• Oregon Finds Existence of Physician/Patient Relationship in Neurosurgeon’s Telephone Consult with Emergency Room
  • December 11, 2009
  • Law Firm: Holland & Hart LLP - Denver Office
  • In the absence of a contract or direct physician/patient contact, when does a telephone consult ripen into a professional relationship?  The general rule seems to be that in the absence of some connection with the patient, merely listening to another physician’s description of a patient’s symptoms and offering a professional opinion regarding the proper course of treatment is not enough to imply a physician’s consent to a physician-patient relationship with the patient. The consulted physician is generally considered to be offering only informal assistance to a colleague. Se, e.g., Reynolds v. Decatur Memorial Hospital, 660 NE. 2d 235(1996).

    In Mead v. Legacy Health System et all and David Adler, M.D. (A130969, filed October 29, 2009), the Oregon Court of Appeals found that the fact that the defendant Dr. Adler,  a neurologist was “on-call” was sufficient to change the relationship from one of an informal consult among professionals to a direct relationship with the patient. The court indicated that the fact that Dr. Adler was on call, did not alone result in the direct connection to the patient, but coupled with his undertaking to provide advice, there was sufficient mass to result in a physician patient relationship.

    Although there were differences between the physicians as to what happened, the emergency room physicians contacted Dr. Adler, the on-call neurosurgeon, about the plaintiff who appeared in the ER having difficulty walking with severe low back pain and weakness in her legs. She appeared to have a condition known as cauda equina syndrome, which is a compression of nerves at the base of the spinal cord, usually requiring immediate surgery.  Dr. Adler suggested that she be given pain medicine and be sent home. When advised that she could not walk, he suggested that she be kept overnight for observation. He testified that he never assumed responsibility for her care and didn’t expect to be involved in her case unless he was called in the event of the deterioration of her condition.

    Four days later following a conclusive MRI showing cauda equine syndrome, Dr. Adler operated on her. The plaintiff, at the time of trial, was unable to walk without assistance and incontinent in bowl and bladder. The trial judge submitted the question of Dr. Adler’s consult duty to the jury which returned a verdict in his favor. The court of appeals reversed finding that in the absence of a material factual dispute; the court should have determined the existence of a physician-patient relationship as a matter of law. If a physician is on-call and a question arises outside the scope of his or her expertise, the physician should make clear that he or she is accepting no responsibility for the patients care and treatment.