Creation of the Patient/Physician Relationship

Understanding the creation of the physician/patient relationship is essential in that the relationship is the basis upon which liability may be predicated. This relationship is not unlike an understanding of the formation of a legal contract.

An express contract can be an easily understandable concept. There is an actual agreement of the parties, a "meeting of the minds," if you will. The terms are openly declared. In its most elemental form, a contract is nothing more than an agreement, upon sufficient consideration, to do or not to do a particular thing.

An implied contract is an entirely different legal beast. In the context of the physician/patient relationship, the implied contract is a legally ominous creature which must be understood to be avoided.

An implied contract requires no actual agreement. It is not a creation of the doctor or the patient. Rather, it is inferred by the law as a matter of reason and justice by the conduct of the doctor.

It has been said that this kind of obligation rests on the principle that "whatsoever it is certain a man ought to do that the law will suppose him to have promised to do." Although the liability of a party to an express contract arises directly from the contract, the reverse is the case with a contract implied in law. There, the contract is implied as arising from the liability.

The creation of the physician/patient relationship is an important concept to understand for another reason. By his own actions, a physician can preclude the courts from implying a contract when none was intended. But certain legal procedures must be followed.

Under the common law, a physician had no duty to render medical care unless he had agreed to do so. However, once a physician accepts a patient he creates a legal relationship that is no different than if he had signed a contract with that patient. Unless the law authorizes him to break that contract by withdrawing from the physician/patient relationship, he is obligated to appropriately treat the patient.

Express agreements are relatively straightforward, but implied agreements can arise if a patient relies on something that is done or said by a doctor or member of his staff and the law determines that the doctor should have foreseen that the patient would so rely.

One particularly troublesome area of the law with regard to implied agreements arises with former patients. If the illness is chronic and requires ongoing treatment, the physician has an implied obligation to continue the treatment. One exception to this may exist when the patient has sought the services of another physician for the same illness. Here, some courts have concluded that the patient withdrew from the physician/patient relationship. Some courts, though, look to the frequency of the treatments to determine the existence of the relationship. In other words, if the patient has not been in to see the physician for a considerable period of time, it has been held that the patient simply suffered a reoccurrence of the old illness and therefore had the option of establishing a new physician/patient relationship. The rules are changed somewhat in an emergency situation. It is generally always more prudent to treat the patient and withdraw from the relationship once the patient is stabilized.

Unless that patient is suffering from a chronic illness, a physician has not impliedly agreed to treat the patient for every illness that might befall him. Each new illness requires a new contract. One caveat is in order. A family doctor or any physician who has established an on-going relationship with the patient should arrange competent medical coverage in his absence to avoid potential liability.

Following are several situations which are likely to raise the most questions regarding whether a physician/patient relationship has been created.

A. Appointments

The general rule is that an appointment to see a physician, in and of itself is not sufficient to establish the contract which underlies the physician/patient relationship. Although the law in this area is not universally settled, the doctor is generally held to possess the option to reject the physician/patient relationship at this first meeting.

An exception to this rule can exist where a physician has granted a specific appointment for a specific procedure within his area of expertise, and then refused treatment to the detriment of the patient. In other words, if the patient is in need of immediate medical attention, it would behoove the physician to render the appropriate care, if it is within his capacity to do so. Even if it is not within his area of expertise, the physician should refer patient to someone who can adequately treat him. Of course, once treatment, has begun, regardless of whether it is within the physician's area of expertise, the law generally will find that the physician/patient relationship has been created.

B. Phone Conversations

The physician/patient relationship can arise over the telephone if either the doctor or any of his employees give comments which are in the nature of treatment, or if they indicate that they have accepted the individual as a patient. The simple refilling of a prescription will commence the relationship even if the doctor has never seen the patient or has previously terminated the relationship.

The physician can utilize the following checklist to avoid commencing a physician/patient relationship by telephone:

1. The person receiving the call should note the name of the individual to whom he is speaking.
    
2. The person receiving may listen to the complaints of the prospective patient.
    
3. If an appointment is made for the patient, it should be made clear that the appointment is being made to evaluate the patient so that the physician may determine if he can accept him as a patient. The appointment is not necessarily for treatment.
    
4. If no appointment is made, the physician should inform the prospective patient of his decision not to diagnose or treat and further inform him of his options (e.g., he may present himself to the local hospital emergency room, phone another physician in the appropriate specialty, or phone the local medical society).