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Medical Malpractice Case Update – Spring 2009

By Adam P. Chaddock

Whether a physician-patient relationship exists such that a physician might owe a duty to a patient has been the subject of many appellate cases. Recently the issue was addressed again in Gillespie v. University of Chicago Hospitals.

In Gillespie, the patient presented to emergency department of Victory Hospital complaining of shortness of breath and chest pain. The patient had no primary care physician on the staff at Victory and Dr. Vashi, as the internist on call, was assigned as the patient’s attending/admitting physician. Dr. Vashi did not see the patient, nor did the emergency department physicians consult with Dr. Vashi. Subsequent to the patient’s discharge, test results indicating cardiac disease were placed in Dr. Vashi’s box at the hospital, and the next day he interpreted the EKG. Dr. Vashi was unable to rule out a heart attack and noted that the patient should be examined to corroborate her findings. Dr. Vashi’s report on the EKG was placed in the patient’s file and a copy was kept by Dr. Vashi. Dr. Vashi billed the patient’s insurer for her work. Neither Dr. Vashi nor the hospital contacted the patient again.

The patient died approximately two months later and her estate sued Dr. Vashi. At trial, the court granted a directed verdict to Dr. Vashi, finding that there was no physician-patient relationship and that Dr. Vashi thus did not owe the patient a duty of care.

The Appellate Court described factors weighing in favor of and against a finding that a physician-patient relationship existed. Factors weighing in favor included: (1) Dr. Vashi was the on-call internist at the time of the patient’s arrival; (2) Dr. Vashi was listed as the admitting/attending physician on the patient’s paperwork; (3) Dr. Vashi received and reviewed the patient’s test results; (4) Dr. Vashi authored a report based upon the patient’s EKG; and (5) Dr. Vashi billed for his services.

Factors weighing against included: (1) the emergency room physicians that provided the actual physical treatment to the patient did not contact or consult Dr. Vashi for any sort of medical opinion; (2) Dr. Vashi received and reviewed the test results only after the patient had been discharged, not while the patient was still at the hospital; (3) Dr. Vashi’s EKG report was not used to assess or treat the patient’s condition; and (4) no physician relied upon Dr. Vashi’s EKG report to make a diagnosis. Fortunately for physicians, the Appellate Court found the factors weighing against a physician-patient relationship to be more persuasive. Therefore, the Appellate Court upheld the directed verdict in favor of Dr. Vashi.

In so holding, the Appellate Court found it important that tests reviewed by Dr. Vashi were readily available to and were reviewed by the emergency room physicians. The emergency room physicians used their own review of those tests and their own judgment to guide their diagnosis and treatment. Dr. Vashi was not actively involved in the diagnosis or treatment processes. The fact that Dr. Vashi “perform[ed] a service” and billed for the same was not controlling since that service was performed after the patient’s discharge.

This is certainly a favorable defense holding in that it allowed a physician to avoid a physician-patient relationship even though the physician had reviewed the patient’s tests, issued a report specific to the patient and billed for those services. Again, however, it must be remembered that there are a number of cases outlining when a physician-patient relationship might exist and the determination is always fact specific.

II. Can an Expert of a Different Specialty than Defendant Testify Against the Defendant?

In the recent decision of McWilliams v. Dettore, the Appellate Court analyzed whether a hematologist was qualified to testify against a surgeon. The Court noted that a hematologist could, theoretically, be qualified to testify against a surgeon. However, in this case, this particular hematologist was not qualified to testify against this particular surgeon.

The plaintiff claimed that the surgeon failed to order and/or perform a biopsy, despite a radiological report identifying masses and suggesting a biopsy. The plaintiff’s standard of care expert against the surgeon was a hematologist. The hematologist was board eligible in hematology and oncology, but not board certified. He was not board certified or board eligible in surgery. Ten percent of the hematologist’s practice was devoted to internal medicine, while the other ninety percent was devoted to hematology/oncology. The hematologist admitted that he would refer patients to a surgeon for biopsy.

The defendant moved to bar the standard of care testimony of the hematologist. Plaintiff argued that although the hematologist could not perform a biopsy, the hematologist knew when a biopsy should be performed. The trial court granted the surgeon’s motion in limine and barred the hematologist’s standard of care testimony. Plaintiff appealed.

The Appellate Court stated:

To render standard of care testimony against a medical practitioner, a proffered expert must be scientifically or medically qualified. To be medically qualified, a two-prong showing must be made. First, the expert must be a licensed member of the school of medicine about which he or she propose to opine, the ‘licensure’ prong. Second, the expert must be familiar with the methods, procedures, and treatments that similarly situated physician as the defendant would ordinarily observe, the ‘familiarity’ prong. The showings regarding scientific qualification are foundational requirements and form a threshold determination. If this threshold determination is not met, the analysis ends and the trial court must disallow the expert’s testimony.

 

Accordingly, the Appellate Court analyzed the hematologist’s qualifications under the licensure and familiarity prong.

The court held the hematologist met the licensure prong as he was a licensed medical doctor and so was the surgeon. The question was whether the hematologist could meet the familiarity prong. The Appellate Court noted that simply because the expert was not of the same speciality was not controlling. A physician of a different specialty can still demonstrate sufficient familiarity to testify. However, in this case, the hematologist did not meet the familiarity prong.

For the hematologist to be qualified, he had to possess familiarity with the standard of care for determining when a biopsy, a surgical procedure, should be performed under the circumstances presented by this patient. Nothing in plaintiff’s attempts to qualify the hematologist so stated. The hematologist could not perform a biopsy, held no surgical privileges and conceded that he may disagree with surgeons as to whether a biopsy need be performed. That he and a referring surgeon might disagree is evidence that the decision to perform a biopsy is inherently tied to a surgeon’s training. The Appellate Court thus found that the hematologist was not qualified to offer opinions critical of the surgeon.

 

Originally published in the Spring 2009 edition of Quinn Quarterly.