Physician Phone Consultation Leads to Potential Liability
By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
News: A patient with heart palpitations arrived at an emergency department (ED). An emergency physician (EP) contacted a cardiologist, who advised moving the patient to a stepdown unit for less urgent treatment. However, the patient suffered a posterior myocardial infarction and died the following morning.
The patient’s estate filed a lawsuit, claiming the care providers — including the cardiologist — acted negligently and failed to diagnose or treat the infarction. The cardiologist filed a motion seeking dismissal from the case, which was denied by the trial court and confirmed by the appellate court.
Background: A 53-year-old man sought treatment at an ED for heart palpitations. The patient informed care providers he had undergone coronary bypass surgery. An EP evaluated the patient and ordered an ECG, which confirmed the patient’s tachyarrhythmia, a rapid heart rate, and abnormal rhythm. Additionally, the ECG revealed ST depressions in the V1-V3 leads, which also is called “the early precordial leads.” The patient’s blood tests showed evidence of a heart attack: His troponin (a protein that leaks from damaged muscle cells, including the heart) level was 9.24 ng/mL, while a normal range is 0.058 ng/mL.
The EP performed a cardioversion, which temporarily worked, although the patient experienced nausea and vomiting. The EP believed the medication caused the nausea and vomiting; however, even after the EP reversed the medications, the patient’s symptoms continued. The EP ordered a chest X-ray, which was performed two hours after the patient’s arrival. The X-ray revealed additional abnormal findings of congestive heart failure and pulmonary edema.
Based on these circumstances and symptoms, the EP believed the patient suffered a non-ST-elevated myocardial infarction (NSTEMI), which is a heart attack that does not display ST segment elevations on an ECG, and which does not need to be treated as urgently as a STEMI. With this diagnosis in mind, the physician contacted the on-call cardiologist and relayed the patient’s high troponin and ST segment depression on the early precordial leads. The cardiologist recommended transferring the patient to the stepdown unit, and he would “take it from there.”
The EP transferred the patient to the stepdown unit, where his condition worsened. The patient developed respiratory distress and was admitted to the ICU. At 1:30 a.m., approximately six hours after the patient’s admission, an internist placed a formal, written order for consultation with the same cardiologist. At 8:30 a.m., an ICU nurse contacted a different cardiologist, who took the patient to the cardiac catheterization lab within 15 minutes. The procedure revealed a complete occlusion of one of the patient’s coronary artery grafts. During the procedure, a clot broke free and caused cardiac arrest. The patient died shortly after catheterization.
The patient’s estate filed suit, claiming the initial cardiologist breached the standard of care by failing to suspect a posterior myocardial infarction, by failing to review the ECG, and by failing to perform a catheterization. An expert physician argued the patient should have been taken to the cardiac catheterization lab within 90 minutes of his arrival at the hospital. The defendant cardiologist filed a motion for summary judgment, arguing his initial phone call was not a formal consultation and he could not have done anything until he was formally consulted at 1:30 a.m., by which point it was too late.
The trial court disagreed, finding the cardiologist accepted the referral of and responsibility for a critically ill patient admitted to a unit one step down from an ICU. According to the court, the cardiologist’s instruction was not an informal recommendation the requesting physician could accept or reject. The cardiologist entered a physician-patient relationship triggering a duty of care at the time of the initial phone consultation. An appellate court agreed, holding the cardiologist in the case with a potential for liability based on the duty of care.
What this means to you: This case is an example of how a physician-patient relationship can be formed, even when no direct contact occurs between the physician and patient, or even when the physician is informally consulted by phone. Fundamental for a claim of malpractice is the existence of this physician-patient relationship. If there is no relationship, the physician owes no duty to the patient, and cannot be found to have breached such a duty. But once the relationship exists, a physician owes a duty of care to the patient and must perform within the applicable standards of care.
In this matter, the cardiologist argued the physician-patient relationship was only formed later, after a formal written order for consultation. As a result, the cardiologist claimed he could not be liable because, by then, the patient’s condition was irreparable. However, the patient’s estate successfully argued the phone consult between the EP and the cardiologist created the physician-patient relationship — even though the patient was not a part of that consult. When the EP called the cardiologist, the cardiologist answered and willingly provided his medical opinion and recommendation, stating the patient should be transferred to the stepdown unit and he would “take it from there.”
The court’s analysis provided specific examples of what the cardiologist could have done to negate the physician-patient relationship or to prevent the creation of such a relationship. One option would have been to say, “Write a formal consult, and then I will decide whether to give instructions about the patient’s care.” Alternatively, the cardiologist could have informed the EP he had no opinion about what to do, and that he would not form any opinion or provide any advice until someone wrote a formal consultation.
The court also discussed a distinguishable case wherein an EP asked a specialist to come to the hospital, but the specialist stated he was not feeling well and would not go to the hospital. Moreover, the specialist told the EP she should contact another physician to assist. Fortunately, a physician’s on-call status alone does not create a physician-patient relationship. But when an on-call physician receives a description of the patient’s condition, provides advice, or directs the course of the patient’s treatment, that evidences the physician’s consent to a relationship. Not only is there a physician-patient relationship established when the cardiologist gave an opinion and a recommendation to the EP — which the EP followed — but the cardiologist was obligated to conduct a thorough review of the patient’s symptoms and of the diagnostic testing before rendering that opinion and recommendations, especially moving the patient to a lower level of care. This patient was showing evidence of cardiopulmonary distress that required immediate attention and intervention in the most intensive care location available — in this case, the cardiac catheterization lab. A step-down unit, often called a telemetry unit, provides a cardiac monitor and a crash cart, but not the vital instrumentation or the personnel with the highest levels of training this patient emergently needed.
These examples shed light on what care providers can do to indicate there is no physician-patient relationship, and thus no duty to the patient. Conversely, a physician-patient relationship may be deemed to exist when a provider has performed an action, such as participating in the patient’s diagnosis or treatment, indicates the provider consented to the relationship. A provider’s consent to a physician-patient relationship may be demonstrated by a variety of conduct, including through a phone consultation. According to the court, this was not a “curbside consultation” in which one physician informally solicited a colleague’s opinion. Providers should be cognizant and cautious about their actions and statements that may establish physician-patient relationship, particularly with the ever-increasing avenues for patients to seek and receive medical advice and the growth of telemedicine.
Finally, note that once the physician-patient relationship exists, a provider is obligated to adhere to the applicable standard of care. On the merits of care in this matter, the plaintiff’s expert noted the standard of care required a consulting cardiologist to suspect a posterior myocardial infarction. Furthermore, the expert claimed that given the information available, the consulting cardiologist was under a duty to review the ECG and examine the patient, which would have made the posterior injury undeniable. These positions were consistent with the cardiologist who eventually performed the catheterization, revealing the importance and accuracy of the expert’s testimony.
- Decided July 14, 2022, in the State of Michigan, Court of Appeals, Case Number 356558.
This case is an example of how a physician-patient relationship can be formed, even when no direct contact occurs between the physician and patient, or even when the physician is informally consulted by phone.
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