An Oregon woman went to the emergency room for treatment of symptoms including an inability to walk due to severe low back pain and weakness in her legs. The resident charged with evaluating this patient placed a phone call to the on-call Neurosurgeon. The resident indicated that the patient had a bulged disk, and asked the Neurosurgeon for his advice as to whether this particular patient should be admitted to the neurology department for further testing and evaluation. Based on the limited information provided to the Neurosurgeon, he determined that the patient should be admitted- but not to neurosurgery. Instead, the Neurosurgeon advised that the patient should be admitted for pain management. Four days later it was determined that the patient was suffering from cauda equina syndrome, a serious neurologic condition. What was once thought of as a “bulged disk” was actually a herniated disk. This herniated disk was pressing on a sheath of nerves (the cauda equina) that control a person’s ability to move their legs and control certain bodily functions.
Once the severity of the situation was understood, the patient was immediately operated on to alleviate and remove the pressure. Unfortunately, the delay from the patient’s initial presentation to the hospital and subsequent surgery resulted in permanent damage to her ability to control her bladder and bowel functions. The patient brought suit against various providers, including the Neurosurgeon who was initially contacted and who had advised against neurosurgery. The patient argued that if she had been brought to neurosurgery for treatment and evaluation earlier- she would not have suffered the permanent injuries she sustained due to the delayed diagnosis. The question became- was there actually a doctor-patient relationship between the patient and the Neurosurgeon?
In Massachusetts, like in most jurisdictions such as Oregon, in order to have a medical negligence claim (also known as a medical malpractice claim), a person must show:
- A doctor-patient relationship existed;
- the doctor failed to conform to good medical practice;
- the doctor’s negligence caused the patient’s injury.
In the case mentioned above- it was determined that there was no doctor-patient relationship between the on-call Neurosurgeon and the patient. As a result, the patient was unable to meet the first hurdle of proving her medical malpractice claim. A doctor-patient relationship exists, for the purpose of a medical malpractice action, when the doctor participates in the care and treatment of the patient. This relationship must exist at the time when the patient suffers from the injury he or she complains of. The case in Oregon determined that merely providing advice to a colleague about that colleague’s patient does not give rise to a doctor-patient relationship. The colleague is only offering an opinion, not a course of treatment or diagnosis. The consulting physician has limited information that is based on what the treating doctor believes is relevant and crucial for any possible diagnosis. The colleague, who does not have the benefit of using his or her own senses to make a first-hand determination, may not know that they are rendering a decision affecting a specific patient- or just rendering advice to a hypothetical question. Continue reading →