By Melanie Rubinsky, J.D., LL.M. Candidate
In a case of first impression, the Supreme Court of Ohio has expanded the scope of the physician-patient relationship. The Court has recently held that a physician-patient relationship can be established between a physician who contracts, agrees, undertakes, or otherwise assumes the obligation to provide resident supervision at a teaching hospital and a hospital patient with whom the physician had no direct or indirect contact. See Lownsbury v. VanBuren, 762 N.E.2d 354 (Ohio 2002).
On January 6, 1995, Cathy Lownsbury went to Akron City Hospitalís maternal-fetal medicine center for a prenatal visit. Ms. Lownsbury was seen on that visit by a third year resident. The resident ordered an ultrasound and stress test. The tests were completed and evaluated by a perinatologist, Dr. George VanBuren. Based on the results of those tests, Ms. Lownsbury was sent to labor and delivery for induction of labor. A resident performed a physical examination and performed a Contraction Stress Test. The resident consulted with a more senior resident to interpret the results of the stress test and, based on the results as interpreted by the more senior resident, Ms. Lownsbury was sent home. She was instructed to follow-up and have another stress test within one week. The results of the Contraction Stress Test were reviewed the next morning by the perinatologist and he agreed with the interpretation of the senior resident. Despite the review of the results by the perinatologist and the residents, the results revealed repetitive late decelerations, suggesting fetal distress; however, only an 18-minute portion of the fetal monitor tracing was reviewed, which showed no decelerations.
Dr. Thomas Stover, the supervisory physician of Akron City Hospitalís labor and delivery department, was never notified and was not aware that Ms. Lownsbury was at the hospital. He was never consulted regarding the tests or interpretation of the test results. He never examined, treated, evaluated or consulted with anyone about Ms. Lownsbury. He had no contact with the patient at all.
A few days later, Ms. Lownsbury gave birth to a severely brain damaged daughter, Rebecca. Ms. Lownsburyís experts opined that had labor been induced earlier, the child would not have suffered permanent neurological injury.
The Lownsburys, on behalf of Rebecca, then filed suit against Dr. Stover, alleging that he was responsible for Rebeccaís injuries based on the fact that he was the supervisory physician of the labor and delivery department on the day Ms. Lownsbury had been sent for testing. The Plaintiffs alleged that Dr. Stover was liable because he failed to supervise the residents on duty and ensure that the requisite prenatal care was provided. Dr. Stover, alleging that a physician-patient relationship could not be found to exist between an on-call physician and a hospital patient unless it appeared that the physician was either in direct contact with the patient or actively involved in the patientís care, moved for summary judgment, which was granted. Plaintiffs appealed.
The Supreme Court of Ohio, in granting discretionary appeal, held that indeed, a physician-patient relationship could be established in this manner. The court felt that the basic underlying concept in cases involving physicians in supervisory roles at teaching hospitals is that a physician-patient relationship, and thus a duty of care, may arise from whatever circumstances evince the physicianís consent to act for the patientís medical benefit. The court went on to hold that physicians who practice in the institutional environment may be found to voluntarily assume a duty of supervisory care pursuant to their contractual and employment arrangements with the hospital. The institutional environment of a large teaching hospital provides a myriad of complex and attenuated relationships. In this environment, the patient enters a realm of full service coordinated care in which technical agreements and affiliations proliferate the specialized functions and designated obligations of various allied health professionals. In this environment, the supervisory role over residents that usually lies with the hospital is delegated or assumed by an individual physician or group of physicians. It is their level of skill and competence that ensures adequate patient care. The Court held that when a patient enters this environment, that patient has every right to expect that the hospital and its physicians will exercise reasonable care in fulfilling their respective obligations. Therefore, the Court believed that it was a logical and reasonable conclusion to find that a physician could agree in advance to the creation of a physician-patient relationship with the hospitalís patients.
The Court disagreed with its prior ruling that held that an on-call physician is deemed to have a physician-patient relationship when the physician "(1) participates in the diagnosis of the patientís condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff or patient for whose benefit he is on call." See McKinney v. Schlatter, 692 N.E.2d 1045, 1050 (Ohio 1997). Specifically, the Court rejected the McKinney test holding that, applying it to the present case, a physician who explicitly accepts or voluntarily assumes the obligation to provide resident supervision, knowing full well that the fulfillment of those supervisory duties is vital to the interests of the hospitalís patients, could escape his or her obligation simply by failing to provide any supervision at all. The Court found "such a rigid, formalistic notion of consent to be both unrealistic and unjustified." 762 N.E.2d 354, 362.
Ultimately, the Court held that the determination lies in establishing whether and to what extent Dr. Stover assumed the obligation to supervise the residents and whether Dr. Stover assumed only a limited and passive duty to gauge the performance of the residents or familiarize himself with the condition of the patients at the hospital. Based upon the consent form signed by Ms. Lownsbury and utilized at Akron City Hospital, the Court held that Akron City Hospital considered the supervisory physician to be the patientís "attending physician" and expected that patient services would be ordered by or rendered under the general and specific instructions of such physician. The Court therefore felt that the consent form constituted sufficient evidence that Dr. Stover was required to take an active role in supervising the hospitalís residents and caring for the hospitalís patients.
In contrast to the holding of the Supreme Court of Ohio, Texas courts have been reluctant to impose a duty on a physician without a contract for the benefit of the patient or some affirmative act on the part of a physician. The First Court of Appeals has been disinclined to depart from the rule requiring a contract or an affirmative act on the part of the physician before a legal duty arises. See Wax v. Johnson, 42 S.W.3d 168 (Tex. App.ĖHouston [1st Dist.] 2001, n.p.h.). The Court held that a physician owed no duty to a patient until he saw the patient while making rounds. Similarly, the San Antonio Court of Appeals, in a case analogous with the facts of the Lownsbury case, held that simply being on call at a hospital does not establish a physician-patient relationship for malpractice purposes. Further, the court was not inclined to hold the physician liable due to his role of supervision over residents if he never assumed attending physician responsibilities. See Reynosa v. Huff, 21 S.W.3d 510 (Tex. App.ĖSan Antonio 2000, n.p.h.). Finally, the Dallas Court of Appeals has recently held that a physician may agree in advance with a hospital to the creation of a physician-patient relationship that leaves him no discretion to decline treatment of hospital patients. However, when no contractual obligation exists, the mere fact that the physician is on-call does not, in itself, create a physician-patient relationship nor impose any duty on the physician to treat a patient. See Lection v. Dyll, 65 S.W.3d 696 (Tex. App.ĖDallas 2001, n.p.h.).
Texas law focuses on an affirmative act by the physician to determine when the actual acceptance has taken place to determine whether the relationship has been established. Holding a physician liable to an individual with whom he has had no contact, direct or indirect, opens the floodgates of litigation against physicians who appreciate the value of teaching and commit to the supervision of residents, who, in effect, are physicians. The result of holding those physicians liable for the medical negligence of other physicians within the teaching hospital could ultimately lead to a decline in physicians who embrace that role.