Lead Opinion
An еmergency room doctor telephoned defendant (an on-call neurosurgeon) to ask his advice about plaintiff, who had come into the emergency room for treatment. When plaintiff later sued defendant for malpractice, the jury returned a verdict in defendant’s favor; the jury found that defendant was not acting as plaintiff’s doctor and, as a result, owed her no duty. The Court of Appeals reversed, holding that the trial court should have directed a verdict in plaintiff’s favor on that issue. Mead v. Legacy Health System,
The relevant facts can be summarized briefly.
“they had a patient who [had come into the emergency room who] had bad back pain, who was neurologically intact, who had [an] MRI with a disk bulge and who had normal rectal tone.”
Defendant understood that the resident was “ask[ing] for [his] advice *** to determine at this time whether the patient needs to be seen by a neurosurgeon,” and defendant’s advice was “to admit the patient tо the medical service for pain management.” Defendant testified at trial that, based on the information that the resident had provided him, he concluded that the patient did not need neurosurgery at that time — -a conclusion that was implicit in his advice to admit the patient for pain management. The resident did not ask defendant to see the patient,
Consistently with his statement that he did not do or say anything to become involved in plaintiff’s treatment, defendant did not admit plaintiff to the hospital under his care. Rather, plaintiff’s primary care physician, Dr. Kisor, admitted plaintiff to the hospital under her care. (At Legacy, the physician who admits a patient to the hospital is responsible for the patient’s care.) Later that day, plaintiff’s condition worsened, and Kisor asked a neurologist, Dr. Leonard, for his assistance. Leonard previously had treated plaintiff for migraine headaches, and he consulted with Kisor to determine the cause of plaintiff’s worsening condition. Their attempts to determine the cause of plaintiff’s condition were not successful, and her condition continued to deteriorate over the next few days.
On July 4, Kisor’s nurse called defendant to ask if he would see plaintiff. The nurse did not say that the request was urgent, and defendant asked the nurse to have Kisor call him. Defendant did so for two reasons. As a general matter, when asked to see another doctor’s patient, defendant’s praсtice is to speak with the doctor first so that he can ask the doctor questions about the patient’s condition. Additionally, and specific to this case, Kisor’s nurse told defendant that Kisor was concerned that plaintiff might have a conversion disorder. Because a conversion disorder is a psychological condition that neurosurgeons ordinarily do not treat, defendant did not understand why Kisor would ask for his help with that problem and wanted to speak with her before seeing plaintiff.
Kisor called defendant on July 5. After talking with her, defendant saw plaintiff that day. On examining plaintiff, defendant diagnosed plaintiff as suffering from cauda equina syndrome; specifically, defendant concluded that the MRI taken on July 1 showed that plaintiff had a herniated disk, not a disk bulge as the resident had reported. He also concluded from his review of the MRI and his examination of plaintiff that pulp from the center of the herniated disk had escaped and was pressing on a sheath of nerves (the cauda equina) that govern a person’s ability to move their legs and to control their bladder and bowel functions. Defendant operated immediately to remove the pressure. The operation was successful. However, the delay between the onset of the pressure and its removal resulted in substantial damage to the nerves governing plaintiff’s ability to control her legs and her bladder and bowel functions.
As a result of that damage, plaintiff filed an action against Legacy for the negligence of its employees and also against Leonard.
Approximately three weeks before the trial began, plaintiff entered into covenants with Legacy and Leonard not to execute on any judgment against them in return for a payment of $4 million. The agreements provided that, if plaintiff recovered more than $3 million from defendant, she would return $100,000 each to Legacy and Leonard. Although the covenants contemplated that Legacy and Leonard would remain as defendants in plaintiff’s action and participate as such at trial, the trial court ruled that, as result of entering into the covenants, no justiciable controversy remained among plaintiff, Legacy,
The case went forward solely against defendant. One of the issues at trial was whether defendant had entered into a physician-patient relationship with plaintiff on July 1. Both sides offered expert testimony on that issue, and each side’s expert based his оpinion on different testimony regarding what had happened that day. To help put the experts’ testimony in perspective, we briefly discuss a factual dispute that informs each expert’s opinion.
As noted, defendant testified that, on July 1, he had received a telephone call from a male resident working in the emergency room and that the male resident had told him the information quoted earlier in this opinion. An emergency room doctor, Aviva Zigler, had examined plaintiff when she came to the emergency room. Zigler testified that, after examining plaintiff, she had called defendant on July 1 and had spoken to him personally. According to Zigler, she told defendant more (and sometimes different) information about plaintiff than the male resident had told him. Zigler also testified that, although she had not explicitly asked defendant to see plaintiff, she believed that that request was implicit in her calling him in the first place. Defendant, for his part, testified that he had not spoken with Zigler but had received a call from a male resident.
With that background in mind, we turn to the experts’ opinions as to whether defendant entered into a physician-patient relationship with plaintiff on July 1 as a result of a call either from the male resident or Zigler. Dr. Hacker, a neurosurgeon, testified as an expert witness on behalf of defendant. When asked whether, “[i]n your judgment and based upon your training and experience, was there a physician-patient relationship between [defendant] and [plaintiff] over the period [from] July 1 until [defendant] saw her on July 5,” Hacker replied, “I didn’t see a doctor-patient interaction or relationship [between defendant and plaintiff] until * * * July 5.”
Hacker explained that an on-call physician will have an obligation to see and provide medical services to another doctor’s patient in two situations. The first situation occurs when the emergency room physician or another doctor asks the on-call physician for a consultation or, more colloquially, to see the patient. As Hacker explained,
“[A] consultation is very simply obtained. Somebody over the phone will say to me, ‘[doctor], I want you to see my patient’ or ‘[doctor], I want you to see this patient.’ And that’s in some regard, when I’m on-call for the emergency room or when I’m in a hospital where I have privileges, it’s stipulated by the by-laws that I am then obligated to help out. There is no saying, ‘Well, I can’t do this’ or T won’t do that.’ The minute the doctor says, ‘[doctor], I want you to see this patient,’ the answer is, Tes, I’ll be happy to.’ And that’s always the answer because that’s the rules.”
The second situation occurs, according to Hacker, if “the [on-call] physician had enough information on his [or her] own to conclude this is a patient that I should see.” According to Hacker, in both situations, an on-call physician will have an obligation to see and treat another doctor’s patient.
Regarding the first situation that Hacker identified, defendant testified that the resident with whom he spoke did not ask him to see plaintiff or provide medical services to her. According to defendant, the resident asked for advice only as to whether the patient needed to be seen by a neurosurgeon. Regarding the secоnd situation, there was evidence from which the jury could have found that the information defendant received from the resident would not have put a reasonable neurosurgeon on notice that “this is a patient [whom he] should see.” Specifically, the jury could have found that the information that defendant received from the resident omitted three critical facts that would have alerted a reasonable neurosurgeon that plaintiff could have, cauda equina
Plaintiffs expert, Dr. Kendrick, agreed, in part, with defendant’s expert. For example, Kendrick testified on direct examination:
“[W]hen a neurosurgeon is on call for *** a hospital, and receives a call from an emergency room doctor, a certain obligation is developed. And we as neurosurgeons, when we are on call and get such a call, have to respond, first of all. And if we’re asked to see a patient, then we’re obligated to undertake the care of that patient and a physician-patient relationship is established per se by the ER physician asking us to see someone.”
Consistently with his testimony on direct examination, Kendrick agreed on cross-examination that the “threshold issue, so to speak, [for establishing a physician-patient relationship] is [whether] the emergency room physician request[s] a neurosurgical consultation with [defendant].” Kendrick also testified, as Hacker had, that, if the emergency room physician described sufficient symptoms of a neuro-surgical condition, an on-call neurosurgeon would have an obligation to examine the patient and thus undertake thе patient’s care.
Kendrick agreed that the emergency room physician had not expressly asked defendant to see plaintiff. However, he opined that, in effect, the “emergency room physician was requesting that [defendant] become involved in [plaintiff’s] care.” He also concluded that the symptoms that the emergency room physician identified were sufficient to require defendant to see and examine plaintiff. It is worth noting that, when Kendrick referred to the “emergency room physician,” he appears to have been referring to Zigler, who testified that she had called defendant personally on July 1 to ask for his assistance in treating plaintiff; that is, Kendrick’s opinion relies on and tracks Zigler’s testimony regarding the call that she supposedly made to defendant on July 1.
Not only did the two experts reach different conclusions regarding whether the facts gave rise to an obligation on defendant’s part as the on-call neurosurgeon to see and provide treatment to plaintiff, but each expert appears to have based his opinion on a different set of facts. Hacker appears to have based his opinion primarily on defendant’s testimony, and Kendrick appears to have based his opinion primarily on Zigler’s testimony. As noted, the jury found that defendant had not entered into a physician-patient relationship with defendant on July 1, and the trial court entered judgment in defendant’s favor based on that finding.
The Court of Appeals reversed, holding that the only conclusion that the jury could have reached on this record was that a physician-patient relationship existed on July 1. See Mead,
On review, plaintiff commends the Court of Appeals’ reasoning to us. Alternatively, she contends that the trial court erred in instructing the jury on when a physician-patient relationship will arise and also in permitting defendant to impeach her witnesses based on the covenants that either they or their employer entered. We begin with the question that the Court of Appeals decided — whether there was any evidence in the record to support the jury’s verdict. Regarding that question, we will “uphold the jury’s verdict, unless our review of the record reveals that there is no evidence from which the jury could have found the facts” necessary to sustain its verdict. See Northwest Natural Gas Co. v. Chase Gardens, Inc.,
We begin by setting out the governing legal principles. In Oregon, as in most states, a physician-patient relationship is a necessary predicate to stating a medical malpractice claim. See Dowell v. Mossberg,
A physician-patient relationship may be either express or implied. See Dowell,
When a patient goes to a doctor’s office and the doctor examines the patient, ordinarily no one disputes that an implied agreement to provide medical care has been formed and that consequently an implied physician-patient relationship arises. Cf. Lyons v. Grether,
Historically, an implied physician-patient “relationship [has been] limited to physicians seen directly by the patient; the physician-patient relationship typically does not exist between the patient and physicians consulted by the patient’s personal physician.” Louisell & Williams, 1 Medical Malpractice § 8.03[2] [a] at 8-19 - 8-22 (footnotes omitted). More recently, however, courts have recognized that “[t]he fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.” St. John v. Pope,
“In light of the increasing complexity of the health care system, in which patients routinely are diagnosed by pathologists or radiologists or other consulting physicians who might not ever see the patient face-to-face, it is simply unrealistic to apply a narrow definition of the physician-patient relationship in determining whether such a relationship exists for purposes of a medical malpractice case.”
Kelley v. Middle Tennessee Emergency Physicians,
As the court recognized in Kelley, with increasing specializаtion in the medical profession, hospitals or medical groups may divide responsibility for providing medical services among a team of physicians, with some of the physicians responsible for performing only discrete medical services for the patient. A radiologist, for example, may interpret a patient’s x-rays and relay that interpretation to the patient’s primary care physician, who uses the radiologist’s interpretation to determine the course of the patient’s treatment. That division of responsibility for the patient’s care may arise as a result of custom or practice, without a formal referral or request for consultation. Faced with that division of services, some courts have sought to determine when a physician who has not personally examined a patient will enter into an implied physician-patient relationship by asking whether the physician has undertaken to provide a particular medical service to a patient. In Kelley, the court explained that “a physician-patient relationship may be implied when a physician affirmatively undertakes to diagnose and/or treat a patient, or affirmatively participates in such diagnosis and/or treatment.”
The standard articulated in Kelley depends, as an initial matter, on classifying a physician’s actions as either the “diagnosis” or the “treatment” of a patient’s condition. Some tasks that physicians perform, such as interpreting an x-ray, may be relatively easy to classify. Others, such as diagnosis, may pose more difficulty. As explained below, not every opinion that one physician offers another cоnstitutes a diagnosis; indeed, the same statement may be a diagnosis when made in one context but not when made in another. That is, the question whether a physician’s expression of an opinion constitutes a diagnosis will vary depending on, among other things, the customary practice within the relevant medical community, the degree and the level of formality with which one physician has assumed (or the other physician has ceded) responsibility for the diagnosis or treatment, the relative expertise of the two physicians, and the reasonable expectations, if any, of the patient under the circumstances.
In our view, the standard should not be whether a judge or a jury would classify a statement as a diagnosis or the provision of treatment. Rather, it should be whether a physician who has not personally seen a patient either knows or reasonably should know that he or she is diagnosing a patient’s condition or treating the patient. If the jury finds that, in light of the factors identified above, the physician either knew or reasonably should have known that he or she was diagnosing the patient’s condition or providing treatment to the patient, then an implied physician-patient relationship exists and the physician owes the patient a duty of reasonable care.
With that standard in mind, we turn to plaintiff’s argument that the trial court erred in denying her motion for a directed verdict. Her argument on that point starts from the proposition that two facts are undisputed: (1) in response to the resident’s telephone call on July 1, defendant offered his
Regarding the first fact on which plaintiff relies, the courts consistently have held that merely providing advice to a colleague about that colleague’s patient does not give rise to a physician-patient relationship. See, e.g., Irvin v. Smith,
The Illinois Appellate Court’s decision in Reynolds is illustrative. In that case, the parents of a two-year-old brought their child into the hospital emergency room. Reynolds,
When the child suffered severe complications, his parents sued Fulbright for malpractice, and the Illinois Appellate Court upheld a decision granting summary judgment in Fulbright’s favor. See id. at 236. The court held that Fulbright had merely offered an opinion to the emergency room doctor about the possible causes and treatment of the child’s condition; that act was not sufficient to give rise to a physician-patient relationship between Fulbright and the child. Id. at 239. The court was careful to note the limits of its holding, however. It reasoned:
“[T]his is not a case in which Fulbright was asked to provide a service for [the child], conduct laboratory tests, or review test results. Fulbright did nothing more than answer an inquiry from a colleague. * * * A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed. * * * This is not a case in which Fulbright had accepted a referral of the patient. *** Nor is this a case in which a physician undertook to direct the actions of hospital employees in a telephone conversation with an emergency room nurse.”
Id. (citations omitted).
We agree with the decisions from other states that advising a colleague about the possible causes of a patient’s illness or the proper course of treatment for a patient does not necessarily give rise to an implied physician-patient relationship.
Plaintiff does not appear to dispute that proposition. That is, plaintiff does not contend
In considering the effect of defendant’s on-call status on the analysis, we note, as an initial matter, that the obligations that flow from a physician’s on-call status are not uniform. Compare Hiser v. Randolph,
In this case, neither party identified any hospital policy or agreement between defendant and Legacy that specified defendant’s obligations as an on-call physician. Rather, both parties offered expert testimony on the customary practice in the community. Both Hacker and Kendrick testified that, based on that customary practice, defendant had an obligation as the on-call neurosurgeon to provide care to plaintiff if the emergency room doctor asked him for a consultation or, as Hacker put it, if the emergency room doctor asked defendant to “see” plaintiff. Hacker also testified that, if defendant “had enough information on his own to conclude this is a patient that [he] should see,” then defendant had an obligation as the on-call neurosurgeon to examine or “see” plaintiff and thus enter into a physician-patient relationship with her — a proposition with which plaintiff’s expert agreed.
As explained above, there was evidence that neither condition occurred in this case. Specifically, the jury could have found that the resident who telephoned defendant on July 1 did not ask him to examine or see plaintiff. Rather, he only asked for defendant’s advice as to whether plaintiff needed to be seen by a neurosurgeon. The jury also could have found that the symptoms that the residеnt described to defendant depicted a person with a bad back, not someone suffering from cauda equina syndrome. See note 5 above. Finally, the jury could have inferred that those two conditions defined the limits of the obligations that flowed from defendant’s status as the on-call neurosurgeon; that is, the jury could have inferred that, unless one of those two conditions existed, defendant’s status as the on-call neurosurgeon had no effect on the question whether his advice gave rise to a physician-patient relationship.
Put differently, neither Hacker nor Kendrick testified that the advice defendant gave on July 1 in his capacity as the on-call neurosurgeon was sufficient, without more, to give
To be sure, the jury could have drawn a different inference. It could have credited other witnesses and inferred that, in light of defendant’s greater expertise in neurosurgery and the allocation of responsibility between emergency room doctors and on-call physicians, the advice that defendant offered the resident effectively ruled out neurosurgical problems as a сause of plaintiff’s condition and, as a result, defendant should have known that he was rendering a diagnosis on which the resident and others would rely. The jury, however, was not required to draw that inference. It bears repeating that, when a jury has returned a verdict in favor of a party, we must “uphold the jury’s verdict, unless our review of the record reveals that there is no evidence from which the jury could have found the facts” necessary to sustain its verdict. Northwest Natural Gas Co.,
We note that the conclusion that we reach in this case is consistent with those courts that have considered similar claims. No court has held that an on-call physician’s status coupled with advice about a patient’s condition or treatment establishes, as a matter of law, that an implied physician-patient relationship existed. Rather, the courts have held that the combination of those facts either creates a question of fact for the jury or leads to a ruling, as a matter of law, in favor of the on-call physician. See, e.g., Cogswell v. Chapman,
Indeed, on almost identical facts, the Texas Supreme Court held that no physician-patient relationship existed as a matter of law. See St. John,
“At no time did [the on-call physician] agree to examine or treat [the patient]. Although [the on-call physician] listened to [the treating doctor’s] description of [the patient’s] symptoms, and came to a conclusion about 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.”
Id. Although we question whether the Texas Supreme Court correctly held that no juror could find that the on-call physician in that case had entered into a physician-patient relationship, we agree that a juror could have inferred on those facts (as on these) that no physician-patient relationship existed. The trial court correctly declined to direct a verdict in plaintiff’s favor on the question whether defendant entered into a physician-patient
Plaintiff argues alternatively that, even if there were evidence from which the jury could have found that defendant did not enter into a physician-patient relationship with her on July 1, the trial court erred in instructing the jury on that issue. In the Court of Appeals, plaintiff assigned error both to the trial court’s refusal to give her requested instructions and also to the instruction that the trial court gave. We begin with plaintiff’s challenges to the trial court’s instruction.
The trial court instructed the jury:
“In order for [defendant] to be liable for negligence in caring for [plaintiff], he must have had a physician-patient relationship with her. In other words, his actions or failure to act cannot be negligence towards [plaintiff] if she was not his patient when he acted or failed to act.
“If a doctor actually examines a patient, there is a physician-patient relationship.
“Also, if another doctor who is treating a patient calls a specialist, who is on-call, the specialist has a physician-patient relationship with the patient, if,
“(1) the doctor who calls the specialist asks the specialist to see the patient and the specialist does not make it clear to the calling doctor that he or she will not do so or,
“(2) the specialist says he or she will see the patient or,
“(3) the specialist takes some affirmative action to diagnose and/or treat the patient showing an intent to participate in the diagnosis, сare or treatment of the patient.
“If a physician is ‘on-call,’ he or she has a duty to be available, to be contacted by emergency room physicians or other health care providers. However, an on-call physician is not automatically in a physician-patient relationship with every patient in the emergency room or the hospital. Also, there is no automatic physician-patient relationship between a specialist and a patient simply because an emergency room doctor or other health care provider calls the specialist to talk about the patient, even if the specialist gives general advice.”
At trial, plaintiff objected to the trial court’s proposed instruction on the ground that paragraph (3) includes an erroneous phrase: “showing an intent to participate in the diagnosis, care or treatment of the patient.” Plaintiff argued that she did not “think [a physician] should get a get-out-of-jail-free card by saying I didn’t intend. If he takes affirmative actions that are implicitly indicating that he is participating in the diagnosis, I think you have got it covered.” On review, plaintiff reasserts the objection she raised below. Defendant, for his part, argues that the instruction correctly required the jury to find not only that he undertook to diagnose plaintiff but also that he intended to do so. As we understand defendant’s argument, he contends that a finding of intent is necessary to establish that he impliedly consented to entering into a physician-patient relationship.
The trial court’s instruction required the jury to infer from defendant’s acts “an intent to participate in the diagnosis, care or treatment of the patient.” As explained above, however, it is sufficient if defendant either knew or reasonably should have known that he was diagnosing plaintiff’s condition or providing treatment to plaintiff. In that event, a physician-patient relationship arose and defendant owed a duty of reasonable care to plaintiff. In requiring the jury to find “an intent to participate in the [patient’s] diagnosis, care, or treatment,” the trial court required too much. Defendant does not argue that, if the trial court erred in requiring the jury to find intent, the error was harmless. Such an argument would be difficult to make. An instruction that required proof of intent when a lesser mental state will suffice prejudiced plaintiff. See Wallach v. Allstate Ins. Co.,
The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
The Court of Appeals decision “ [Reversed [the trial court’s judgment] and remanded for [a] new trial with instructions to provide [a] peremptory instruction to [the] jury on the existence of a physician-patient relationship.” Mead,
Because the jury found that defendant had not entered into a physician-patient relationship with plaintiff, we stаte the facts consistently with that finding. See Northwest Natural Gas Co. v. Chase Gardens, Inc.,
Plaintiff’s claim against Legacy focused on two of its employees — her primary care doctor, Kisor, and an emergency room doctor, Dr. Zigler. (Zigler was not the male resident who had called defendant.) Defendant was not an employee of Legacy, nor was Leonard.
As noted, plaintiff does not dispute that, if a physician-patient relationship did not exist until July 5, she has no claim against defendant.
The jury could have found the following three omissions: First, the resident described the patient’s disk problem as a disk bulge rather than a disk herniation. Only the latter poses a risk of cauda equina syndrome. Second, the resident described the patient’s rectal tone as “normal” and did not say that the patient was not able to urinate. An inability to control bowel and urinary functions is a symptom of cauda equina. Third, the resident described the patient as neurologically intact and did not mention weakness or inability to move her lower limbs. Such weakness can signal cauda equina. If the jury credited defendant’s testimony, it could have found that the information he received depicted a person with a bad back who should be treated conservatively and that the patient did not require the services of a neurosurgeon at that time.
The jury also found that defendant had not entered into a physician-patient relationship with plaintiff on July 3, 2002. Beсause plaintiff has not argued on appeal that the trial court should have directed a verdict on that issue, we have not set out the facts regarding that issue.
An action for medical malpractice “antedated any fully developed theory of negligence as a separate basis for action.” Allan H. McCoid, The Care Required of Medical Practioners, 12 Vand L Rev 549, 551 (1954). The proposition that a physician’s duty extends only to those persons whom he or she agrees to treat derives from cases implying a duty on the physician’s part to “use reasonable and ordinary care and diligence” as an incident of an agreement to provide medical treatment. See, e.g., Leighton v. Sargent, 27 NH 460, 471 (1853) (implying a duty to use due care and diligence as part of a contract to provide medical services to a patient).
One state court of appeals has held that a plaintiff need not prove a physician-patient relationship as a prerequisite to stating a medical malpractice claim. Diggs v. Ariz. Cardiologists, Ltd.,
The court recognized in Hiser that ordinarily “a medical practitioner is free to contract for his services as he sees fit and in the absence of prior contractual obligations, he can refuse to treat a patient, even under emergency situations.”
Defendant has not argued that some different obligation flowed from his status as an on-call physician, and we assume, for the purpose of analyzing plaintiff’s argument, that Hacker and Kendrick’s testimony accurately described the scope of defendant’s obligations as an on-call neurosurgeon.
Because the issue is likely to arise on remand, we note that the trial court’s instruction appears to track the evidence adduced at trial; that is, it attempts to describe the evidence regarding the practice in the medical community instead of identifying a legal standard and permitting the jury to determine whether the facts, considered in light of the practice in the medical community, met that standard.
As noted, plaintiff also argues that the trial court erred in allowing defendant to ask Leonard and Legacy’s employees whether they were aware that Legacy and Leonard had entered into so-called Mary Carter agreements. More specifically, the parties disagreed whether the “rebate” provisions of those agreements were still in effect after the trial court dismissed Legacy and Leonard as defendants and, if not, whether defendant could still seek to impeach the witnesses with the fact that Leonard or Legacy had entered into the agreements. On that issue, plaintiff’s counsel represented that plaintiff, Legacy, and Leonard had modified the agreements after the trial court dismissed Legacy and Leonard as defendants, although plaintiff never submitted the modified agreements to the court. Because this issue may not arise in the same posture on remand, we decline to address it.
Concurrence Opinion
concurring.
I agree with the reasoning and outcome of the majority opinion. I write separately only to raise two concerns about the jury’s task in this case and to offer some observations about the record that may be pertinent to the parties in the event of a new trial on remand.
Although the jury may not have understood as much, part of its duty in this case was to determine what effect defendant’s obligations as the relevant on-call specialist (at the time hospital staff sought his advice about plaintiff) had on the formation of a physician-patient relationship between himself and plaintiff. My first concern is with the kind of evidence that the parties presented — seemingly out of necessity — to prove that defendant’s obligations as the on-call neurosurgeon either were, or were not, the sort of obligations from which a physician-patient relationship could be inferred in the circumstances. In particular, I find it problematic that the jury was required to base its-determination for the most part on the opinions of opposing experts.
The majority opinion points out that the obligations that flow from a physician’s on-call status apparеntly are not uniform, and “can vary from one institution to the next depending on the institution’s policies, if any; the terms of any agreement to serve as an on-call physician; or, in the absence of institutional policies or an agreement, the customary practice in the relevant medical community.”
In this case, the parties relied entirely on expert testimony about the customary practice of on-call neurosurgeons in the medical community. Although certain of Legacy Portland Hospitals’ bylaws and rules were offered to show that defendant was obligated to participate in the hospitals’ emergency room “on-call rotation,” no rule, policy, or agreement was offered that spelled out defendant’s specific obligations when he was serving as an on-call medical specialist. Apparently no such rule, policy, or agreement existed. And, as I deduce from my own research, that state of affairs, i.e., the failure of hospitals to spell out specific on-call obligations
I find it surprising, and a bit dismaying, that hospitals have chosen to leave their relationships with on-call providers to the vicissitudes of what is deemed to be the common practice in the medical community. Given the increasing complexity of the health care industry, the increasing dependence of that industry on institutional resources, the increasing tendency of institutional providers to diagnose patients through specialists who have never seen the patients face-to-face, and the increasing, and perfectly reasonable, tendency of patients to look to institutional providers, rather than the particular doctor that they see, to provide medically appropriate services,
My second concern arises out of the trial court’s instruction to the jury about when and how a physician-patient relationship might arise between an on-call specialist and an emergency room doctor’s patient. The majority opiniоn finds that instruction to be erroneous on the specific ground that plaintiff identified, but it also hints that the instruction may be problematic in another way. See
According to the majority opinion (with which I agree), the essential “test” for the existence of a physician-patient relationship, when the physician has not dealt with the patient directly, is whether, in light of the particular circumstances, the physician “either knows or reasonably should know that he or she is diagnosing a patient’s condition or treating the patient.”
In the present case, the parties offered the testimony of several experts relevant to the question of whether, in light of defendant’s on-call status and the customary practices of persons engaging in such on-call
Because I agree with the reasoning and outcome of the majority opinion, and including my observations set out above, I concur in the decision of the court.
See
Dissenting Opinion
dissenting.
It is undisputed that defendant agreed, as a condition of obtaining hospital privileges, to serve as an on-call physician and respond to calls for advice and assistance from emergency room physicians. It is also undisputed that on July 1, 2002, in that capacity, defendant received a call from an emergency room physician seeking, in defendant’s own words, his advice “to determine at this time whether the patient needs to be seen by a neurosurgeon.”
Those undisputed facts establish that defendant assumed to exercise, and did exercise medical duties on plaintiff’s behalf on July 1. The legal conclusion that follows from those facts is inescapable: The court will imply the existence of a physician-patient relationship and defendant is subject to liability to plaintiff if he failed to perform those services with reasonable care. Because the majority holds otherwise, I respectfully dissent.
The majority begins by stating that “without a physician-patient relationship ‘“there c[an] be no duty to the plaintiff, and hence no liability.”’”
To demonstrate the fundamental nature of the majority’s error, I begin, as the majority does, with Dowell and its citation to Currey, an earlier legal malpractice case. In Dowell, the court quoted a passage from Currey, in which the court explained that a professional has a “duty” tо exercise “reasonable care and skill” when the professional assumes to exercise the duties of the profession on behalf of another:
“‘Where one adopts the legal profession, and assumes to exercise its duties in behalf of another for hire, the law imposes a duty to exercise reasonable care and skill, and if an injury results to his client from want thereof he is liable to respond in damages to the extent of the injury sustained.’”
Dowell,
“‘When there is a contract, either express or implied, from which a common-law duty results, an action on the case lies for a breach of that duty, in which case the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action.’”
Dowell,
■ "What the court explained in Dowell, in the terms that the court in Currey used in 1900, is that a professional cannot be held liable for damages incurred by another merely because the professional possesses skills and expertise that, if exercised, may have prevented those damages. However, when a professional assumes to exercise and exercises professional duties on behalf of a particular person, the professional does so pursuant to a contract, either express or implied. That contract has legal consequences: It creаtes a physician-patient relationship, requires the exercise of reasonable care, and subjects the physician to liability for failure to exercise that degree of care.
Oregon statutory law also requires that a licensed physician perform medical duties with reasonable care. Specifically, ORS 677.095(1) requires that licensed physicians “use that degree of care, skill and diligence that is used by ordinarily careful physicians * * * in the same or similar circumstances in the community of the physician.” ORS 677.085 sets forth the acts that constitute the practice of medicine and that require licensure,
Under Dowell and Oregon statutory law, application of the standard of due care depends on the physician’s exercise of medical duties on behalf of a patient and not on the existence of an actual relationship or a personal meeting between the two. So, for instance, a radiologist may examine a patient’s medical condition by reviewing x-rays outside of the presence of that patient and without ever meeting or forming a relationship with him or her. Under Dowell, because the radiologist has exercised the duties of the medical profession on behalf of that person, the law recognizes the existence of an implied contract to do so. That implied contract creates an implied physician-patient relationship and subjects the radiologist to liability if he or she fails to exercise due care in the performance of his or her medical duties. Under Oregon statutory law, because the radiologist is engaged in the practice of medicine, the law requires the exercise of “that degree of care, skill and diligence that is used by ordinarily careful physicians * * * in the same or similar circumstances in the community of the physician[,]” ORS 677.095(1), and subjects the radiologist to liability for negligence if he or she falls below that level of care.
Thus, when a court says that liability depends on the existence of a physician-patient relationship, what it means is that liability depends on the existence of the predicate facts that give rise to an implied, not an actual, physician-patient relationship. When a physician exercises medical duties on behalf of a particular person, those predicate facts give rise to an implied physician-patient relationship, require the exercise of reasonable care, and subject the physician to liability for negligence. The existеnce of an implied physician-patient relationship is a legal consequence of the predicate facts; it is not itself a factual inquiry. Therefore, the term “physician-patient relationship” does not have significance apart from those predicate facts or the legal consequences that flow from those facts. It is only a label that courts use to make short-hand reference to those predicate facts and their legal consequences.
At points in its opinion, the majority seems to understand and agree with that proposition. The majority frames the standard that determines the existence of the implied physician-patient relationship in terms of the necessary predicate facts: “whether a physician who has not personally seen a patient either knows or reasonably should know that he or she is diagnosing a patient’s condition or treating the patient.”
Applying the standard that the majority articulates, the question should be whether the uncontested facts established that, on July 1, defendant knew or reasonably should have known that he was diagnosing, or determining the nature of, plaintiffs mеdical condition. However, the majority instead looks to the testimony of expert witnesses who were not asked to consider, and who did not address, that question.
The majority cites the testimony of doctors Hacker and Kendrick, both of whom testified about whether, to meet the community standard of care, defendant was required to come in to the hospital on July 1 to see and care for plaintiff. Both of those physicians testified that, when an emergency room physician requests that a neurosurgeon “see” a patient, or when the neurosurgeon obtains sufficient information to alert the neurosurgeon of the need to do so, the neurosurgeon must come to the hospital and personally see and examine the patient. In this case, Hacker, who testified for defendant, opined that, although defendant did not go to the hospital to see plaintiff on July 1, he met the community standard of care because the emergency room physician did not request that defendant “see” plaintiff, and the information that the emergency room physician relayed was not sufficient to alert him that he should do so. Kendrick, who testified for plaintiff, concluded that the emergency room physician had requested defendant’s participation in plaintiff’s care. Neither witness questioned the assumption that defendant was required to exercise reasonable care in the duties that he actually performed on July 1 — answering the call from the emergency room physician and giving his expert advice. Instead, the experts testified at length about the significance of the information that defendant obtained about plaintiff’s medical condition on July 1 and whether the conclusion that he reached — that plaintiff was not a neurosurgical candidate — was reasonable in light of that information and the applicable standard of care. That testimony created an issue of fact as to whether defendant met the standard of care on July 1. However, it did not create a question of fact as to whether defendant was required to exercise reasonable care on that date.
Neither Hacker nor Kendrick disputed that defendant was performing medical duties when he responded to the call from the emergency room physician on July 1. As Kendrick testified, “we as neurosurgeons, when we are on call and get such a call have to respond, first of all.” The witnesses also did not dispute that defendant obtained the results of plaintiff’s physical, neurological, and MRI examinations and provided the emergency room physician with his expert opinion that plaintiff’s condition was such that she was not a candidate for neurosurgery. Because those facts demonstrate that defendant knew or should have known, on July 1, that he was examining and determining the nature of, or “diagnosing,” plaintiff’s medical condition and that defendant was performing medical duties on behalf of plaintiff, legal consequences flow from those facts: The law implies the existence of a physician-patient relationship and imposes a duty of reasonable care.
Furthermore, whether defendant met the community standard of care by the actions that he did not take — failing to “see” and treat plaintiff on July 1 — does not address whether defendant met the standard of care by the actions that he did take — in examining and determining the nature of plaintiff’s medical condition on that date. Harkening back to my previous example, customary
The majority’s reliance on Hacker’s conclusory testimony is misplaced for the same reasons. When asked whether, “[i]n your judgment and based upon your training and experience, was there a physician-patient relationship between [defendant] and [plaintiff] over the period [from] July 1 until [defendant] saw her on July 5,” Hackеr replied, “I didn’t see a doctor-patient interaction or relationship [between defendant and plaintiff] until the first note I read by [defendant] on July 5.” (Emphasis added.) The question was neither posed nor answered in terms of whether the predicate facts that give rise to an implied physician-patient relationship were established. Those facts — that defendant exercised medical duties on behalf of plaintiff on July 1— were proved. Hacker’s testimony that no personal interaction occurred on that date does not negate those facts and cannot negate their legal consequences: An implied physician-patient relationship existed, defendant was required to act with reasonable care, and he was subject to liability if he did not. Unlike the majority, defendant does not argue that Hacker’s testimony creates a question of fact about whether an implied physician-patient relationship existed on July 1, and for good reason. That conclusion follows as a matter of law from the predicate facts; it is not itself a factual inquiry amenable to expert testimony.
This is not a case like those that the majority cites from other jurisdictions, in which the physician whose conduct is at issue did not serve in a formal on-call capacity,
“the customary practice within the relevant medical community, the degree and the level of formality with which one physician has assumed (or the other doctor has ceded) responsibility for the diagnosis or treatment, the relative expertise of the two physicians, and the reasonable expectations, if any, of the patient under the circumstances.”
The question that defendant himself poses for this court’s decision is really quite simple: Whether an on-call neurosurgeon who provides telephone advice that is only a suggestion or a recommendation or that an emergency room physician rejects can be subject to liability for negligence.
Defendant described the purpose of his discussion with the emergency room physician as follows:
“The discussion was relatively brief. There was no real sense of urgency. It was a sort of a phone call for advice, what do I — what do you think, this patient has disk bulge on MRI, but she also has this bad back pain and what do you think we ought to do.”
Defendant testified that his perception was that the phone call was intended to
“ask about a patient, to be a — ask for advice, to give advice, and to determine at this time whether the patient needs to be seen by a neurosurgeon.”
Defendant testified that he was informed that plaintiff “had bad back pain, who was neurologically intact, who had [an] MRI with a disk bulge and had normal rectal tone.” Defendant testified that “neurologically intact” meant that no neurological deficits had been found during a neurological exam. He explained that a typical neurological exam
“consists of several components. It consists of doing a mental status exam, being awake, alert and oriented to person, place and time, doing a cranial nerve exam, which are certain nerves that go to predominantly the face and neck and viscera of the chest and abdomen, and doing a sensory and motor exam, as well as a rectal exam to evaluate bowel and bladder, bowel specifically.”
ORS 677.085 provides:
“A persоn is practicing medicine if the person does one or more of the following:
“(1) Advertise, hold out to the public or represent in any manner that the person is authorized to practice medicine in this state.
“(2) For compensation directly or indirectly received or to be received, offer or undertake to prescribe, give or administer any drug or medicine for the use of any other person.
“(3) Offer or undertake to perform any surgical operation upon any person.
"(4) Offer or undertake to diagnose, cure or treat in any manner, or by any means, methods, devices or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity, defect or abnormal physical or mental condition of any person.
“(5) Except as provided in ORS 677.060, append the letters ‘M.D.’ or ‘D.O.’ to the name of the person, or use the words ‘Doctor,’ ‘Physician,’ ‘Surgeon,’ or any abbreviation or combination thereof, or any letters or words of similar import in connection with the name of the person, or any trade name in which the person is interested, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions mentioned in this section.”
ORS 677.001(4) defines “diagnose” to mean:
“to examine another person in any manner to determine the source or nature of a disease or other physical or mental condition, or to hold oneself out or represent that a person is examining another person. It is not necessary that the examination be made in the presence of such other person; it may be made on information supplied eithеr directly or indirectly by such other person.”
The term “physician-patient relationship” is confusing because it can refer to an actual, personal bond or a relationship that is created by law. Some members of a patient’s medical team may form actual, personal bonds with their patients while others will not. It is confhsing to explain the duty of care as arising from the existence of a physician-patient relationship when the relationship may exist only as a matter of law and not as a matter of fact. The term is unnecessary, and I advocate that it he avoided.
Both the majority standard and Oregon law capture the concept that the genesis of a physician’s tort duty is in contract and depends on his or her consent— either express or implied- — to perform medical duties for a patient. The majority standard does so by requiring that the physician’s diagnosis or treatment occur under circumstances indicating that the physician knew or should have known that he or she was performing medical duties on behalf of a patient. Oregon law does so by requiring that the circumstances indicate that the physician assumed to exercise and did exercise medical duties on behalf of a patient.
I agree that physicians who give advice of an informal or general nature may not be subject to liability. See, e.g., Jennings v. Badgett,
I agree that on-call physicians who do not actually provide advice or medical services of any kind may not be subject to liability. See, e.g., Reynosa v. Huff,
This also is not a case that arose on a defendant’s motion for summary judgment. The cases from foreign jurisdictions that the majority cites,
See Fazzolari v. Portland School Dist. No. 1J,
In his brief in this court, defendant identifies the question presented and the proposed rule of law as follows:
“Question Presented: When does a physician-patient relationship arise between an emergency room patient and an on-call neurosurgeon, when that neurosurgeon is consulted over the telephone by the ER physician?
“Proposed Rule of law: An implied physician-patient relationship arises when a physician affirmatively undertakes to diagnose and/or treat the patient. However, such a relationship will not arise where an on-call physician, consulted over the telephone regarding an emergency room patient, provides advice that is only a suggestion or recommendation regarding the patient’s treatment that can be either accepted or rejected by the ER physician, or if the advice is rejected by the ER physician.”
(Emphasis added.)