The second situation involves the duty to treat that arises from the initial patient contact. This duty sometimes seems very unfair because if punishes the physician who tries to help a little and does not punish the one who refuses to help at all. However, this is not as unjust as it seems. A good example is the "take two aspirin and see me in the morning" problem. Say the parents of a sick child call a pediatrician; either of two situations could arise. In the first, the physician listens to the symptoms, decides the illness is not serious, and tells the parent that the child will not be accepted as a patient, that if they are worried they should take the child to an emergency room. In this case, either the parents are not reassured and take the child to the emergency room, or they keep the child at home. But they must make the decision themselves.
In the first case, the physician may be called on to defend the treatment decision in a lawsuit. The dispute invariably concerns what the physician remembers of the parents' description of the symptoms versus the parents' memory of their description of the symptoms. In the second case, the physician has not entered into a physician-patient relationship and thus owes no duty to the patient. This physician has also given the parents the best possible medical advice; go to an emergency room if you are worried. In this example, going to the emergency room would have saved the child's life. To reiterate, the law does not require a physician to help a patient (except as discussed herein) but the law will hold the physician liable for negligent help if help is rendered.
Most of the litigation resulting from an initial patient contact concerns the establishment of exactly what constitutes a physician-patient relationship. The most tenuous contact that has been held to create the relationship is a phone call, but these cases are rare and usually involve a physician who already has some relationship with the patient. The more common situation involves a patient who personally seeks care from the physician, either at an office or in an emergency room. The two guidelines that the courts follow (assuming that there is no duty to treat for other reasons) are whether the physician examined the patient and whether the physician made a medical decision. If it is found that the patient was examined or a medical decision was made, the court will usually hold that the physician-patient relationship existed. The examination need not involve an actual physical examination; it may involve merely asking the patient questions. A medical decision includes both the rendering of treatment (for example, medications) or a decision that the patient does not need treatment. In most cases it is the decision not to act that leads to litigation. It is important to separate a medical decision that the patient does not need treatment from the nonmedical decision not to accept the patient. If the physician tells the patient, "I don't treat anyone without insurance," the patient will seek treatment elsewhere, because there has been no medical decision that treatment is unnecessary. However, if the physician tells the patient, "There's nothing wrong with you, " the patient will not seek care elsewhere, because there has been a medical decision that care is not necessary.
A physician does not have a duty to render specialty care outside of that physician's own specialty, but there is a duty to make the patient aware of the need for specialty care. For example, a general practitioner cannot safely treat an ectopic pregnancy. However, the general practitioner does have a duty to warn the patient that this condition can lead to sudden bleeding and death and to impress the seriousness of the situation upon the patient. The law is unclear concerning the physician's duty to follow up on the recommendation, to ensure that the patient receives proper treatment. There is a tendency to assume that if the patient did not seek further treatment, the physician did not properly inform the patient of the consequences.
The best quality control strategy is to do everything reasonably possible to ensure that the patient sees the proper specialist. This entails making an appointment for the patient and checking to see if the patient kept the appointment. If the patient does not keep the appointment, another appointment should be scheduled and the patient should be sent written notice as well as called on the telephone. The physician does not have a legal "duty" to make a second appointment and follow up to see that it is kept, but this will illustrate the physician's concern and show that an effort was made to ensure that the patient received proper treatment.
If the physician examines the patient and find a condition that requires treatment within the physician's expertise, the physician will have a duty to treat the patient. The physician may not examine the patient and then refuse to care for the patient.
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