Physicians whose specialty requires a hospital- based practice are often practicing as consultants without realizing it. The contracts under which they practice in the hospital make them formal consultants for most of the patients admitted. The consultations are done as a matter of routine, often without the patient and physician ever seeing one another. Nevertheless, the consultations and the accompanying charges for service establish a physician–patient relationship, with all its attendant duties. When they exercise independent medical judgment, they enter into a physician–patient relationship with their invisible clientele. [Bovara v. St. Francis Hosp., 700 N.E.2d 143 (Ill. App. 1 Dist. 1998)] Because these specialists usually perform their work at the request of a primary treating physician, they often see their duty as flowing to the physician rather than to the patient—a concept that creates risks for the patient and both physicians.

Most of the work of radiologists and pathologists does not involve directly dealing with the patient. Nonetheless, they have a relationship with the patient to the extent that they interpret tests or otherwise exercise medical judgment on the patient’s behalf. In these cases, the courts consider the physician who ordered the test as the patient’s agent who creates a physician–patient relationship with the consultant on the patient’s behalf. ³ If the test is negligently interpreted, the consultant will be liable for whatever damages the patient suffers.

Generally the courts find that passing the information about abnormal test results on to the ordering physician satisfies the consultant’s duty to the patient. [Townsend v. Turk, 218 Cal. App. 3d 278, 266 Cal. Rptr. 821 (Cal. App. 4 Dist. 1990).] The problems arise in how this is done in situations where the consultant finds a condition that requires urgent treatment, but has reason to know that the ordering physician is unaware of the urgency. This will usually involve either ancillary findings, or unanticipated findings. Although there has been little litigation on the point, at least one court has found that there can be a duty to directly contact the ordering physician or the patient. [ Phillips v. Good Samaritan Hosp., 416 N.E.2d 646 (Ohio App. 2 Dist. 1979).] In another case, the report the radiologist sent never reached the ordering physician. The court found the radiologist could be liable for any injuries occasioned by delay or improper treatment due to the miscommunication. [ Merriman v. Toothaker, 515 P.2d 509 (Wash. App. Div. 2 1973).]

This is an area where managed care and its weakening of the relationship between the patient and the treating physician can be expected to increase liability. The legal opinions on duty to inform patients of test results make it clear that the remedy lies against the treating physician if that physician has been properly informed by the consultant, but against the consultant if there has not been a proper warning. To the extent that the consultant cannot reasonably expect that reports will be promptly acted on by the receiving physician, or that the reports may not reach the treating physician at all, the courts will probably be willing to find that there is a duty to inform the patient directly. A report addressed to a clinic, or to the physician of the day, may not be seen by a jury as properly discharging the duty to inform the patient.