Avoiding Tort Liability When There are Too Many Cooks in the Kitchen

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When patients experience complex health events, it often requires the collaborative efforts of practitioners to address the issue. Further complicating matters, the patient may not always be seen by the appropriate specialist first, second or even at all given the efficiencies created by technology. At what point and how specialists such as neurosurgeons become involved in a patient’s case will necessarily impact the care that is ultimately rendered. Since medicine is an imperfect science, judgment calls are routinely made based on the facts available at the time, and sometimes the outcome is less than optimal. But, who is responsible for those judgment calls is an ethical and legal blur, particularly where multiple providers are involved in the patient’s care.

From a legal perspective, there are several ways in which this question can be asked and answered, but most commonly, it manifests in the form of a tort claim alleging negligence by the treating physicians. Negligence by definition implicates recklessness or a failure to exercise case, rather than an intention to inflict harm. As a result, what constitutes negligence within the medical practice can be difficult to ascertain and nebulous for many to comprehend. 

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Because negligence is a tort claim governed by state law, the requisite elements to prove negligence vary from state to state, but generally, it requires the plaintiff to show (a) a duty of care was owed to him/her, (b) that duty was breached, (c) the breach directly caused the injury to the plaintiff, (d) the injury was reasonably foreseeable (e.g. was “proximately” caused by the breach) and (e) the plaintiff suffered the alleged damages (1). When applied to medical practice, the plaintiff typically needs to show:

(a) The Duty: What a reasonably competent and skilled physician, with a similar background in the same medical community (2), would do under the same circumstances;

(b) The Breach of Duty: The physician did not do what a reasonably competent and skilled physician, with a similar background in the same medical community, would do under the same circumstances;

(c) Direct Cause: But for the physician’s failure, the plaintiff would not have incurred the injuries;

(d) Proximate Cause: The plaintiff’s injuries were a reasonably foreseeable consequence of the physician’s breach of his duty of care; and

(e) Damages: The plaintiff’s injuries resulted in economic and noneconomic damages.  

As a fundamental matter, a plaintiff must show that a physician-patient relationship existed to establish a duty of care was even owed to the patient. Where several providers may opine on a case, this may prove more difficult than one might anticipate. The Supreme Court of Oregon examined this question with respect to an on-call neurosurgeon who consulted with the resident on duty in the emergency room. In Mead v. Legacy Health System (3), the resident called the neurosurgeon for his advice on whether the patient needed to be seen by the neurosurgeon but did not specifically ask the on-call neurosurgeon to see the patient. The resident summarized the results of the patient’s magnetic resonance imaging (MRI) scan, and the neurosurgeon recommended she be admitted for pain management (implicitly then, concluding that the patient did not need to be seen by the neurosurgeon). The patient was admitted under her primary care physician’s name, but after her condition worsened, the primary care physician’s nurse contacted the neurosurgeon again to ask if he would see the patient. The neurosurgeon waited until he spoke with the primary care physician the next day before seeing the patient and performing surgery on her herniated disk that had escaped and was pressing on the sheath of her cauda equine.

In finding for the physician, the court traced the evolution of legal theory regarding when the physician-patient relationship begins, noting that historically “the physician-patient relationship typically does not exist between the patient and physicians consulted by the patient’s personal physician (4).” However, “in light of the increasing complexity of the health care system … it is simply unrealistic to apply a narrow definition of the physician-patient relationship in determining whether such relationship exists for purposes of a medical malpractice case (5).” In illustrating this point, the court gave the example of how hospitals and medical groups divide responsibility among teams of physicians with some only performing discrete medical services, such as radiologists interpreting x-rays (6). A previous case in Oregon had articulated that the standard should be whether the physician affirmatively undertakes to diagnose or treat a patient, but the Oregon Supreme Court in Mead disagreed, instead concluding that the standard should be “whether a physician who has not personally seen a patient either knows or reasonably should not that he or she is diagnosing a patient’s condition or treating the patient (7).” Furthermore, citing to cases in several other states, the court confirmed that providing advice to a colleague about that colleague’s patient, including about possible causes or the proper course of treatment, does not give rise to a physician-patient relationship (8). Applying this standard, the court felt there was sufficient evidence to support the jury’s finding that no physician-patient relationship existed between the neurosurgeon and the patient based upon the testimony presented at trial.   

Assuming the plaintiff can establish a physician-patient relationship though, a second common barrier can be demonstrating how the physician’s acts (or omissions) caused the injury at issue in the trial. Where multiple parties are involved in caring for a patient, it becomes even more difficult to show causation, whether in fact or proximately, especially where the argument rests upon the timing of the care provided. 

An appellate court in Illinois examined a situation in 2008 where a woman complaining of headaches was seen by several practitioners but ultimately passed away following a brain herniation causing irreversible brain damage – the timing of her computed tomography (CT) scan and neurological consult were at the center of the dispute of whether the plaintiffs presented sufficient evidence to establish their negligence claim and for the case to proceed to trial. In Wiedenbeck vs. Searle (9), a 38-year-old woman with a history of migraines visited an urgent care center complaining of a headache. Over the course of three days, the patient was seen by the family practice physician on duty at the urgent care center, presented to the local emergency room where a CT scan was ordered by an emergency room physician and interpreted by a neurodadiologist and transferred to the local university hospital upon the advice of the on-call neurosurgeon consulted via telephone. Early in the morning of the second day following her initial visit to the urgent care center, the patient ultimately suffered a brain herniation and died in a rehabilitation center a few years later. Finding in favor of the defendant-family practice physician, the Appellate Court affirmed the decision of the trial court that the plaintiffs’ expert testimony did not establish that an earlier CT scan or not transferring the patient to the university hospital would have led to earlier surgical intervention. Citing to several precedent cases, the Appellate Court made clear that that expert testimony must establish a causal connection between treatment [or, in this case, the delay of treatment] and the claimed injury which “must not be contingent, speculative or merely possible (10).”

When the central issue is when care should have been rendered, it has proven difficult for plaintiffs to establish that earlier diagnosis, treatment, etc. would have necessarily resulted in a different outcome without relying upon speculation. In another case relied heavily upon by the Wiedenbeck court (11), plaintiffs had been unable to show that an earlier CT scan by the emergency room physician would have definitely resulted in earlier surgical intervention because the emergency room physician necessarily would have consulted the neurosurgeon who would then make the decision to proceed with surgery or not. Such a decision would have depended upon a number of factors (including the results of an earlier scan which was not taken), thus it was impossible to say with any certainty whether the neurosurgeon would have recommended surgery if an earlier scan were ordered. In another case, even where plaintiffs’ experts could establish that an earlier test would have significantly increased the patient’s chances of survival from 0 to 60 percent, it was insufficient to establish the necessary causation, and a jury’s verdict was overturned (12).

As with most legal standards, the outcome of a particular case and the possibility of liability for the physician will be dependent upon the facts. Further, as noted above, the standards for substantiating a negligence claim will also vary from state to state. The foregoing is not intended to be legal advice but rather summaries of how courts in various states have handled these complex issues. Physicians are encouraged to seek the advice of local counsel for guidance regarding the applicable standards and best practices in the jurisdictions where they practice.
[aans_authors] References
1. Damages are typically “economic”(e.g.  medical care costs, lost wages) or “non-economic” (e.g. pain and suffering, lost pleasures of life). 

2. “Community” can be defined by either locality (i.e. geographic region such as singular state or group of states) or on a national basis.

3. 283 P.3d 904 (2012).

4. Mead, at 909 citing to Louisell & Williams, 1 Medical Malpractice § 8.03[2][a] at 8-19 – 8-22 (footnotes omitted).

5. Mead, at 910, citing to Kelley v. Middle Tennessee Emergency Physicians, 133 SW3d 587, 596 (Tenn 2004).

6. Mead, at 910.

7. Mead, at 910.

8. Mead, at 911, see also Irvin v. Smith, 272 Kan. 112, 31 P3d 934, 941 (Kan 2001); Reynolds v. Decatur Mem’l Hosp., 277 Ill. App. 3d 80, 660 NE2d 235, 238-39, 214 Ill. Dec. 44 (Ill App Ct 1996); Oliver v. Brock, 342 So 2d 1, 4 (Ala 1976).

9. 895 N.E. 2nd 1067 (2008), unofficially published at https://scholar.google.com/scholar_case?case=11007440557272245405&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

10. Wiedenbeck, at 1070 citing to Aguilera v. Mount Sinai Hospital Medical Center, 691 N.E.2d 1, 7 (1998), unofficially published at https://scholar.google.com/scholar_case?case=1499531283372109883&hl=en&as_sdt=400006&as_vis=1.

11. See Aguilera v. Mount Sinai Hospital Medical Center, 691 N.E.2d 1 (1998).

12. See Townsend v. University of Chicago Hospitals, 741 N.E.2d 1055 (2001), unofficially published at https://caselaw.findlaw.com/il-court-of-appeals/1124488.html

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