Ann W. Latner, JD | January 10, 2024 – Legal Advisor
This case brings up the question: how and when can a provider have a doctor-patient relationship with someone they’ve never met?
Ms N, a nurse practitioner (NP) in the emergency department (ED), was on duty one afternoon when distraught parents brought in their 3-year-old son. They reported that he had inserted a watch battery into his nose, and they were unsure of its whereabouts.
Ms N ordered radiographic imaging, which revealed that the battery was not in the child’s stomach or colon. However, she was unable to visualize the battery in the child’s nose. The on-call otolaryngologist, Dr E, who was not in the hospital, was contacted by phone. During their conversation, Ms N briefed Dr E on the child’s presentation, radiograph results, and the inability of the ED physician or herself to locate the battery in the boy’s nose.
Dr E, at that time en route to another hospital for a different patient, informed Ms N that he could not see the child until the following morning. He instructed her to have the parents call his office at 8 AM and emphasized that they should “let the office know that I want to see him that day.” He added an NPO order, instructing that the child to have nothing by mouth after midnight.
At the end of the call, Ms N explained the situation to the parents and advised them to call Dr E’s office at 8 AM. The parents, however, wanted their child seen that evening and asked whether he could be transported by ambulance to a children’s hospital. Ms N relayed the request to the ED physician, who advised that a transfer wasn’t necessary and that the parents could take him directly there if they desired.
The child was discharged from the hospital with written instructions: “Do not give child anything to eat or drink after midnight. Call the physician’s office at 8 AM and let them know that he wanted your child to be seen in the morning. Return here if any significant respiratory distress occurs before then.”
The parents took the child home. Later that night, white discharge began running from the child’s nose and his parents took him to the children’s hospital. There, a specialist removed the lithium battery lodged in the child’s nose. The delay in treatment caused injury to the boy’s nasal tissue that resulted in the perforation of his septum, requiring surgery.
The parents sued both Ms N and Dr E, alleging that the delayed treatment caused harm to the child’s septum necessitating surgery. The physician’s defense attorney promptly filed a motion for summary judgment, asking that the case against him be dismissed, alleging that he had never seen the child and had no physician-patient relationship with him. The court held a hearing on the issue, and ultimately granted the doctor’s motion, determining that there was no physician-patient relationship, and dropping him from the case. The NP appealed this ruling and the case went to the higher court.
The Appeal
To establish a medical malpractice case, a plaintiff must show: 1), that the physician owed a duty of care to the plaintiff; 2), that the physician breached the duty; and 3), that the breach proximately caused the plaintiff’s injuries. Without the duty-of-care component, the case will fail.
Normally, in a patient-physician relationship, there is automatically a duty of care that arises. But in cases where the health care provider does not see, treat, or in any way participate in the care or diagnosis of the patient, then the court looks to see whether the physician has “performed some affirmative act regarding the patient.”
In this case, Ms N argued that evidence indicated Dr E acted affirmatively toward the child and participated in his care, creating the requisite relationship. The court agreed, finding that the evidence indicated that Dr E entered the NPO order and gave specific instructions about when he wanted to see the child in the morning.
“This evidence indicates that physician affirmatively acted toward the child to personally participate in his care, thereby creating a physician-patient relationship and giving rise to a duty to the child,” wrote the court in the decision. It reversed the lower court’s decision letting the doctor off the case and remanded the case back to the lower court for further proceedings.
Protecting Yourself
An unusual aspect of this case was that Ms N, the NP, appealed the decision dismissing the case against Dr E. Her rationale was clear – once the physician was dismissed, she would be the sole defendant, despite relying justifiably on his advice.
In criminal cases, co-defendants are rarely represented by the same attorney to avoid conflicts. While less common in civil cases, co-defendants may seek to place the blame on each other. Although it may not have been comfortable, appealing the dismissal against Dr E was the right thing for Ms N to do legally for her own protection. Be wary of sharing an attorney with co-defendants unless you are positive that your defenses are aligned.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York
