How can I be sued?

June 1, 2007

We know about the ugly picture over-exposure to the sun can paint. But as a society, we need to make some basic changes to the way we think to put the sun in its proper, safest place.

Dr. Cosmetics is a dermatologist in a large U.S. city, and although he sees many general dermatology patients, the emphasis of his practice is on cosmetic dermatology.

Dr. Cosmetics finished his dermatology residency more than 20 years ago. Although he is board-certified in dermatology, he is not required to take the dermatology recertification examination. By his own admission, he is not at all up to date on the many subtleties of medical dermatology.

Dr. Cosmetics has staff privileges at his local community hospital in order to use the hospital-based lasers. He understands that inherent in having such privileges is the requirement of his being on call for dermatologic emergencies one month of each year.

During one of these on call periods, Dr. Cosmetics was called to see a patient in the emergency room.

He was told by the emergency room physician that the patient had a history of pemphigus vulgaris, was on immunosuppressive agents and presented with a high fever and weeping erosions over 70 percent of her body. Dr. Cosmetics told the physician that he was uncomfortable evaluating such a patient and suggested that the patient be placed in an ambulance and taken to the closest university hospital some 50 miles away. On the way to that hospital, the patient had a seizure and was intubated. She died three days later from what was later determined to be sepsis.

The surviving family brought a lawsuit against Dr. Cosmetics alleging that but for his negligence in refusing to see the patient, she might not have died. Dr. Cosmetics contends he cannot be sued because no physician-patient relationship was established between him and the severely ill patient. Is he correct?

A legal precedent

A recent Kansas case (Seeber v. Ebeling) raised the very same question.

In that case, the defendant neurosurgeon asked whether his refusal to come to the emergency room established enough of a physician-patient relationship to lead to a malpractice case. In the Kansas case, the plaintiff was injured in an automobile accident and suffered a spinal cord injury and fractures to his neck. The injured patient was airlifted to a local hospital and upon arrival was unable to move his hands and legs. The local emergency room physician evaluated him and determined that he needed neurosurgical care. Over two hours later the neurosurgeon on call (Dr. Ebeling) was paged.

Dr. Ebeling was told of the patient's history and all relevant performed studies. Dr. Ebeling was also told that the patient had a spinal cord injury and a cervical spine fracture. The defendant neurosurgeon explained to the emergency room doctor that he was exhausted and would not come to the emergency room. He suggested that the patient be transferred to the university medical center.

Ultimately, the completely paraplegic plaintiff filed suit against Dr. Ebeling, contending that the medical care provided by Dr. Ebeling was negligent. Dr. Ebeling contended that he did not owe the plaintiff a duty of care because he had refused to see him as a patient. The Kansas court, like most state courts, premised its analysis on the fact that the duty of care in a medical malpractice action against a physician was based on the existence of a physician-patient relationship. The Kansas court ruled that if the doctor never provided any care, treatment or advice concerning the patient's condition, the requirement of establishing a physician-patient relationship had not been met. Since there was no evidence that the defendant neurosurgeon had provided any advice concerning treatment on the phone, no physician-patient relationship had been established.

Although some jurisdictions have considered the on call agreement between a physician and his/her hospital enough to establish a physician-patient relationship between the patient in the emergency room and the on call doctor, most courts rule in a similar manner to the Kansas court.

Dr. Cosmetics will likely be dropped as a defendant in the medical malpractice case brought against him.

Dr.Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.