Liability
(These are actual questions asked by physicians at risk management seminars. The answers are general guidelines only and are not intended to be a comprehensive treatment of very complex subjects.)

"I am a physician who has contracted with several PPOs and HMOs to provide health care to their patients. At what point does such a managed care patient become my patient?"

Answer:
It depends on where you live and what your MC contract says. Traditionally, in most jurisdictions the doctor-patient relationship is not formed until the doctor has actually seen the patient. However, managed care has, in some cases, changed that. A recent Texas appellate court ruled that the doctor-patient relationship was formed by virtue of the managed care contract, and that an HMO patient has, in effect, pre-paid for health care services by virtue of paying premium to the managed care organization. Read your contract and know what applies in your state.


"A colleague was sued recently by a patient who asserts she told him about a lump in her breast, and claims he told her it was nothing to worry about. It turned out to be cancer. My friend swears the patient never said a word about it, and since the patient came to the office that day for treatment of flu symptoms, it never occurred to him to do a breast exam. Any suggestions for avoiding this scenario in the future?"

Answer:
Have the patient write down, in his or her own words and handwriting, why they have come to see you on any given visit. Try buying a box of self-adhesive stickers at the office supply store (about 3" x 4" is a good size). Have them printed with the phrase: "Here's why I am coming in today to see Dr. Smith," and have the patient write down his chief complaint or reason for the appointment. Then, put the sticker on the chart along with the progress notes for that day's visit. No system is foolproof, but this may well have avoided the swearing match your colleague experienced.


"A malpractice consultant in my office said I needed to monitor patients after they've been given injections. Get real! We tell them to let us know if there's a problem, but in today's environment no one can watch a single patient for more than a few minutes."

Answer:
You have a point, but consider the alternatives. A recent Pennsylvania case shows what happened when a physician gave a cortisone shot to a 17-year-old girl who presented with poison ivy. The injection was given with the patient leaning against an exam table; afterward, the doctor turned his back, and the patient fainted and claimed a fractured jaw. At trial, the plaintiff argued that the doctor should have monitored the patient more closely. The defense asserted the physician did everything appropriately. Who won? The jury found the defendant physician was not negligent, so the defense "won." But after heartache and hard defense costs are added, it's not so clear. The lesson: keep questionable issues from coming up in the first place.


"I had a post-surgical patient sign himself out of the hospital against medical advice. Should I call the patient to be seen in my office for a post-operative visit? Or am I still responsible for his care?"

Your question was referred to James E. Schutte, Ph.D., author of the book, Preventing Medical Malpractice Suits: A Handbook for Doctors and Those Who Work With Them. His reply:

Recent court decisions have clearly established that a physician has an ongoing duty of care, even when the patient is noncompliant. In particular, the physician has a duty to warn such a patient of the possible consequences of his or her failure to cooperate with treatment. By all means, call the patient and arrange for an office visit. And if the patient refuses or fails to show, be sure to document in the medical record both the patient's noncompliance and your efforts to overcome it, including copies of all correspondence.


"I am a physician who occasionally consults over the phone with other physicians about patients in other states. Sometimes this is verbal consultation only; other times, I read and interpret x-rays and form opinions about recommended courses of treatment. Now I hear that I'm "practicing medicine" in those distant states. Would you please comment?"

Answer:
Over 30 states (among them Kansas, Texas, California, Ohio and Florida) have active "telemedicine programs," and many have already addressed the issue of practicing across state lines, defined as any medical act that occurs when the patient is physically located within the state and the physician is located outside the state. Any contact that results in a written or documented medical opinion and that affects the diagnosis or treatment of a patient constitutes the practice of medicine. Kansas and Texas, among others, require physicians to have active state licenses in order to practice telemedicine. Know and obey the laws in your state and the states where your distant "patients" are located; otherwise, you run the risk of practicing without a license--even if you're fully licensed in the state where your physical practice is located.


"A patient of mine requested a copy of his records to take to another doctor. He saw that doctor, and also saw a third doctor. Now he's coming back to see me again. Do I have to see him? In other words, is he still my patient?"

Answer:
As we have said before, a simple request for records does not terminate the relationship. Nor does the act of seeing another physician. In nearly all cases, a patient is still your patient unless the relationship has been formally ended by either the patient or the physician, who should follow specific steps. Certain exceptions may apply; know what the laws and practices are in your state. If in doubt, err on the side of conservatism and consider the relationship to be ongoing.

Latest Question / Informed Consent / Liability / Recordkeeping / Confidentiality / Managed Care
Got a question? Submit it to MedRisk®.
Let us know if we can use your question with your name; otherwise, confidentiality rules.