that consent cannot be implied solely from being on call at a health care facility (7).
THIRD PARTIES
The question of a duty to third parties, individuals who are not patients, is an extensive and hotly contested area. States have wrestled with this question for >30 years (11). The most well known cases involve mental health care and whether or not a mental health care provider has a duty to warn individuals that patients may target or otherwise threaten in the context of the therapeutic relationship (12).
In 1987, the El Paso Court of Appeals looked at a situation in which a mental health care patient escaped from a facility, jumped in front of an individual's car, and caused a motor vehicle accident in which that individual was injured. After examining whether or not the health care facility had any duty to warn the injured driver, the court found that health care providers had a duty to protect their patients' “readily identifiable” victims (13). However, it held that the facility in question was not liable, since the patient manifested no threat or danger to a “readily identifiable” person. The plaintiff was simply a member of the general public, and the patient never suggested that this individual was within an identifiable group of potential victims. Thus, there was no liability for the accident and resulting injuries.
In 1994, the Texas Supreme Court reviewed a situation in which a psychologist was alleged to have misdiagnosed a child patient with sexual abuse by the father (14). The father sued the psychologist for this alleged misdiagnosis. The court held that the psychologist could not be liable, even if there was a misdiagnosis, since the psychologist had no duty to protect third parties, such as the patient's father, from any misdiagnosis of the patient. It did not address the “readily identifiable” victims situation discussed above. The Texas Supreme Court left open for consideration whether, under certain circumstances, a health care provider may have a duty to third parties. The Texas Supreme Court indicated that factors to consider when determining whether a legal duty may exist to third parties are
The risk at issue
The foreseeability and likelihood of injury weighed against the social utility of the health care provider's conduct
The magnitude of the burden of guarding against the injury
The consequence of placing such a burden on the health care provider (14)
In 1998, potential liability to third parties for a failure to properly diagnose was again reviewed by the Texas Supreme Court (15). In that case, 2 hospital employees were killed and another was injured when they tried to subdue a violent patient. The incident occurred after the patient's attending physician had transferred the patient to a private room on an unsecured floor. The claim was that the physician had misdiagnosed and mistreated the patient's condition, and as a result the patient became violent and attempts to subdue him were necessary. The Texas Supreme Court found that the case turned on allegations that the physician had misdiagnosed and mistreated the patient's condition. Any duty of proper diagnosis and reasonable care of that patient was found to result from a physician-patient relationship. Any duty, as well as any benefit, of such a relationship belonged only to the patient. Accordingly, the physician had no duty to appropriately diagnose and treat the patient in order to avoid injuries that the patient might inflict on hospital employees (16). Again, the “readily identifiable” victim standard was not addressed.
Also in 1998, the Texas Supreme Court addressed a case in which an epileptic patient suffered a grand mal seizure while driving, resulting in a motor vehicle accident that killed another driver (17). The issue was whether treating physicians have a duty to third parties to warn epileptic patients not to drive. In reviewing the 4 factors discussed above, the court found that the benefit of warning an epileptic not to drive was incremental, as epileptic patients know they are subject to seizures, even while driving. In contrast, the consequences of imposing a duty to warn on physicians were great. Further, responsibility for safe operation of a motor vehicle should rest primarily on the driver. The court also held that an epileptic driver can ascertain whether or not it is safe to continue to drive once the epilepsy has been diagnosed and he or she has suffered seizures. Based on these factors, the court declined to impose a duty to third parties on physicians to warn epileptic patients not to drive. Thus, the physician could not be liable for the other driver's death.
Similarly, in another case an emergency room physician treated a patient for cocaine ingestion, after which the patient left the emergency room and was involved in an automobile accident. The court refused to hold that the health care provider owed a duty to the accident victim to control the patient's conduct: the physician did not contribute to the driver's impairment, and there was no relationship between the physician and the accident victim (18).
In 1999, the Texas Supreme Court addressed patient threats against third parties (19). In this situation, however, the Texas Supreme Court failed to impose the duty on mental health care providers to protect their patients' “readily identifiable” victims as established by the El Paso Court of Appeals and followed by other Texas appellate courts (20). The supreme court specifically held that there is no duty to not negligently diagnose or treat a patient who runs from a mental health care provider to a nonpatient third party and that there is no duty to warn third parties of a patient's threats against them (19). The holding of no duty from a mental health care provider to a third party to not negligently treat a patient reaffirmed prior supreme court decisions (14, 15). Failure to warn, however, had not been addressed by the Texas Supreme Court, and its ruling struck down the “readily identifiable” victim standard previously applied by appellate courts.
The court's decision that a duty to warn did not exist was based on confidentiality issues. The court noted that statutory provisions established the confidential nature of communications between patients and their mental health care providers. These communications could not be disclosed to third parties unless an exception applied. The applicable statutes had no exception that allowed for disclosure to third parties threatened by a patient. An exception did allow disclosure of this information to law enforcement authorities. This provision, however, was permissive in nature and not mandatory. As such, the court did not feel that there was an appropriate basis on which to create a duty for mental health care providers to warn. Further, the court noted that in addition to not requiring disclosure, the statute did not penalize the mental health care provider for failing to disclose the information to authorities. Moreover, the statute did not provide any shield to mental health care providers for their good faith disclosure of threats. Thus, the court's interpretation was that the statute did not create or support a duty but gave mental health care providers discretion to warn. This decision was further supported by the court's rulings in prior cases rejecting a duty to act in other circumstances in which disclosure of patient information by a physician was statutorily permissive.
When you compare these decisions that uniformly reject attempts to extend to health care providers a duty towards third parties with the decisions that discuss the physician-patient relationship, it is apparent that under Texas law a physician cannot be liable for medical negligence unless a physician-patient relationship exists. Such a relationship cannot be supported without an affirmative action by the health care provider indicating a willingness to accept an individual as his or her patient.
References
- 1.Price v. Hurt 711 S.W.2d 84, 86 (Tex. App.—Dallas 1986, no writ); Cloys v. Turbin 608 S.W.2d 697, 700 (Tex. Civ. App.—1980, no writ).
- 2.See St. John v. Pope 901 S.W.2d 420, 423 (Tex. 1995); Byrd v. W.C.W 868 S.W.2d 767, 769–770 (Tex. 1994); Lopez v. Aziz 852 S.W.2d 303 (Tex. App.—San Antonio 1993, no writ).
- 3.See Byrd 868 S.W.2d at 769; Salas v. Gamboa 760 S.W.2d 838, 840 (Tex. App.—San Antonio 1998, no writ).
- 4.P.J.C 50.6—Malpractice, Premises & Products (1998).
- 5.St. John 901 S.W.2d at 424.
- 6.Wheeler v. Yettie Kersting Memorial Hospital 866 S.W.2d 32, 39–40 (Tex. App.—Houston [1st Dist.] 1993, no writ).
- 7.Fought v. Solce 821 S.W.2d 218 (Tex. App.—Houston [1st Dist.] 1991, writ den'd).
- 8.Lopez 852 S.W.2d at 307.
- 9.Ortiz v. Shaw 905 S.W.2d 609, 611 (Tex. App.—Houston [14th Dist.] 1995, writ den'd).
- 10.Hand v. Tavera 864 S.W.2d 678, 679 (Tex. App.—San Antonio 1993, no writ).
- 11.See, e.g., Underwood v. United States 356 F.2d 92 (5th Cir. 1966); Vistica v. Presbyterian Hospital 432 P.2d 193 (Cal. 1967).
- 12.See, e.g., Tarasoff v. Regents of the University of California 551 P.2d 334 (Cal. 1976).
- 13.Williams v. Sun Valley Hospital 723 S.W.2d 783, 787 (Tex. App.—El Paso 1987, no writ).
- 14.Byrd 868 S.W.2d 767, 769–770.
- 15.Van Horne v. Chambers 41 Tex. Sup. Ct. J. 1168 (July 3, 1998).
- 16.Van Horne 41 Tex. Sup. Ct. J. at 1171.
- 17.Praesel v. Johnson 969 S.W.2d 391, 398 (Tex. 1998).
- 18.Flynn v. Houston Emergicare, Inc 869 S.W.2d 403, 405–406 (Tex. App.— Houston [1st Dist.] 1993, writ den'd). But see Gooden v. Tipps 651 S.W.2d 364 (Tex. Civ. App.—Tyler 1983, no writ).
- 19.Thepar v. Zezulka 42 Tex. Sup. Ct. J. 824, 826 (June 24, 1999).
- 20.See Williams 723 S.W.2d at 787; Limon v. Gonzaba 940 S.W.2d 236 (Tex. App.—San Antonio 1997, writ den'd); Kehler v. Eudaly 933 S.W.2d 321 (Tex. App.—Fort Worth 1996, writ den'd).