Medicine and the Law – Part 1: Contract and Consent

I’ve decided to go ahead and post a series on Medicine and the Law. One of the things I hear about so often from both sides of the patient-physician relationship is the fear and threat of legal action. Typically physicians are paranoid of being sued. They practice defensive medicine and go out of their way to write copious notes, dictate exhaustive patient summaries and operative reports. For the practicing physician, all the documentation, paperwork, and reporting is simply exhausting. Sometimes all of the documentation takes up way more time and energy than the actual exam or procedure. It is a sad state of affairs when 90% of the time allocated to a patient is dedicated to documentation rather than with actual time with the patient.

Despite physician’s fear of litigation as well as the threat of litigation from patients, the language used by both parties often reveals that most doctors and most patients really have no idea what type of actions could hold up in court and what types of actions could actually be a valid claim.

I previously mentioned “Sentinel Events“. Those are mostly no-brainer types of events such as operating on the wrong extremity or treating the wrong patient. Aside from those sentinel events, there are generally two key elements required for a physician-patient relationship to be initiated:

1. Contract — There must be a written or non-written contract between the physician and patient. This may be initiated when a patient seeks care and the physician agrees to take care of the patient.

2. Consent — The physician and patient must agree to the physician-patient relationship and each has the right to refuse to enter into it.

If those two elements are not met, then the physician has little to fear and the patient likely does not have a valid claim.

If those elements are met, then a physician-patient relationship is established. What this means is that the physician has Duty and Responsibility to the patient. In other fields of law, this is referred to as Fiduciary Responsibility. Essentially, this means that one person acts in a position of trust or confidence for the benefit of another.

It is usually obvious when a physician-patient relationship exists or is established. Typically, patients see physicians in their offices to establish that relationship. But there are circumstances that question whether both a contract or consent have been fulfilled. One example is when a physician contracts to provide services to a hospital to provide services to patients in the Emergency Room. If the physician declines to treat or admit a patient, he/she probably does not realize that a physician-patient relationship may already be established by the fact that he contracted with the hospital and that the patient came to that hospital’s Emergency Room.

Another example may be when a physician “unofficially” consults another physician for his treatment recommendation for a patient that the consulting physician has never seen or treated before. By providing advice, it may be viewed as that physician entering into the physician-patient relationship.

As you can imagine, all of these laws vary interpretation and enforcement from state to state. In future posts I will bring up some case examples.