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Medical Malpractice

Telephone advice to a third party triggers the physician-patient relationship - Albert & Forestean Adams v. Via Christi Regional Medical Center, 19 P.3d 132 (Kan. 2001)

This is a personal injury and wrongful death action filed by the parents of Nichelle Adams, who died as a result of a ruptured ectopic pregnancy. The parents sued St. Francis Regional Medical Center, now known as Via Christi Regional Medical Center, and Dr. Linus Ohaebosim. The parents settled all their claims against the hospital for $170,000. The parents' action against Dr. Ohaebosim proceeded to trial, and the jury returned a verdict in favor of the parents. The jury's non-pecuniary wrongful death damage award was for $1,800,000. Because the parents already had received the statutory limit on wrongful death damages as settlement proceeds from the hospital, the trial court entered no judgment against Dr. Ohaebosim for wrongful death damages. The parents appeal from the trial court's entry of judgment. Dr. Ohaebosim cross-appeals that there was no physician-patient relationship between him and the deceased and thus he cannot be held liable for her injuries.  The court's opinion contains a useful analysis of the interplay between the Kansas wrongful death and comparative fault laws, but the key medical legal issue is whether telephone advice to a third party can trigger a physician-patient relationship.

In July 1992, Nichelle Adams was 22 years old and was living with her parents and her younger sister. She was 8 weeks pregnant.  On July 22, Mrs. Adams got home from work at approximately 8:40 p.m. to find that Nichelle had been complaining about her stomach and had gone to bed. Mrs. Adams was concerned because Nichelle generally was a very active person.  Dr. Ohaebosim had been the family physician for Mr. and Mrs. Adams and their three children for several years. He had a patient file on Nichelle, but he had not seen her in his office since 1988.  Mrs. Adams had gotten medical advice from Dr. Ohaebosim over the telephone on a number of occasions.  At approximately 9 p.m. on July 22, Mrs. Adams called Dr. Ohaebosim. She got his answering service, and then the doctor called Mrs. Adams right back. She told Dr. Ohaebosim that Nichelle was 5 to 8 weeks pregnant and was experiencing abdominal pain. Mrs. Adams later told a doctor at the hospital that she mentioned shortness of breath to Dr. Ohaebosim in the telephone conversation, but Dr. Ohaebosim later denied it, and at the time of trial Mrs. Adams could not remember telling him anything other than Nichelle was pregnant and had abdominal pain.  When Mrs. Adams told Dr. Ohaebosim of Nichelle's condition, he did not suspect that Nichelle might have an ectopic pregnancy.  According to Dr. Ohaebosim, Mrs. Adams did not express urgency or serious concern when she called him on July 22.  Dr. Ohaebosim testified that he told Mrs. Adams that abdominal pain is not abnormal during pregnancy but to take Nichelle to the emergency room if she got any worse. He also told her to have Nichelle see a doctor the next day. Mrs. Adams testified that Dr. Ohaebosim did not mention taking Nichelle to the emergency room, but that he did say to bring her into his office the next day. Dr. Ohaebosim and Mrs. Adams agreed that he did not ask her any questions about Nichelle's condition. At approximately midnight, Mrs. Adams drove Nichelle to the hospital, where she was admitted into the emergency room.  She rapidly went into cardiac arrest and was rushed to surgery, but died later after a period on life support.  There was evidence that Nichelle might have lived if she had received medical care at 9 or 9:30 p.m. on July 22, instead of after midnight.

Defendant argued that there was no physician-patient relationship, based on these facts:

"(1) A physician-patient relationship did exist on that date between him and Mrs. Adams.
(2) He had not seen, talked to, or treated Nichelle for approximately four years prior to July 22.
(3) He did not speak to Nichelle on July 22.
(4) His only knowledge of Nichelle's obstetric history was the information provided by Mrs. Adams during the telephone conversation.
(5) He no longer provided obstetrical care.
(6) He "took no action other than discussing, in very general terms," Nichelle's condition with Mrs. Adams.
(7) He did not consider Nichelle to be his patient, and Nichelle did not consider him to be her doctor."

The trial judge gave the jury these instructions:

"The physician-patient relationship is a consensual one in which the patient knowingly seeks the physician's assistance and the physician knowingly accepts the patient as a patient. The relationship is contractual and wholly voluntary, and is created by agreement expressed or implied.
A physician-patient relationship may be created in any number of ways, including the act of a physician agreeing to give or giving advice to a patient in person or by telephone."

Based on these instructions, the jury found that a physician-patient relationship existed and awarded the plaintiff substantial damages against the defendant.  After an excellent review of the relevant cases on physician-patient relationship from many states, the court concluded that the key issue in determining whether there is a physician-patient relationship is whether the physician gave the patient, or someone on the patient's behalf, medical advice.  (While not at issue in this case, it is assumed that the plaintiff would have to show reliance on the advice - had the mother taken her daughter to the ED immediately, it would not have mattered what she had been told by defendant.)  In this case, the critical advice was that it was OK to wait some period before going to the ED.  The jury was within its charge to find that had defendant wanted to avoid forming a physician-patient relationship or liability for his advice, he should have told the mother to take her to the ED at once.  This case is very important because there are few cases that directly deal with the formation of the physician-patient relationship through a telephone conversation.

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